JURIST Contributing Editor Peter Shane of Moritz College of Law, Ohio State University, says that even in the wake of a federal court injunction, meaningful restrictions on the executive's domestic surveillance program require that both the judiciary and the legislative branches of government assert themselves against presidential overreaching…

If the United States is still celebrating its constitutional freedoms at age 250, we will owe a profound debt to federal judges who faced down the Bush Administration's exaggerated claims of national security power. Judge Anna Diggs Taylor, who yesterday ordered a halt to the NSA's Terrorist Surveillance Program (TSP), will be one of them.

What Judge Taylor's opinion shows most convincingly, however, is that Congress and the judiciary must act together if there are to be meaningful curbs on presidential overreaching.

Congress, for its part, enacted meaningful constraints on electronic surveillance for national security purposes when it adopted the Foreign Intelligence Surveillance Act of 1978. "In enacting FISA," as Judge Taylor wrote, "Congress made numerous concessions to stated executive needs." Overall, Congress succeeded in creating "a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment." It is a system that combines substantial flexibility for the executive with a genuine role for judicial oversight.

A problem for the nation, however, is that, if the President defies FISA, there is nothing Congress can do to protect its handiwork short of impeachment. Unless courts become involved to enforce FISA's constraints, a rogue executive can ignore the law.

This is precisely why the executive has tried so hard to dodge judicial review through procedural hurdles. The government hoped it could escape judicial review because potential plaintiffs could not get the information they need to mount a lawsuit. For example, because of federal standing rules, plaintiffs can only bring federal cases when they can plausibly allege that the conduct they are challenging is causing them (or will imminently cause them) some concrete, individualized injury. If no one knows whom the TSP is targeting for surveillance, it should be hard to identify particular individuals who can make that claim of injury.

The plaintiffs in ACLU v. NSA, however, include scholars and journalists who communicate regularly with individuals whom the government has identified as terror suspects or associated with terrorist organizations. The government has already stated publicly that the TSP targets precisely such persons, so Judge Taylor found that the plaintiffs had demonstrated a specific connection between the TSP and themselves. As to concrete injury, the plaintiffs' argument was simple: Because of the TSP, their clients and contacts were refusing to speak to them by phone, thus making their professional lives impossible. This sort of injury is at least as specific and concrete as others that the Supreme Court has recognized as the basis for standing.

In addition, the government sought to invoke the so-called state secrets privilege, which protects the government from having to divulge military or national security secrets to the detriment of the United States. Judge Taylor observed, however, that the government, through the personal statements of President Bush, had already offered public affirmation of the facts that gave rise to the plaintiffs' case. That is, the government has already announced that the TSP exists, that it operates without judicial warrants, and that it targets communications where one party is outside the United States, even if the other party is within the U.S.

Here, however, Judge Taylor still confronted a potentially knotty problem. The government might also be able to fend off judicial review on the ground that its defense of the lawsuit would require the divulgence of state secrets. Judge Taylor agreed, in fact, that the state secrets privilege did prevent a challenge to the data-mining aspects of the TSP because, without access to state secrets, the plaintiffs (and the court) could not actually determine the nature of the data-mining at issue.

Judge Taylor nonetheless carefully determined that the state secrets privilege did not preclude the government's robust defense of the plaintiff's challenge to TSP wiretapping. The government had already indicated the nature of its defense to that challenge, which is purely a matter of law. The government argues that the Authorization for the Use of Military Force (AUMF) in Afghanistan provides authority for the TSP and that, in any event, the President has inherent national security powers that entitle him to create such a program, irrespective of what any statute might say. Because these defenses do not depend on secret facts, the court can proceed to decide the plaintiffs' case.

But, of course, judicial involvement is not meaningful unless the law actually prescribes substantial constraints on presidential authority. Congress did this with FISA, and Judge Taylor's opinion is strongest in insisting that the President lacks any authority under Article II of the Constitution to go beyond FISA in implementing foreign intelligence surveillance of U.S. persons. (One does wish, however, that her treatment of this point had been less superficial and more detailed.) Thus, Congress played a pivotal role in delimiting presidential power.

This implies a tricky legal question: If Congress had not enacted FISA, would the Constitution itself — especially the First and Fourth Amendments — impose substantial constraints on the President? Do we really need Congress to promulgate standards, as long as we have the Bill of Rights?

The answer, in reality, is that Congress is crucial. To apply the First and Fourth Amendments directly to the President's actions, without any reference to a legislative standard, a court probably would need to explore facts that are protected from disclosure by the state secrets privilege. Thus, even if the President were conducting unconstitutional wiretaps, a court might well be precluded from intervening just because the broader standards of the Constitution might be unenforceable without more detailed factual inquiry.

This is just what makes legislative proposals to weaken FISA so frightening. If Congress explicitly gives presidents the option of conducting electronic surveillance without judicial oversight, the executive branch might implement its program in an unconstitutional way. Yet, without the specific details of how the program is run, the general constitutional limits — as opposed to the more specific and concrete FISA standards — might be impossible to police because of executive privilege.

Things now stand just where they should. A lower court has stood up to the executive, relying on Congress's appropriate determination of the right balance between surveillance and oversight in the foreign intelligence context. Now, it's up to Congress to keep its backbone intact, while higher courts review — and, one hopes, affirm — Judge Taylor's order.

Peter M. Shane is the Joseph S. Platt – Porter, Wright, Morris & Arthur Professor of Law and Director of the Center for Interdisciplinary Law and Policy Studies at the Ohio State University’s Moritz College of Law

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