20 August 2006
The order to stop the NSA’s wiretapping operation has been stayed, although it is unclear (at least to me) for how long. Of course, the government has appealed the ruling and everyone is wondering if it will hold.
‘There has never been a ruling like this regarding state secrets privilege. This is a ruling that stops a program that the executive branch says is critical to national security,’ Weaver said.
‘This is obviously going to go to appeal and I assume the government is already writing an emergency appeal to get a stay to this injunction, which I imagine will happen,’ Weaver said. ‘This case will go to the Supreme Court.’
The only decision like it, according to Weaver, was a 1973 injunction from Supreme Court Justice William O. Douglas that required the Nixon Administration to cease bombing Cambodia, which he considered to be illegal. That injunction lasted a mere six hours, until Douglas was overruled by Justice Thurgood Marshall.
Weaver is not optimistic that the injunction will stand.
‘This ruling sets up showdown between the state secrets privilege and the Constitution, and we have seen in the past that state secrets wins.’
‘The Supreme Court will take this opportunity to make a very clear statement about an expanded state secrets power. I hate to be so pessimistic, but the opinion in Tenet vs Doe was 9-0, and in that case, they said that sometimes the state secrets privilege should be more powerful.’
The Sixth Circuit will likely clear its calendar to set up a panel to hear the government’s appeal. If they uphold the ruling, the Supreme Court will likely hear the case immediately, as they did in the famous Youngstown case, where President Harry Truman attempted to seize steel mills to end a labor dispute during the Korean War.
Hopefully, the Monday morning news will clear up some of the ambiguities.
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