This just in: a federal judge in Michigan has ruled, in a suit brought by the ACLU, that the NSA’s warrantless wiretapping program is unconstitutional. Here is an AP story and here (via CNET) is the decision.
On state secrets, the judge here (Anna Diggs Taylor) followed the lead of Judge Vaughn Walker in the EFF litigation against AT&T. As discussed previously by both Derek and yours truly, in that case the government sought dismissal under the state secrets privilege and Judge Walker held that the government had already revealed enough about the program to allow EFF to make its claims without relying on any classified information. Here, Judge Taylor reached the same conclusion (but she did dismiss another claim about the NSA’s parallel data mining program because the Administration has said much less about it so the state secrets privilege applied). There is also a very important ruling that the plaintiffs have demonstrated enough injury from the possibility that they were surveilled in order to have standing to sue (I will need to read that analysis more carefully before commenting on it).
The most newsworthy aspect of the decision, of course, is that it strikes down the NSA program. The court finds the program unconstitutional under the First and Fourth Amendments as well as the Separation of Powers Doctrine, and also finds that it violates both the Administrative Procedure Act and other statutes. As a result, the court issued an injunction against the program — essentially, an order that the program be suspended.
Obviously, expect an immediate appeal, which will go to the Sixth Circuit Court of Appeals, which covers Michigan, Ohio, Kentucky, and Tennesee.