My only addition is of a practical nature, which is that the decision, even if upheld, should have been worded differently to ensure that all of the proper defendant entities were held to account. Allow me to explain.
Back in the late 1980s, I had the opportunity to have dinner with John Nields, who was lead counsel for the House on the Joint Committee to Investigate the Iran Contra Matter. Nields, as you may recall, was the lawyer who inadvertantly turned Ollie North into a media star and prompted Brandon Sullivan famously to blurt, “I am not a potted plant”.
During that dinner, I asked Nields if he understood going into the Iran Contra investigation that he was conducting really a counter intelligence audit rather than a traditional, albiet constitutional-level, criminal investigation? I probed further, gently asking if knowing that, would he have done things very differently? Nields conceded that he did not realize at the outset those implications. We had a long talk about intelligence operations and investigative approaches, and the limits of judicial/criminal proceedings in some contexts. Nields noted to me that he became aware of the primacy of intelligence implications on his investigative approach way too late in the day. And indeed, he admitted that had he known that, he would have begun and conducted the crucial outset of the investigation very differently.
I mention this because the judicial decision unfortunately is limited to the TSP, which as defined by the court centers around activities at the NSA. As a necessity the court must stay limited to the TSP as that is the exact case and controversy before it. However, it would not surpise me to see some or indeed most of the activity shifted under a different nomenclature so as to elude real but offer hollow technical compliance with the court should the decision be upheld.
I would have preferred that the court make explicit that the private parties participating in the TSP themselves must also cease activity, specificially and including the phoe companies such as AT&T, QWEST, MCI, Sprint, etc. and cable companies such as Tyco. Granted, these companies are properly defendants in other related litigation but are in fact de facto agents of and participants with the NSA in the TSP. More importantly, it would have helped if the Order was worded in a way that made clear that it applied to all Executive Branch entities conducting essentially identical activities even if not technically described 100% identically as the TSP itself.
In other words, other entities bound would include, but not be limited to DNI, CIA, DHS, FBI, etc. Given the intense authoritarian impulse to curcumvent courts, the Constitution, the law and Congress within the Administration, the court should have made clear that it would a violation of the Order for any entity simply to route similar intercept traffic under a different name to a different entity. The CIA facility in Olney, Maryland comes to mind immediately. Equally important for compliance purposes are non-NSA DoD entities both black and non-black. As some have noted, “homeland security” data screening and interception on the East Coast takes place at McGuire Air Force Base, Fort Dix, and Fort Monmouth. And that is only the very barest tip of the iceberg.
The Stiftung firmly believes that it would be a mistake for the Judicial Branch to believe that this regime will meekly comply with a generalized order because of the moral authority of the court. We understand that the scope of an Order is largely pre-ordained in the best of circumstances by the facts, the controversies and parties before it. Nonetheless, these are people determined to implement their visions against in their view “decadent” or “irrelevant” interference to the holiest of secular holies, “national security” - regardless of whether that means Congress or the courts. This is unlike dealing with a res like Guantanamo where compliance is obvious for all to see.
Should the Republicans retain both branches after November, this will be even more true. A Democrat take over of even one chamber on the Hill will be a decisive factor in ensuring compliance. The judicial system even more than a congressional investigative committee is ill-suited for addressing the maniacal drive to circumvent oversight and compliance by the intelligence community, particularly under this regime. Courts should and must craft their orders dealing with the Bush regime carefully keeping this understanding in mind.