an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
So the battle lines are drawn. What's the next move for those, especially in Congress, who think the NSA program is unlawful?
The first of VP Gore's proposals for dealing with the problem is appointment of a Special Counsel.
Three weeks ago, I wrote here that because the dispute is almost entirely over the proper understanding of the law, it appears that the legal predicate for appointing a Special Counsel cannot be met, and that, in any event, such a Counsel would not be empowered to disagree with the legal judgment reached by the President and Attorney General as to the legality of the NSA program. Since then, friends who know more about such things than I do have just about convinced me that I was probably wrong -- that a Special Counsel could be appointed, and could be empowered to reach an independent legal judgment about the legality of the program.
I won't rehearse those arguments here, however, because they're beside the point: The AG is not going to appoint a Special Counsel with a mandate to review the AG's understandings of the AUMF and Article II; and even if there were a Special Counsel, and even if that Counsel concluded that the NSA program is unlawful, so what? At that point, you'd simply have one lawyer agreeing with a majority of Congress, and disagreeing with the AG. Which would accomplish not much of anything -- no more than if the Special Counsel concluded that the AG was correct on the law. In either case, we'd still be fighting about the merits, and the Administration would still be sticking to its guns. [See the comments below for why a criminal proceeding is virtually unthinkable.]
So, what to do? Even if Congress kicks and screams during next month's hearings -- even if it passes another statute saying "FISA -- WE MEAN IT!" -- the President will continue with business as usual.
My friend David Barron has come up with the simple but ingenious idea that Congress should vote for a statute that would confer statutory standing on certain persons to file a cause of action in federal court seeking declaratory relief that the NSA program is unlawful -- say, for example, persons who have a reasonable basis for claiming that they are chilled by the spying program because their employment regularly requires them to make overseas calls in connection with academic or journalistic work related to the war on terrorism.
That way, the Supreme Court could resolve the question, particularly if the plaintiffs could sue for injunctive as well as declaratory relief.
Of course, the President could veto such a bill conferring standing to challenge his program. But I think there'd be some chance of an override (see, e.g., the overwhelming majorities for the McCain Amendment); and, in any event, presumably such a veto would be politically dicey.
Wintermute: Anyone who participated in the NSA program in reasonable reliance on the AG's (and President's) determination that it was legal, would have a pretty solid due process defense to prosecution. So the only real targets of any criminal proceeding would be the AGs who approved the program, and possibly the Preisdent himself, on some sort of "aiding and abetting by legal approval" theory. That's not going to happen, nor should it (assuming there's no evidence of bad faith).
What's needed is the opportunity for an injunction, not criminal sanctions.
Lawsuits premised upon the "chilling effect" theory have already been filed by, among other folks, some of the lawyers for Gitmo inmates who worry that their attorney-client calls are being taped.
My impression is that this is a non-frivolous but difficult argument. From the fact that Marty suggests a statute that would confer standing on such plaintiffs, I take it he agrees that they will have a hard time establishing standing under existing law.
Someone who was actually wiretapped would have pretty clear standing, I would think, but since it's a secret program there seems no way for the plaintiff to know he has a claim. And the government will surely claim national security as a basis to neither admit nor deny the allegation that a particular person was wiretapped.
This is an interesting proposal, but unfortunately, Congress cannot confer constitutional standing to sue -- that is, Article III standing as currently defined by the Supreme Court precedents -- by its mere say-so. It seems to me that that a suit brought under the proposed statute would encounter huge problems on the question of injury-in-fact, not to mention the admontion against basing constitutional standing on so-called "generalized grievances." That is to say, under Lujan v. Defenders of Widlife and its foul spawn, I don't think such a statutory conferral of standing would amount to a hill of beans. This is a much less effetive approach than the appointment of a special counsel -- FISA, after all, provides criminal penalties for wietaps conducted in violation of its requirements. No standing problem there, only political problems.
Update: I have read Barron's piece after posting above (which I ought to have done first) but I don't think that he has really addressed the Article III problem -- in particular the injury-in-fact and related no-generalized-grievances idea. He just says that the Court is more likely to find standing based on the same unsubstantited (and necessarily unsubstantiatable, given the nature of the violation) chill allegations that are made in the current lawsuit. This is not very persuasive, as the Court is going to go by Congress's say-so in this area. One creative solution is presented by a comment by Scalia in Lujan, suggesting that the case before the Court was not one in which Congress offered "a cash bounty" to a litigant, thus suggesting that the outcome might be different if Congress had. Now Scalia doubtless had in mind the False Claims Act, which provides a private right of action for fraud against the government with an attendant shot at splitting the damages with the government, but perhaps one could try to take Scalia at his word and write in a provision for a fine that can be shared with the citizen-suitor in the event the citizen prevails.
I realize this comment falls somewhat outside of the usual field of JB's blog here. Still, this society appears so sharply split and the president seems so intent on building his power. I wonder if that's happened in the past.
There is at least one group of US tenured internationally consulting-researching professors now seriously discussing the possibility of forming a class under 4th amendment concerns, as intercepted callers; according to some university profs' websites the plan begins with seeking to establish a kind of Do-Not-Intercept database to exclude these tenured US profs from the datamine. But this is oblique and does not address directly the executive authority issue as ML intends. In another perhaps related approach, several knowledgeable discussions this past week are referencing the presidential signing memo historical work of Portland State U's College of Urban and Public Affairs faculty member P Cooper, his capsule biography there; that school's branches have variously primitive websites without research links or personal faculty sites.
The NSA/FBI/Pentagon eavesdropping scandals are of a magnitude that - NOTHING ELSE IS AS IMPORTANT!
All who care for the future of the U.S.A must put this front and foremost - the implications of this scandal DEFINE EVERY OTHER ISSUE! The justifications Bush uses to break FISA law sets him up to be above All U.S and world law.
Every citizen (Congressperson AND constituent) must use every legal method, parliamentary procedure/tactic to stop traffic, manage the debate, sidestep the distractions, and stop all pretense at "business as usual".
Close all congressional activity down to focus on the NSA and related SCANDALS! This constitutional crisis is foundational and dealing with it prerequisite to everything else. Nothing else should matter - for example proceeding with any aspect of the Alito confirmation is akin to judge shopping for the administration.
Endless debates about words people use, beached whales, and all the other pathetic MSM distraction burns up our time.
WE ALL HAVE TO TREAT THE NSA DEAL AS THE SHOW STOPPING, FIST POUNDING, TRAFFIC JAMMING SCANDAL THAT IT IS!!! Damn it anyway...
poll at http://www.dailykos.com/storyonly/2006/1/21/112440/485
From the post: "Alberto Gonzales spoke before law students at Georgetown today, justifying illegal, unauthorized surveilance of US citizens, but during the course of his speech the students in class did something pretty ballsy and brave. They got up from their seats and turned their backs to him."