Balkinization  

Friday, August 18, 2006

The secret advantages of Judge Taylor's opinion in ACLU v. NSA

JB

Marty and I have noted the problems with Judge Taylor's opinion, even though we both agree that it reaches the right result. Why did Judge Taylor rush out such a sloppy opinion in the way she did? Some people have speculated that it was to hog all the glory for herself. But that's not the only possible reason. Judge Taylor has been on the bench for many years, and, presumably, she knows how the appellate process works. In this post, I try to show that strategically, at least, Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal.

Judge Taylor knew that most of other lawsuits challenging the NSA program were being consolidated in California, and hers might be as well. She might have wanted to ensure that the 6th Circuit got to pass on the NSA case in addition to the 9th Circuit. The more circuit courts that passed on the case, the greater the chance that one of them would hold the way she thought the case should come out, and present a favorable record on appeal to the Supreme Court. But more important, she might have noted that the Supreme Court regularly reverses the 9th Circuit, and that the judges on the 6th Circuit might do a better job with the case, or, at the very least, their work would be viewed with less skepticism by the Justices.

Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal.

Judge Taylor's opinion did both of these things in her opinion. First, she raised as many claims on the merits as she could think of, even if her analysis skated over the surface and didn't provide the best arguments for both sides. This puts the Justice Department in an interesting position. The DOJ takes the view that courts can't possibly resolve the legal issues on the merits because state secrets are involved. But because of Judge Taylor's scattershot approach, it will have to make arguments on appeal showing why her arguments are wrong on each issue; that will undercut its claim that the legal issues can't be disposed of without revealing privileged information.

Second, Judge Taylor found as a matter of fact that the secret materials she viewed ex parte don't affect the resolution of the case, except for the data mining claim. If that is a pure question of fact, it is subject to the clearly erroneous standard. Of course, if it is a mixed question of law and fact-- which I think it is-- it is subject to more searching appellate review. But either way, Judge Taylor made factual findings that help the plaintiffs on appeal, even if her analysis of the merits is rejected. It may not be accidental, then, that Judge Taylor spent more time on the state secrets issue than she did on the merits. She may have reasoned that the 6th Circuit would do the merits over anyway, but as a trial court judge she could have the most effect on the procedural issues.

Because Judge Taylor undercut the DOJ's state secrets arguments in the ways I have suggested, on appeal the DOJ will probably emphasize standing even more than it already has. But here's where Judge Taylor's rather innovative First Amendment argument comes into play. To win on standing, plaintiffs need not win on the merits; they need only show that they raise colorable claims of rights violations that injure legally protected interests that courts can remedy. The first amendment argument-- that the secret program chills protected expression and association-- is not a very good argument in its current form, but it is a colorable argument. It will take some work to defeat it. And that fact helps secure the plaintiffs' standing. By making what is not a particularly good argument about the First Amendment, Judge Taylor enabled the 6th circuit to address what is really the best argument-- that the NSA program violates Congressional law, in particular FISA.

Judge Taylor's opinion isn't really very good as a discussion of the merits. But district court judges know that this isn't the only thing that matters. Time will tell whether Judge Taylor's work on state secrets and standing pays off and keeps her ultimate judgment-- that the NSA program is illegal-- from being overturned.


Comments:

If I were so cynical as to think that judges pay attention to what is going on in political venues, I might think Judge Taylor considered that effect in rendering this decision.

By finding both Fourth and First Amendment violations, rather than just a violation of FISA, this opinion creates potential problems for the pending bills in Congress that one way or another would legalize the NSA surveillance. It will take more creativity to argue that Congress can cure what the judge calls a fundamental violation of the Bill of Rights.

Chairman Specter, already wearing at least two faces in this debate, has said he wants a judicial answer to the question of whether the warrantless NSA surveillance is "constitutional." He just got one.

The other political effect is on public opinion. (Some may have noticed that an election is pending.) The Bush team's talking points obviously spin this a case of a liberal Democratic judge crippling the President's noble efforts to fight terrorism. This message is aimed not so much at the political center, but at "energizing the base."

I think this political effect is two-edged. There is a myth, unsupported by any polling data I have seen, that the public overwhelming favors the domestic surveillance program. As I recall, polls have been roughly divided on this issue, depending on how the question has been asked. Poll questions that emphasize fighting terrorism get a slight plurality in favor of the program; poll questions that emphasize the lack of warrants get the opposite result.

My feeling is that a public majority wants terrorist suspects surveilled, but wants it done legally. I have never seen any poll that expressly addressed the legality of the program. Now that a judge has declared it to be "illegal" and "unconstitutional," I think some of Bush's support on the matter from the center will dissipate.
 

Fascinating. I knew there had to be some reason that a judge as qualified as Glenn Greenwald says she is would write (what's been described as) a borderline-incoherent decision. I hope she knows what she's doing with this.

Incidentally, did her decision come out particularly quickly, or just poorly developed?
 

Great post. Now, what happened to that rhetoric about "rule of law" and "separation of powers." Now we see what judicial supremacy really means--it means that judges can play games that no one else can play, and they are lauded for it, not criticized.
 

Does it matter that the FISA's constitutionality has never been challenged?
 

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