Balkinization  

Wednesday, January 31, 2007

Audio of NSA Oral Argument

Marty Lederman

The U.S. Court of Appeals has made available an audio recording of today's oral argument in the NSA electronic surveillance case, at this link. The file, however, appears to be enormous, and my computer is telling me it will take hours to download. (If anyone has ideas on expediting the process, please let me know.)

[UPDATE: It appears that it is now available as an mp3 file, which should "only" take an hour or so to download.]

[QUASI-SUBSTANTIVE UPDATE: It was not a very active bench. Judge Gibbons is obviously very interested in the standing question, which was the subject of at least half the argument. No very telling clues as to the judges' thoughts on the merits or the state secrets privilege, except that when Greg Garre suggested that the government's statutory argument would not require a finding that the AUMF has implicitly repealed FISA, Judge Gilman indicated that he disagreed. Judge Gilman is correct -- the government's AUMF argument would, indeed, require a finding that the AUMF has implicitly repealed the "exclusive means" provision of FISA. See pages 4-5 of this letter.]

Comments:

Looks to be a .wav file, on a fairly busy server. When I get it downloaded I'll see if I can't convert it to .mp3 (much smaller file) and repost it somewhere.
 

A 640 MB .wav file! Someone is a sadist.
 

it must have hours and hours of surveillance recordings of suspicious individuals..
I could not think faster way of downloading the file, except if you have fiber optics internet connection that would for sure make the download much faster.
 

Okay, we are all internet savy right? If someone has the file, create a torrent and post the link here.
 

Never attribute to malice what can be explained by incompetence.

The Bush administration and its handpicked DOJ - yeesh.

My system says 25 hours to get this on multi-megabit pipe. That's plenty of time for them to reclassify it, trace me and bust in the door for my possession of unauthorized classified materials. Or for damaging a federal computer system when it crashes.

I'll go with malice on this one. Their sysop is sitting there, laughing.
 

As others have noted - it's a full, CD-quality uncompressed audio stream. Rough estimates say it's just over 2 hours long, but 700Mb for that! Worse yet, the server appears to be attached to the rest of the net via a very very clogged piece of string. It doesn't matter what size net connection you have - the problem is with the ca6.uscourts.gov webserver's bandwidth.

I'd ask the people responsible for the file to consider re-encoding it in a more sane format - if they're worried about MP3's legality (patents&c) there's always the Ogg Vorbis format. Re-encoded, it should be easily possible to get it down to around 50-100M in size.
 

At least the New York Times showed up: Judges Weigh Arguments in U.S. Eavesdropping Case. Reporter Adam Liptak provides what seems a straightforward summary of the arguments.
 

Thanks for depressing me, JaO. The article certainly makes it sound like you can call the panel vote by who appointed the judges. I can only hope Liptak's reporting was skewed by the (typical journalistic) focus on that fact.
 

To the extent that you can tell anything from selective snippets of questions and comments from the panel judges provided by an interested party who disclosed the program to the enemy, it appears that none of the judges are buying the mootness argument, but two of the three are having trouble finding standing for the plaintiffs.

The Government brought up the states secrets privilege on multiple occasions, but there is no indication in the article concerning judges' responses on the matter. I would have liked to hear the judges make comments on the applicability of the state secrets privilege so we could speculate whether the case will be dismissed outright or sent to Judge Vaughn for discovery under the limits of the state secrets privilege.

I would note that the NYT incorrectly represented previous rulings at the district court level.

Several courts have ruled, however, that the administration’s general description and defense of the N.S.A. program meant that it was no longer secret and that questions about its legality could be decided without raising national security concerns.

Except for Judge Taylor's opinion, I have no idea to what cases the reporter is referring.

In the Hepting case, Judge Vaughn declined to dismiss the case at the outset under the Government's argument that plaintiff's could not prove standing under any circumstances without violating the state secrets privilege. The court deferred ruling on that question until the plaintiff's attempted discovery and the court could determine whether the resulting requests violated the state secrets privilege. At no time did Judge Vaughn hold that the court could rule on the substantive issues raised by plaintiffs of the legality of the program. Judge Vaughn's ruling should control the proceedings at the trial level since all these cases have been consolidated in his court.

http://www.eff.org/legal/cases/att/
308_order_on_mtns_to_dismiss.pdf
 

Anderson,

It is regrettable when judges appear to align along those lines.

I continue to think that the biggest uncertainty in this case is all about standing. Unfortunately, doctrines of standing are in such a muddle that they provide judges with a tempting excuse to duck cases with troublesome merits. Notably, in District Court hearings on this case and its close cousin, CCR v Bush, both Judge Taylor and Judge Lynch also pressed the plaintiffs hard on the standing issue.

The other threshhold questions concerning mootness and state-secrets privilege are more newsy right now, but I think they are more readily surmounted than the standing question.

Ultimately, dismissal over any of these threshhold matters might itself be settled in the Supreme Court. Meanwhile, DOJ has taken its expansive theory of state secrets to the Ninth Circuit.

BTW, here is another link to the same NYT story, which should be more permanent.
 

Bart:... so we could speculate whether the case will be dismissed outright or sent to Judge Vaughn for discovery under the limits of the state secrets privilege.

We certainly could speculate, but let's do so with some factual basis. No party is seeking "discovery" in the ACLU v NSA case.

DOJ does continue to assert its broad theory that basically says when the government cries "state secrets" in any case, all parties must simply pull up their pants and go home. Judge Vaughn has rejected that theory, while reserving the possibility that a more conventional and limited theory of state secrets may yet constrain subsequent discovery in that case, and DOJ has appealed.
 

"Bart" DePalma said:

I would have liked to hear the judges make comments on the applicability of the state secrets privilege so we could speculate whether the case will be dismissed outright or sent to Judge Vaughn for discovery under the limits of the state secrets privilege.

The "state secrets privilege" means never having to say you're sorry. As we've seen from the el-Masri and Arar cases -- in fact, from the original Reynolds case. It's a pile of hogwash, designed to cover up gummint embarrassments. There's plenty of ways to protect real sensitive information, but few tools as good as this one to hide maladministration incompetence malice, and illegality.

Cheers,
 

JaO said...

Bart:... so we could speculate whether the case will be dismissed outright or sent to Judge Vaughn for discovery under the limits of the state secrets privilege.

We certainly could speculate, but let's do so with some factual basis. No party is seeking "discovery" in the ACLU v NSA case.


If the Sixth Circuit follows Judge Vaughn's lead and defers a determination on standing until the plaintiff attempt discovery, then they should reverse SJ as premature and remand back to the trial court. The parties are then put back to square one and must proceed to discovery to determine standing.
 

Unfortunately, doctrines of standing are in such a muddle that they provide judges with a tempting excuse to duck cases with troublesome merits.

Very true, and very unfortunate. The idea that the gov't can break the law, while keeping its victims' identities secret, and then rest secure from anyone's having standing to sue ... well, it's pretty brilliant, in that Kafka kinda way.
 

This comment has been removed by a blog administrator.
 

Bart: If the Sixth Circuit follows Judge Vaughn's lead and defers a determination on standing until the plaintiff attempt discovery ...

You still don't get it. Plaintiffs are not now and will not seek discovery. Discovery is not even on the table.

Rather, the ACLU case rests entirely on what has been publicly disclosed about the TSP surveillance program as a whole. Judge Taylor decided the case on summary judgment -- the government did not contest the facts presented by the plaintiffs -- and that decision that is now being reviewed de novo by the Sixth Circuit.

By contrast, discovery is involved in the case against AT&T, to which you refer, in which Judge Vaughn Walker made his preliminary ruling about state secrets. (His ruling is being appealed to the Ninth Circuit.)
 

jao:

I understand that plaintiffs skipped discovery and convinced Judge Taylor to grant them summary judgment.

However, if the 6th Circuit finds, as the comments of two of the three panel members indicate, that plaintiffs have not provided sufficient evidence of standing to support SJ, then either the panel dismisses the case outright for lack of standing or remands to the trial court to enable the plaintiffs to conduct discovery to gather sufficient evidence of standing. If the panel chooses to remand, ACLU has a choice between conducting discovery or being dismissed by the trial court based on the 6th Circuit finding that they do not currently have enough evidence of standing.

ACLU rolled the dice with SJ because they had a favorable judge and very likely the TSP has not actually surveilled any of their clients.
 

"the government did not contest the facts presented by the plaintiffs." This is the core of the problem. It is an absolute policy of all modern administrations never to confirm, deny, or comment on allegations made about the sources and methods of intelligence. The government would not "contest" any allegation made about anything, but that would not turn such allegations into facts.

Normally a defendent is expected to contest allegations of fact, but in this case it was impossible to expect them to do so. Maybe it was the DOJ fault, or maybe it was the court's fault, but the status of many essential questions was not clarified.

For example, one of the most basic questions is whether the TSP fell within the definition of activity governed by FISA. Although the DOJ had clearly stated in many previous documents (the White Paper for example) that it would not answer this question because of national security, they did not clearly dispute the allegation that this was an "uncontested fact" until their brief to the Sixth Circuit. At the District Court level, they spent all their time arguing that this was a "state secret" and omitted to mention that it also was not an accepted fact. [The judge in California was also surprised when the DOJ responded to him that the government had never actually admitted this and that it was in dispute.] Then the ACLU countered that it was too late to dispute the question in the appeal.

Someone or everyone in this case screwed up. While most people are interested in the issues, I await the comments from the Sixth Circuit on who is at fault for the procedural mess.
 

Bart,

If the plaintiffs lose on standing, it will likely be because the court rejects their theory of standing. That theory has never been based on any assertion that they were, in fact, surveilled.

Since the plaintiffs do not allege that they were actually surveilled, I think the COA will decide standing on the basis of what is in front of them. It makes no sense for an appeals court to remand for fact-finding to support a theory that is not even presented in the case.

If the plaintiffs lose on their standing theory, I think, they lose. Of course, that ruling itself likely would be appealed.

I disagree that these plaintiffs, or those in the closely related case of CCR v Bush, chose to move for summary judgment as a tactical call because of the judges they drew. The complaints in both cases were obviously crafted from the beginning on a top-down theory about the TSP program as a whole. The entire cause of action under the Administrative Procedure Act is built that way. Obviously, that strategy avoids discovery entirely because discovery would implicate the state-secrets privilege directly.

Because the plaintiffs do not attempt to discover any secrets whatsoever, the government is left with a lot of far-fetched makeweight arguments trying to make that privilege remotely relevant. All of which beg the response, "So what."

That obviously is not the situation in other cases where plaintiffs actually seek to gain information through discovery.
 

Howard Gilbert: It is an absolute policy of all modern administrations never to confirm, deny, or comment on allegations made about the sources and methods of intelligence. The government would not "contest" any allegation made about anything, but that would not turn such allegations into facts.

The undisputed facts were not allegations, but admissions made by AG Gonzales in public. So the first tactical mistake the administration made could be the White House decision, apparently based on hubris, to have Gonzales and other senior officials announce the program after the initial press disclosure.

It is primarily upon those factual admissions, which were undisputed, that the ACLU and CCR cases are made. The top-down cases basically said: 1) The TSP exists as a government program; 2) It was illegal because it did not employ warrants; 3) The plaintiffs were harmed by the very existence of the program as a whole.

If not for the braggadocio of Bush and Gonzales, no such case could have been constructed.
 

For example, one of the most basic questions is whether the TSP fell within the definition of activity governed by FISA. Although the DOJ had clearly stated in many previous documents (the White Paper for example) that it would not answer this question because of national security, they did not clearly dispute the allegation that this was an "uncontested fact" until their brief to the Sixth Circuit.

This claim is absurd. The Administration, from the moment the illegal surveillance was revealed, has admitted that FISA governs it. In fact, the whole point of the government's mootness argument is that it is now getting FISA warrants. Obviously, that would not and could not be the case if FISA didn't apply.

Here are some examples of previous Administration statements which concede that FISA applies:

On December 19, 2005, Attorney General Gonzales gave a press conference after the surveillance was revealed by the New York Times. He was asked, “If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?” He responded that they had discussed that with certain members of Congress and were advised, “that was not something we could likely get.” Link. There's no point in amending FISA if FISA doesn't apply, so Gonzales clearly understood that it did apply.

At the same press conference (December 19, 2005), Attorney General Gonzales stated that the authorization for the use of force against Al Qaeda on September 12, 2001, satisfied the FISA requirements. It make no sense to claim that the AUMF satisfies the FISA requirements if FISA doesn't apply.

On January 23, 2006, General Michael Hayden, the director of the NSA from March 1999 until the Spring of 2005, gave a speech in which he said that President Bush approved the warrantless surveillance because the NSA needed a “softer” standard (“softer” than the probable cause required by FISA) such as “reasonable basis to believe”. Link. Again, it makes no sense to discuss the FISA standard if FISA didn't apply.
 

Just an addendum to my previous comments about state secrets in this case.

Although most of the DOJ's state-secrets claims are easily dismissed, I am not sure that is true of their claim with regard to the Fourth Amendment prong of this case. Most knowledgeable observers seem to think this is the weakest part of the ACLU case overall.

But even if that prong falls, we are left with the core case that the TSP facially violated the FISA statute. If the court ever reaches the merits of that one, the government will lose and DOJ knows it.

Which is precisely why the entire strategy of the administration, which continues to this day, is to avoid judicial review of those merits at all costs.
 

JaO said...

Bart, If the plaintiffs lose on standing, it will likely be because the court rejects their theory of standing. That theory has never been based on any assertion that they were, in fact, surveilled...If the plaintiffs lose on their standing theory, I think, they lose. Of course, that ruling itself likely would be appealed.

This is true and the reason why I posted that the panel may dismiss the case altogether, even though Judge Vaughn declined to dismiss similar cases before his court which sought discovery.

However, has ACLU actually admitted that their clients were not surveilled? I don't recall ACLU making this argument. If ACLU made this concession, then the case probably will be dismissed outright. If not, the 6th Circuit may remand and allow plaintiffs an attempt to establish standing through discovery to gain evidence of actual surveillance.

However, your analysis is compelling and you have changed my mind. I suspect that the case could be dismissed outright for lack of standing rather than being remanded. Thanks for your take.
 

However, has ACLU actually admitted that their clients were not surveilled?

Obviously, they have no way of knowing. And under the overarching theory of their case, it does not matter. Their theory is that they were harmed by the very existence of the program as a whole.
 

With a FISA warrant the NSA can run the program in the simplest, cheapest, most reliable way. Without a warrant they can either run the program illegally or they can run the program through a less reliable, more complicated way that bypasses FISA. They may want the FISA warrant now to simplify the program, not to legalize it.

The only unambiguous formal statements made by the DOJ are the statements in their brief in this appeal and to the California court. In both cases they say that the question of whether the way the TSP was previously conducted falls under FISA is in dispute.
 

The only unambiguous formal statements made by the DOJ are the statements in their brief in this appeal and to the California court. In both cases they say that the question of whether the way the TSP was previously conducted falls under FISA is in dispute.

This is simply and unambiguously false. First, going back to the December 19 press conference, Gonzales stated, "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires."

That's both formal and unambiguous.

Second, the White Paper (link) does NOT claim that FISA doesn't apply. To the contrary, it claims either (1) the AUMF satisfies FISA (i.e., it DOES apply); or (2) FISA is unconstitutional (i.e., that FISA purports to apply but can't):

1. "The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002), and relevant related provisions in chapter 119 of title 18.1 Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. ... The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA ...."

2. "Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context."
 

Mark Field,

I agree with you about the Gonzales press conference. But I would avoid referencing the the so-called "white paper" in a real legal context because it contains a huge disclaimer in Footnote 5:

To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute “electronic surveillance,” as defined by FISA, 50 U.S.C. § 1801(f).

In other words, everything discussed in the paper is nothing but a hypothetical, designed to blow smoke for political purposes.

That disclaimer, however, is expressly confined to the white paper itself, and does not cover all public admissions made by Gonzales and other officials.
 

Fair enough, JaO. Thanks.
 

In its public briefs, the government said Judge Taylor had taken “the unprecedented step of permanently enjoining a foreign intelligence gathering program authorized by the commander in chief to protect the nation from foreign attacks in wartime.”

I'm confused about "wartime". I thought the government had specifically conceded -- e.g. Gonzales in Senate testimony -- that we are not in a legal state of war, there having been no declaration of war.
 

What happened to the NSA call database part of the case (which the ACLU lost on states secrets grounds)? Is the ACLU appealing?

As I understand it, the administration is not saying they are complying with FISA as a general matter, only with respect to the "TSP". So presumably the call detail database is ongoing, in violation of the pen register provisions of FISA.
 

"the White Paper does NOT claim that FISA doesn't apply." That's not what I said. I said that the White Paper said that the US would not discuss the question of whether FISA did or did not apply because of national security. "5 To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute 'electronic surveillance,' as defined by FISA, 50 U.S.C. § 1801(f)."

This is the whole problem. Those who didn't read carefully assumed that because the White Paper justified the TSP assuming that it was covered by FISA, then the government was admitting what it instead was refusing to discuss.
 

Those who didn't read carefully assumed that because the White Paper justified the TSP assuming that it was covered by FISA, then the government was admitting what it instead was refusing to discuss.

Perhaps that's because the government's statements before that DID admit the fact. Gonzales said so specifically, and the justifications he and others offered did so indirectly.
 

Howard Gilbert: Those who didn't read carefully assumed that because the White Paper justified the TSP assuming that it was covered by FISA, then the government was admitting what it instead was refusing to discuss.

And perhaps those who didn't read the briefs carefully assumed that the admissions on which the plaintiffs rely came from the white paper. They did not, but rather came from other undisputed statements such as those Mark Field quoted above.
 

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This comment has been removed by a blog administrator.
 

Having listened to the arguments, during the part when the ACLU attorney is being probed about standing to sue under the Administrative Procedure Act, I was a little surprised that she did not invoke the doctrine of "zone of interests." I also have not noticed any such reference in the briefs.

This seems a fairly inviting concept, rooted in another case brought under the APA, Association of Data Processing Service Organizations v. Camp. The doctrine seemingly would provide potential cover for finding prudential standing here. (Of course, concrete harm is still required for Article III standing, which is where most of the discussion centered. But the line blurs.)

I think that if judges are inclined to want to reach the merits, and have something respectable to hang their hat on with regard to prudential standing, they are more likely to accept a borderline argument for the Article III piece. Slightly more cynically, one could say that standing doctrines are so unsettled that they resemble a Rorschach test.

FYI, here is an interesting paper on the zone of interests by Jonathan Siegel in the Georgetown Law Journal.
 

"Bart" DePalma missed the boat (unsurprisingly):

However, has ACLU actually admitted that their clients were not surveilled?...

Why should they (and how could they)?

But I'd note a little something that our esteemed attorney "Bart" DePalma, Esq., seems to have missed: They don't need to make any such admission (nor can they); their case doesn't rest on whether they, specifically were wiretapped or not. That fact is irrelevant. I think that JaO pointed that out; I think it went 40,000 feet over "Bart"'s head....

Cheers,


Cheers,
 

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