Balkinization  

Tuesday, January 30, 2007

Government Reply Brief in NSA/FISA Case

Marty Lederman

In the case being argued tomorrow in the U.S. Court of Appeals for the Sixth Circuit, the government has filed this reply memorandum in support of its argument that the court should vacate the district court injunction.

The government's reply provides ample reason, I think, why the government ought to dismiss its own appeal -- principally that it is now complying with the terms of the injunction below -- but I must confess that, for the reasons I've already explained, I still do not understand the government's argument for why the injunction should be vacated. "It would be untenable," the brief argues, "to leave the President subject to an ongoing district court injunction that is not subject to appellate review because of mootness." However, (i) if there is any mootness, it is only because the government itself has agreed to act in compliance with FISA, as the district court injunction required; and (ii) more importantly, if the government is committed to acting in accord with FISA going forward, then there is nothing "untenable" about preserving an injunction that requires no more than that. If, on the other hand, the government wishes to preserve the right to act in violation of FISA once again, then the injunction is serving a very real function, at least unless or until an appellate court reverses the district court on standing or state secrets grounds, or on the merits.

The brief speaks for itself, however, and perhaps I'm missing something important, so I encourage interested readers to read it themselves.

Comments:

My own opinion (I admit you are preaching to the choir when you solicit it) is that the linchpin of the government's mootness argument is found in the assertion within this clause on page 8 of the reply brief: "Now that the FISA court has provided independent legal authority for the surveillance challenged by the plaintiffs ..."

But the surveillance challenged by the plaintiffs was, by definition, warrantless surveillance; this surveillance, by definition, is not.

DOJ may mean that the precise operational criteria for surveillance, and the decisions by the NSA supervisors interpreting those criteria, define precisely the surveillance that would be allowed today if the court considered them. There is nothing in the public submissions by the government that support that assumption. (In fact, the terms that have been disclosed do not match the terms used to describe the TSP.) And whether the actual prior surveillance would have been authorized by the court is unknowable because, so far as we know, the FISA court has not considered the facts of the prior surveillance.
 

Suppose the president did something illegal, and a court ordered him to stop, and then Congress passed a bill saying that the thing he was doing was now legal. Well in this case the president was doing something without court approval, and another court told him he needed court approval to do it, and then the first court approved of it. In both cases, the government did not stop or change what it was doing. The administation did not come into conformance with the law, rather the law came into conformance with the administration.

Of course the administration might decide in the future to do something similar, or the court might change its approval, or Congress might change the law. This simply argues that whatever the circumstances are, they are unlikely to be exactly the same as the circumstances that led to this ruling.

The argument on standing makes the point, although it is likely to annoy those who object to the administration's action. The government says that if standing is granted because the fact that they may be illegally listening in to your phone call has a chilling effect on your speech, that now that they can legally listen in to some of your phone calls (and you can't know which ones) there can be no additional chilling effect if they also illegally listen in to a few additional phone calls (since you can't tell which were tapped and which taps were legal or illegal). It may piss you off, but it does make a lot of sense at the same time.

The administration simply argues that whatever future situation might test the same question will do so in a different environment of facts, law, and rulings. This particular badly reasoned an untested decision should not be left on the books.
 

The brief quotes:

"... it would seem inappropriate for the courts to impute * * * manipulative conduct to a coordinate branch of government, or to apply against that branch a doctrine that appears to rest on the likelihood of a manipulative purpose."

I disagree. With this maladministration, that would be the first thought that came to my mind. It ought to be the default assumption.

BTW, I'd note that the gummint's position is that the case is moot because the FISC has issued an order authorising the prospective surveillances. But that's not the end of the story. Isn't there still an issue of law as to whether such surveillances comply with the FISA act (and/or the Fourth Amendment)? If that is not true, there's still a controversy and relief that can be granted. Wouldn't (and shouldn't) the court be able to rule on such?

Cheers,
 

It's as if the Executive does not have standing when asking the court to vacate the injunction.
 

Then there's this little gen from the brief, worthy of our esteemed "Bart" DePalma, Esq.:

"Moreover, plaintiffs argue that injunctive relief against future non-FISA surveillance would redress their injuries because then "plaintiffs would be able to discuss sensitive information again over the telephone and via e-mail." That contention cannot be squared with the fact that even before the FISA Court's orders were issued, persons associated with al Qaeda knew that, regardless of whether their communication were intercepted under the TSP, they might be intercepted through other means, such as FISA."

Quick: Anyone see anything wrong with this 'argument'? "Bart"?

Doubt it.

Answer in next post....

TBC
 

.... The plaintiffs are not "associated with al Qaeda".

Cheers,
 

.... The plaintiffs are not "associated with al Qaeda".

More to the point, I think, is that this language from the description of the TSP is undefined, and no one knows how the NSA supervisors interpreted this loosey-goosey criterion.

By contrast, the public description of the court-approved surveillance hews closely to the rigorously defined terms of the FISA statute, which are interpreted independently by the court.

So we have no reason to believe these criteria in practice are identical, and ample reason to think they are not.
 

Suppose the president did something illegal, and a court ordered him to stop, and then Congress passed a bill saying that the thing he was doing was now legal. Well in this case the president was doing something without court approval, and another court told him he needed court approval to do it, and then the first court approved of it. In both cases, the government did not stop or change what it was doing. The administation did not come into conformance with the law, rather the law came into conformance with the administration.

I fail to see the relevance of this. Scenarios like you describe have happened in injunctive relief cases. Voluntary compliance does not affect the injunction and is not grounds for reversal.
 

JaO:

[Arne]: .... The plaintiffs are not "associated with al Qaeda".

More to the point, I think, is that this language from the description of the TSP is undefined, and no one knows how the NSA supervisors interpreted this loosey-goosey criterion.

By contrast, the public description of the court-approved surveillance hews closely to the rigorously defined terms of the FISA statute, which are interpreted independently by the court.


True too, but Clements and the whiz-kids in the maladministration are claiming that because al Qaeda (supposedly) knew that they or their associates might be tapped regardless of criteria and/or legal authorisation, this somehow makes it OK to tap the plaintiffs and/or their non-al Qaeda contacts without the warrants that ensure that their conversations aren't tapped without probable cause, and somehow makes nominal innocents less afraid to reveal sensitive information over the phone. That argument just makes no sense. It's total baloney. It's illogical. It's an embarrassment to the gummint and to the legal profession. And the most insulting part about it is the tacit assumption in that argument that the plaintiffs are al Qaeda-associated. That's the "BartSpeak&mark;" part of it....

Cheers,
 

Ooops. Meant "BartSpeak™"....
 

Prof. Lederman,

BTW, if through your good offices you come across a transcript of today's oral argument in the Sixth Circuit, many of us in blogland would love to read it.
 

Howard Gilbert:

Well in this case the president was doing something without court approval, and another court told him he needed court approval to do it, and then the first court approved of it. In both cases, the government did not stop or change what it was doing. The administation did not come into conformance with the law, rather the law came into conformance with the administration.

Howard just echoes the arguments of the gummint here almost verbatim. Of course, the rejoinder (as Prof. Lederman pointed out) is that:

1). The law didn't change. The gummint is now contending that it is in compliance with the law and the case is therefore moot.

2). The gummint did change what it was doing. Rather than wiretapping without warrants, it went and sought a warrant -- the basis and scope of which is still unknown, and the lawfulness still undetermined (I'd note that the persiflage about when the gummint started seeking warrants it could get is totally irrelevant to whether they can tap without warrants, except to prove scienter perhaps?). It was tapping without warrants. This was held to be illegal. It now says it is no longer wiretapping without warrants (voluntarily). If the gummint insisted that searches in criminal cases are legal without Fourth Amendment warrants, got called on that nonsense, and then applied for and got a warrant, and then insisted that the "law had changed" and thus no opprbium should attach to the prior warrantless searches, I doubt that Mr. Gilbert here would agree that this was a "change in law", even though some court had now said that ongoing searches with newly issued warrants were legal.

Now the gummint seeks to have the lower court decision, which ruled the previous warrantless program illegal, voided because they contend illogically and counterfactually that the "law has changed". This is sheer sophistry.

Cheers,
 

Am I the only one who finds it disturbing that people are even debating whether the courts can order the government to obey the law?
 

I haven't read the briefs, but does the government address the doctrine that an action that is capable of repetition, but evades the ordinary channels of judicial review, constitutes an exception to mootness?
 

I haven't read the briefs, but does the government address the doctrine that an action that is capable of repetition, but evades the ordinary channels of judicial review, constitutes an exception to mootness?

Yes, but this is not the exception on which the plaintiffs rely. Rather, the ACLU argument depends on a different exception, the doctrine of voluntary cessation. For details, read their brief.
 

John in Nashbille and JaO: I disagree, JaO. As I read the briefing, the "exception" can be phrased both ways, and the ACLU brief argues it in both terms, including citing to Friends of the Earth (heavy burden to show no capability of repetition of operation of polluting factory, even where enjoined factory was already destroyed). Actually it took me a minute, reading the brief, to realize that's what they were doing, because they're not so clear about it for a few pages.

So, John, I'd say the answer to your question is yes; that's the central issue.

JaO, I put your term in quotes because it's more aptly referred to as a case which is not moot, rather than an excepted mooted case (semantics, but there it is).
 

Post a Comment

Older Posts
Newer Posts
Home