The Sixth Circuit Opinions in the TSP/FISA Case

Marty Lederman

As most of you know by now, the U.S. Court of Appeals for the Sixth Circuit today vacated the order of Judge Taylor in ACLU v. NSA, and ordered that the case be dismissed because, in the view of two of the three judges, the plaintiffs lacked standing to sue. No judge agreed with any other judge's analysis of the standing question.

Judge Gilman was the only judge to reach the merits. He did the right thing -- he ruled on the FISA question without reaching the First and Fourth Amendment questions. And he held, correctly, that the TSP program violates FISA, and that enactment of the AUMF does not alter that result. His analysis of the statutory question (pages 58-61) is excellent. He also holds that FISA is constitutional as applied to this program, i.e., that the President does not have an Article II power to disregard the statute (pp. 62-63). I think this conclusion is correct, too; unfortunately, Judge Gilman could have done more to defend it -- he merely holds (quoting the Jackson concurrence in Youngstown) that the President's Commander-in-Chief authority is at its "lowest ebb" here, without fully explaining why the President loses at the lowest ebb in this case.

The standing analyses of the three judges are complicated -- real FedCourts inside baseball. I think it will be difficult to explain to laypeople what constitutional value is served by not allowing the courts to reach the merits -- but that's largely a function of the Supreme Court's modern standing doctrines, which require dismissal of many cases where there is incontrovertable adversariness and where the issues are fully and expertly joined. (I don't mean to suggest that this case should be dismissed under governing precedents -- only that the Court's standing doctrine is a mess, and does not especially well serve any constitutional value underlying the Article III requirement that there be a "case or controversy.")

[UPDATE: Let's put it this way: This is not a case in which the govenment's alleged unlawful conduct did not harm anyone and in which the judiciary is therefore merely being asked to sit in judgment of a coordinate branch's lawfulness -- something that arguably is better suited for the political branches. There is no doubt that many, many U.S. persons were legally injured by the TSP program (at least to the effect their statutory rights under FISA were violated). Indeed, it is almost certain that some of the plaintiffs and/or their clients were surveilled under TSP (and would not have been surveilled, certainly not to the same extent, if the NSA had complied with FISA -- see below). Therefore, even if one accepts the modern Supreme Court standing doctrine, there are some plaintiffs out there with standing to sue -- at worst, we simply can't tell who those persons are. (Moreover, such indeterminacy and uncertainty about the scope of the program actually increases the number of persons who fear such surveillance and whose speech is therefore chilled.) And it is highly likely that there are persons with standing among the plaintiffs themselves.

Where that is the case, and where the only reason we cannot identify for certain which plaintiffs were surveilled is because of the wrongdoer's own secrecy, wouldn't that argue for at least a rebuttable presumption that there are some in the plaintiff class with standing? Indeed, isn't that presumption even stronger here because the NSA is unwilling even to claim, let alone to prove, that it did not surveille any of the plaintiffs or their clients in the TSP program? (If the NSA did not, in fact, surveille any of them, I can think of no good reason -- certainly not a so-called state secrets privilege -- why the agency could not inform the court of that fact.)

To be sure, we don't know for certain which plaintiffs, or which clients, were surveilled. But why should that fact change the Article III analysis? What constitutional value is served by allowing that type of uncertainty -- wholly a function of the government's own refusal to identify the victims -- to be grounds for avoiding a resolution on the merits? As the Court explained just three months ago, "Article III of the Constitution limits federal-court jurisdiction to 'Cases' and 'Controversies.' Those two words confine 'the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" Massachusetts v. EPA, 127 S. Ct. at 1452 (quoting Flast v. Cohen, 392 U.S. at 95).

Surely this litigation, as much as any in memory, is being litigated in an adversary context and in a form capable of resolution through a judicial process -- or it would be, anyway, except that the government refuses to act as an ordinary adversary (offering the strongest possible defenses, etc.), because it invokes the state secrets privilege (which raises a whole other set of questions entirely). There is no doubt whatsoever that the ACLU will provide the courts with as strong and complete a case against the legality of the TSP as virtually any other imaginable plaintiff. The legal questions, therefore, would not be resolved "'in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.'" Id. at 1453, quoting Kennedy's concurrence in Lujan, 504 U.S. at 581.

Accordingly, it is very difficult to see any justification based in Article III principles for denying standing here.

See also Dan Solove's excellent post about First Amendment "chilling effects."]

One other small but potentially important point on standing: Judge Batchelder reasons (pp. 19, 21-22) that the injunction would not provide any relief to the plaintiffs and their overseas clients -- would not reasonably be thought to change their behavior -- because, in her view, even if the NSA were required to comply with FISA, it would undertake the same surveillance, only pursuant to a court order, even if the TSP program were enjoined.

There is good reason to think this is mistaken. From all that appears, it seems that the NSA program involved surveillance that would not be approved under FISA if the administration were to seek authorization by a FISA Court under the statute. According to the Administration, under the program the NSA must only find "reasonable grounds to believe" that at least one party to the communication is a member or agent of al Qaeda or an "affiliated terrorist organization"—a standard that could permit wiretaps of the phones of targeted U.S. persons in the United States who are not themselves al Qaeda agents. Thus, it appears that under the TSP program the NSA did not (and could not) demonstrate in every case that there was probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power, nor that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power." And without such showings, a FISA court order must be denied. 50 U.S.C. 1805(a)(3). Indeed, it appears that the NSA program was designed precisely to get around the fact that such FISA-compliant showings could not be made in many cases.

Thus, the odds are much higher that the plaintiffs and their clients would be surveilled under the TSP than under a FISA-compliant regime. And that increased likelihood of government surveillance might well affect the willingness of such persons to communicate with one another. That does not in and of itself settle the standing question; but it calls into question one component of Judge Batchelder's analysis (which neither of the other judges joined).

[UPDATE: Ann Althouse -- yes, she still law-blogs on occasion! -- has some helpful and detailed analysis on the standing question. For reasons I explain above, I think the redressability and relief hurdles are not as imposing as she suggests. And I strongly disagree with her assertion that the FISA and Article II merits questions are "difficult." But it's her analysis of the injury question that is most valuable:

What Lyons, Laird, and Laidlaw really show, I think, is that the Supreme Court has wavered in how stringently it applies its own test. . . . I would expect the Supreme Court to agree with Batchelder and Gibbons.

But this doesn't mean that the dissenting judge is obviously wrong. Gilman thought fear was enough as long as it was reasonable and well-grounded. Focusing on the lawyers and relying on Laidlaw, he thought they'd done enough to make their fear sufficiently concrete: They showed that they are the sort of persons that the program seems designed to apply to. Isn't that enough like living near the river?

If we concede that there can be flexibility in the constitutional standing test -- and not everyone does -- we might want to use that flexibility and side with Gilman, so that it isn't impossible to challenge a secret program. The plaintiffs couldn't go any further than they did. The government will not let them see the evidence of whether the program was in fact applied to them, because it relies on the state secrets privilege. This is a frustrating bind, but why not resolve it in favor of empowering the court to address the merits of the case?

Do Batchelder and Gibbons convince us to resolve the bind in favor of the government that asserts the privilege? Batchelder arranges things so that the evidence behind the privilege supposedly doesn't matter. Apparently, what the plaintiffs don't know doesn't hurt them: The only injury they have – whether they are being spied on or not – is their fear that they are being spied on. Then -- how neat -- secretiveness avoids the injury.

Gibbons thinks it's important to admit the effect the privilege is having on the standing issue. But then she simply abides by the privilege. It excludes what it excludes, and the plaintiffs are stuck with the consequences. Then -- also neat -- their injury is insufficient because they didn't -- they couldn't! -- show that the program had been applied to them.

Naturally, Batchelder and Gibbons don't acknowledge that they feel a pull in the opposite direction from Gilman. Their context-sensitive response has to do -- I'm guessing -- with sympathy toward the interest in preserving the secrecy of the program and worry that the court's intrusion into this matter would have unpredictable negative consequences. I'd explain Laird and Lyons that way too. You may not like this sort of pragmatism in constitutional analysis, but you can't easily harmonize the case law without it.

Posted 5:11 PM by Marty Lederman [link]