Balkinization: Federal court strikes down NSA domestic surveillance program

Comments:

Thanks for the timely analysis of the opinion.

In tactical, or practical, terms, when this case is appealed to what degree and in what ways will the failure of the Detroit court to address certain arguments affect the ability of the plaintiffs to give those issues some purchase?

The opinions rendered by SCOTUS often seem to ignore or grossly marginalize basic issues and even findings of fact. Sometimes this involves ignoring/marginalizing things that lower courts have addressed, of course. But my question is, when a lower court fails to address issues as in this case, to what degree does it tend to put them out of play during the appeal process?

# posted by

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# posted by

D. Ghirlandaio : 2:48 PM

JB,

I, too, wish the opinion contained a meatier analysis of the merits.

You say, "The fact that the court does not bother to meet the government's claim that FISA is unconstitutional is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that reheases the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point."

We should remember that while the adminstration has made many legalistic "claims" in the court of public opinion, and that those claims have been bolstered by surrogates in the political arena, the adminsitration has been much more reticent to make such claims in a real court. In this case, DOJ rested most of its weight on the state-secrets-privilege issue, which is really procedural.

It was only because Judge Taylor refused to buy the state-secrets claim up-front that DOJ was compelled to argue the merits at all. I know from paraphrased news reports that government did defend the merits somehow in oral arguments, but I don't know any specifics.

On the particular issue you name, "the government's claim that FISA is unconstitutional," I note that even DOJ's 42-page press release (a/k/a "white paper") on the legal issues, the administration stops short of making this claim forthrightly. It really is an as-applied claim that itself depends on the AUMF. Some surrogates have argued in public that FISA is unconstitutional, but I don't think DOJ has done more than what Judge Taylor said, "suggested the unconstitutionality of FISA."

Now it will be more difficult for the administration to fudge that issue.

I have some doubt that the full range of Taylor's opinion -- especially the First and Fourth Amendment issues -- will hold up on appeal. But it doesn't have to in order for DOJ ultimately to lose if the merits are reached at all. Judge Taylor's ruling on the statutory violation of FISA, and her rejection of the AUMF red herring, ultimately may be more significant. (Of course, the issue of standing, perhaps the plaintiffs' biggest vulnerablity, still can be readdressed at every level of appeal.)

# posted by

JaO : 3:00 PM

I also am puzzled by the lack of reference to Hamdan. That case directly dismissed the "inherent authority" and "AUMF" arguments with respect to military tribunals, and seems far and away the strongest precedent for dismissing those claims as to the NSA programs as well. Also puzzling is the lack of mention of Art.I s.8 cl.14 ("[Congress shall have power] To make Rules for the Government and Regulation of the land and naval Forces") and the 50 USC 1809 (penalties for violating FISA).

As for the question about whether this opinion prevents litigants from raising additional legal arguments on appeal, it doesn't. As long as a party raises an issue at trial, she can pursue it on appeal irrespective of whether the trial court mentioned it in its opinion.

# posted by

Tonal Crow : 3:20 PM

I agree completely. However, I find the court's reasoning concerning the state secrets doctrine and the standing issue to be far more detailed and persuasive, and those are very important points along the road to a final adjudication.

# posted by

Steve : 3:32 PM

I liked this part:

...it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control,...

I would hope the higher courts will address this concern.

# posted by

NAL : 3:53 PM

Can't the program be justified under the 4A by analogy to sobriety checkpoints (Michigan Dept. of State Police v. Sitz) or airport searches?

I am happy to see the program challenged, but I still think the statutory argument against it is the strongest.

# posted by

Mark Field : 3:55 PM

My question is whether the Executive will comply with the Court's Order to shut down the program, and how will we know if it doesn't?

# posted by

S : 3:57 PM

Remember that the Electronic Frontier Foundation's domestic spying case is alive and ongoing. 17 newer domestic spying lawsuits have been transferred to this jurisdiction.

The EFF filed in January to get Judge Walker's ruling against state secrets. The EFF's lawsuit created an environment and energy for additional affidavits and newspaper articles that in turn helped all the newer lawsuits.

I think what the EFF does is critical, but unfortunately no major blogger has credited the EFF as a small donor-supported non-profit. Because I know EFF people and I'm a supporter I think this isn't good.

If you blog and you like the EFF's work, but you haven't mentioned that they're a non-profit, please consider giving them a shout-out.

# posted by

Kathryn in Sunnyvale : 4:41 PM

As the judge caveats, Plaintiffs and Defendants provided volumes of material in camera and ex parte. This makes me wonder how much of the opinion legally would be deliverable exclusively in camera and ex parte; that is, we are working with a judgment rendered based on facts many of which are not public, yet, the opinion is public.

The judge goes to great lengths to avoid the graymail quagmire, and Plaintiffs have encouraged keeping as much of the case as possible in the daylight not in chambers, agreeing to limit discovery and to rein back claims by basing the injury on already published information rather than prying into secret programs.

I think there is a bit of sixth court politics in the distribution of gaps in the opinion, as well; and the opinion writing shows appreciation of the possibility that future cases very far removed from the subject matter in this case might nevertheless reference the instant judge's reasoning with respect to first and fourth amendment rights of citizens.

Another factor in the writing, I believe, hinges on the recent assignment of seventeen cousin cases to the Hettings court, although reportedly there remain a further sixteen cases not assigned to judge Walker.

I was disappointed in the partial summary judgment acceding to the motion to dismiss the data mining portion of the Complaint; but I suspect there are so many commercial effects of ruling in that narrow sphere that congress likely will need to get involved before a court will be willing to evaluate what constitutes a datamine. This is a dynamically changing part of the legal landscape in the executive, in congress, and in academic colloquy at the present.

# posted by

JohnLopresti : 4:44 PM

An article August 11, 2006 describing the Walker court's seventeen new cases similar to Hepting (revised spelling).
J.

# posted by

JohnLopresti : 4:55 PM

Just a brief comment because I haven't even had a change to look @ the opinion yet.

Jack Balkin said the following:

The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect.

I think that represents an unnecessarily anemic view of the ways that government surveillance can create a chilling effect. (I recently made an extended version of this argument here.)

First, rule out complete secrecy. It's not seriously possible for a government surveillance program to be completely secret, at least not as our government is currently constructed. The public knows that something is going to be watched. It's rightfully suspicious of the government with its history of domestic spying from J. Edgar Hoover onward. And these things very frequently leak out in some form or another.

At best, then, any government surveillance program is going to be only partially secret and only temporarily secret. So what does this do to the chilling effect?

I think partially secret programs are more likely to create a chilling effect than public surveillance programs. If the government openly puts cameras on the streets (say), then everyone knows when they're being watched, and, more importantly, when they're not being watched.

A partially secret program, on the other hand, is a perfect Foucauldian panopticon. You know that you might be watched, you have no real choice but to act as if you're being watched (assuming you can't determine the probability of being watched and the cost to acting out while being watched is very high, both true here), even when you're not watched.

An open surveillance program chills speech and other activity only from those who have good reason to believe they are targeted. A secret surveillance program chills everybody.

# posted by

Paul Gowder : 5:29 PM

As I've followed the arguments, I agree with J.B.'s judgment; but again as a matter of politics I think the debate may have changed. One can argue without being either a cynic or a 'realist' that politics helps to define or redefine the sort of arguments a reasonable person may be supposed to engage. The weak argument forcefully made: the force itself may provide the room for stronger ones to take hold. I think that may be the case here.
I hope so of course.

"Breaking the law".

# posted by

D. Ghirlandaio : 6:31 PM

I think the case would be completely re-litigated at the Sixth Circuit no matter what Judge Taylor had written. Both sides will bring their A game to the appeals court; certainly the government will have new lawyers, and I wouldn't be shocked to see some changes on the plaintiffs' side. Amici will play a bigger role as well.

# posted by

CharleyCarp : 6:37 PM

I'd like to agree and amplify upon Kathryn's praise for the EFF. Their role in bringing this case to the public's attention is critical. The courts will not be influenced by public opinion, but the political tone of the country and the activities of the legislative might be.

I have seen the EFF speak at several computer security conferences, most recently at Defcon. It was an inspiring scene to experience 1000 hackers break out into raucous applause as the EFF described their legal challenges to the NSA domestic surveillance program. This is a highly intelligent, energetic group; and the EFF is getting them engaged civically.

The EFF is stretched thin these days. The Internet cum modern-world isn't a series of tubes. It's a dyke. And they're plugging the holes of fair-use encroachment, free and anonymous speech online, online privacy, and electronic voting.

Ask yourself, have progressive law and policy interests kept pace with the introduction of all of our new, oft disruptive, technologies? The need for the EFF is far greater than what it can currently hope to address. Please support them with publicity, money, and energy wherever you can.

# posted by

athomas : 6:56 PM

Much as I can often be accused of picking nits...Goodness - HOW many reasons DOES she NEED to throw in this opinion to hold that this NSA program is blatantly violating the Constitution for you, Jack? Isn't finding it objectionable at all a WIN?

I just hope the appeals courts - as far as they go - uphold this and they can add as many ancillary arguments as they care to...Frost that CAKE to 5-Tiers for all I care...but Uphold this ruling!

:-D

# posted by

Karen McL : 7:29 PM

Let me suggest that she may have done the plaintiffs' cause no good with this opinion, because one of the problems has always been standing. She essentially bootstrapped standing in based on the 1st Amdt. claim, which is somewhat dependant upon the 4th Amdt. claim - which I don't think she seriously addressed.

In any case, an appeals court probably would probably have a fairly easy job at knocking this house of cards down - for example, by rejecting the 1st Amdt. claim. And if they do, then this may be precedent against standing in further cases.

# posted by

Bruce Hayden : 7:33 PM

Seems to me like she just decided she simply wasn't going to indulge them at all. The whole opinion really revolves around two key points...

"[T]he court finds Defendants’ argument that they cannot defend this case without the use of classified information to be disingenuous and without merit."

And...

"FISA’s history and content, detailed above, are highly specific in their requirements, and the AUMF, if construed to apply at all to intelligence is utterly general. In Morales v. TWA, Inc., 504 U.S. 374 (1992), the Supreme Court taught us that “it is a commonplace of statutory construction that the specific governs the general.” Id. at 384. The implication argued by Defendants, therefore, cannot be made by this court."

Boil it all down, and gist of it is nothing less than the obvious truth: the administration is breaking the law and their legal arguments are fraudulent.

# posted by

Charles Gittings : 12:16 AM

It's the datamining that concerns me, and Judge Jackson allows that one under the state secrets privilege. If we want the administration using social networking analysis to model all of our relationships, based on our email, our VOIP, our blogs, and God knows what else, then Judge Jackson just enabled that.

Seems to me that "secure in my papers and effects" ought to mean my digital papers and effects, this being the 20th C not the 18th.

# posted by

Lambert : 2:03 AM

Here is something to consider in light of the above article. FISA actually creates a civil remddy for "persons aggrived" by a violation of the Act, In fact, a "person aggrieved" is even defined by FISA as someone who is targeted or other wise subject to electronoc surveillance in violation of FISA to bring a civil action for damages being the less of the actual damages or $1,000, plus attorneys fees. Maybe I'm missing something here but is there any reason why the action could simply not have been brought as a straight forward statutory action for damages rather than declaratory judgment and injunction?

# posted by

jonerik : 10:40 PM

I can't follow much of what everybody is saying, but will risk another comment anyway.

" The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Not legalese, but plain and simple English that we non-lawyers can understand.

Why obfuscate? The law is for all of us.

# posted by

Beam me up Scotty : 12:20 AM

aliberallibertarian, you say: Not legalese, but plain and simple English that we non-lawyers can understand. Why obfuscate? The law is for all of us.

The Fourth Amendment, as you quote, prohibits "unreasonable searches." But what is an "unreasonable search"? The Fourth Amendment does not say. What is reasonable to you might be unreasonable to me. Therein lies the need for judicial interpretation. It creates a body of law which establishes what is and is not a reasonable search. Unfortunately, the body of law can be quite complex and therefore is only fully understandable to those who are trained in the law.

# posted by

WriterAction : 1:55 PM

JB, you blame the judge for not raising some issues, particularly the Hamdan decision. But the Hamdan decision was not released until June 29, which was too late to be discussed by the litigants in ACLU v. NSA, and it therefore would have been improper for the judge in ACLU v. NSA to consider the Hamdan case in her decision. The Hamdan case can presumably be raised in an appeal. Courts generally frown upon the raising of issues for the first time in an appeal, but I presume that an exception will be made for the Hamdan decision because it came too late for the district court litigation. There may be other issues that the judge did not raise because the litigants did not raise them.

As for the issue of whether the plaintiffs were "injured-in-fact," there is no express "injured-in-fact" requirement in the Constitution. This "injured-in-fact" requirement, along with the requirement of an actual dispute, i.e., a dispute that is not unripe or moot, are based on the "cases" and "controversies" provisions in Article III of the Constitution. But any dispute can be a "controversy," including a dispute over an unripe or moot question, so these requirements of injury-in-fact and an actual dispute are actually results of arbitrary court interpretations of the words "cases" and "controversies." Also, in supporting the "injured-in-fact" requirement, the courts have argued that an "injured-in-fact" plaintiff is more likely to be diligent in pursuing a lawsuit than a mere "concerned bystander" would be. Also, these requirements were introduced for the purpose of conserving judicial resources by reducing the number of suits that could be brought before the federal courts. The "injured-in-fact" requirement has not been strictly enforced -- for example, environmental laws have "citizen suit" provisions that allow people to sue for enforcement of these laws without requiring a showing of personal "injury-in-fact." Anyway, enforcing the "injury-in-fact" requirement -- which is not even explicitly in the Constitution -- at the expense of allowing a violation of the 4th and possibly 1st amendments would IMO be straining at a gnat and swallowing a camel. Also, a lot of people use the principle of expediency to argue logically in favor of violations of the Constitution or the laws, but as Sir Thomas More said in the play "A Man for All Seasons," "The world must construe according to its wits. This court must construe according to the law."

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