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The NSA Eavesdropping Opinion and the First Amendment:

The court also holds that the program violates the First Amendment, because it deters some people from communicating with the plaintiffs, given the risk that the communications will be overheard. Note, though, that this judgment rests entirely on the court's earlier conclusion (which is in my view not fully defended) that the eavesdropping violates the Fourth Amendment.

All publicly known eavesdropping -- or for that matter the prospect of possible searches of tangible papers -- poses the risk that some communications will be deterred. Eavesdropping conducted pursuant to properly issued warrants (ones that can be based on mere probable cause, rather than any solid proof that the eavesdropping will yield incriminating evidence) poses that risk. Eavesdropping conducted purusant to properly issued FISA orders, which don't even require probable cause that the speech collected will be incriminating (only probable cause that the targeted person is an agent of a foreign power), poses that risk. Constitutionally permissible border searches of papers pose that risk.

But there's no need to show in any of these cases (as the court in this case suggested) that the search is based on "a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." At most, the Fourth Amendment rules (which generally require only a warrant and probable cause and not a compelling interest and narrow tailoring, sometimes don't even require a warrant, and sometimes don't even require either a warrant or probable cause) are made somewhat more demanding by the First Amendment (see, e.g., Lo-Ji Sales, Inc. v. New York), though even that doctrine is quite limited. And in a case like this one, I know of no Supreme Court cases suggesting that a search that's valid under the standard Fourth Amendment rules would violate the First Amendment.

So the court's First Amendment conclusion, if it's correct, would be correct only if the court is right to say that the program violates the Fourth Amendment, and that a violation of the Fourth Amendment in such a situation yields a violation of the First Amendment. Perhaps the court is correct here, but it's important to recognize that the First Amendment holding is derivative of the Fourth Amendment holding, rather than being a fully independent basis for the decision.

A.S.:
Given the Judge here, I think there was no doubt about how the case would be decided at the District Court level.

My question, let's say the 6th Circuit holds that the 4th Amendment is satisfied, but that the program violates FISA. Do you have a First Amendment violation then?
8.17.2006 3:18pm
SDK:
I've been left quite confused by all the furor on this subject:

Vehicles crossing the border can be stopped and searched, regardless of whether or not they are owned by US citizens or residents.
Packages, containers, etc. crossing the border can be stopped and searched, regardless of whether or not the senders or recipients are US citizens/residents.
Individuals crossing the border can be stopped and searched, regardless of whether or not they are US citizens or residents.

But telephone conversations or email crossing the border are untouchable? If somebody manages to manipulate the communications links so a foreign sender is communicating with a foreign receiver but the traffic passes through US territory would that traffic also be untouchable?

Why isn't the Border Patrol now "unconstitutional"?
8.17.2006 3:37pm
Huggy (mail):
Is this an appointed nutcase judge or an elected nutcase judge? Note that all nutcase judges have to be lawyers. Where they nutcases before, during, or after law school?
Does the legal profession have more nutcases than the population as a whole or does it just seem that way because their neuroses are all publically documented?
8.17.2006 3:40pm
Dan Hamilton:
I have yet to hear how the NSA program violates FISA since the Target is outside the US or is just a throw away phone number. Neither of which requires a FISA warrent in the first place.

Also since no one is talking about using what was found in a criminal prosecution. The point is to STOP terriorists and only secondly maybe prosecute them.

The First is to protect speach. Nothing ever said that speach is risk free.
8.17.2006 3:47pm
Gorjus (mail) (www):
Huggy, this was an appointed, well-respected, long-time veteran of the bench (she has been a federal judge in Michigan since 1979 and is now in her seventies). For those of you, like AS apparently, believe that a judge cannot apply the law and is actually just applying personal beliefs, it's worth noting that she was also an asssistant U.S. Attorney for many years.
8.17.2006 3:48pm
Thorley Winston (mail) (www):
Is this an appointed nutcase judge or an elected nutcase judge?


She was a Carter appointee.
8.17.2006 3:52pm
Tyrone Slothrop (mail) (www):
Jack Balkin does not think much of the district court's reasoning, though he agrees with the holding.
8.17.2006 3:54pm
Scott W. Somerville (mail) (www):
A quick reading of the judge's bio suggests she is a garden variety Carter-appointed "judicial activist." I'm still trying to sort out her standing analysis. She indicates that the plaintiff class has standing because they make telephone calls overseas in their line of work, and that their speech is not "merely chilled" but "chilled plus," or something to that effect. But then she goes on to say the Government could accomplish all its goals by just getting warrants.

If the Plaintiffs speech is chilled by possible warrantless wiretaps, wouldn't it be just as chilled by a wiretap WITH a warrant? Whenever I get on the phone with an overseas terrorist (note: I'm joking!) I always assume SOME government is listening in, whether it's legal to do so or not. So how much real "chilling" would go away if the government is forced to get wiretaps?

The judge notes that if there isn't standing, then this program is essentially unreviewable. Assuming that no American citizen ever faces ANY negative consequences from the program, that would be the case. No damages, no controversy, no Article III jurisdiction.

Let me make a modest proposal: how about if this judge waives her absolute judicial immunity in this case? That way, if some foreseeable event takes place, we can file a damage claim alleging that her ruling was the "but for" cause of the resulting disaster.
8.17.2006 3:54pm
Philistine (mail):

I have yet to hear how the NSA program violates FISA since the Target is outside the US or is just a throw away phone number. Neither of which requires a FISA warrent in the first place.


Take a look at Orin Kerr's Post (which Prof. Volokh cites in his 1st Amendment anlysis). It gives a pretty good run-through (based on what was known then) of why Prof. Kerr thought the program probably did not violate the Constitution, but probably did violate the law.
8.17.2006 3:56pm
BobDoyle (mail):
Hey, I'd really appreciate it if someone with the legal knowhow could answer SDK's question. If the government can stop and search vehicles, packages, and people when they cross the border without warrants, why does the government have to get warrants to "search" telephone conversations or email communications that "cross the border"?
8.17.2006 4:14pm
BobDoyle (mail):
That is, "If the government, without warrants, can legally stop and search vehicles, packages, and people when they cross the border, why does the government ...
8.17.2006 4:18pm
Sub Specie AEternitatis (mail):
Gorjus, Judge Anna Diggs Taylor is an appointed, long-time veteran of the bench. She is not well-respected.

After years of having the professional opportunity to read her opinions, I am not afraid to say, she may very well be the least competent, least intelligent, dimmest hack in the federal judiciary. Her opinions sometimes verge on the incoherent and at best aspire to the sub-literate. She could not construe a statute, much less a constitution, to save her life. In short, in the basic non-ideological judicial craftsmanship department, she is in my experience the worst on the federal bench.

One explanation that she, nevertheless, is a federal judge is biography. Most of the political advancement she appears to owe to her marriage to Charles Diggs Taylor, originally a powerful funeral parlor operator, later a powerful member of the House of Representatives. Later, she jettisoned Mr. Diggs and not a moment too soon--he was convicted of mail fraud in a salary kickback scheme and had to resign in disgrace from the House of Representatives. Unfortunately, that was after judge's new position had become permanent. After Mr. Diggs, the judge married Martin Taylor, another Democratic political operative.

Please forgive the inflammatory tone of this message. It is not motivated by personal or ideological animus and I'll gladly concede that there must judges on the other side of the ideological divide who are (nearly) as incompetent. Conversely, there are many brilliant judge of the same ideological stripe as Judge Taylor who would have reached the same ultimate conclusion. Finally, I'll concede that this conclusion may be correct.

But Judge Anna Diggs Taylor is an embarrassment to whatever side she is on.
8.17.2006 4:42pm
Warsong (mail) (www):
I thought the object of these 'taps was to chill the speech of Terrorists. If the communication does not concern an impending act of Terror (planning, financing, supporting, etc., past or future), then there is no cause to continue to monitor that 'particular' communication. Many legitimate businesses do business with organizations that they could not know are terrorist organs, and, this lack of knowledge should not hold a stigma, or, cause for action.

I would suspect that this would justify some type of warning of 'actionable intent' (by the agency monitoring the communication) should they continue, but, the problem lies in determining the 'intent' and 'foreknowledge' of the person communicating with terrorists. This would quickly separate Good Guys from Bad Guys, because one would instantly shut down any communication or deals, while the other would begin looking for ways to backdoor the operation, and, hopefully, entangle himself in big trouble.

Reading the decisions, and, weighing them against my own beliefs, most of what I'm seeing is a "Hall of Mirrors" exercise in circular logic. My personal belief is that the warrentless 'Taps are constitutional under Presidential Powers, and, the Courts, Congress and MSM should butt out.
8.17.2006 4:52pm
David Walser:
Just wondering: If the good judge were to take offense (not in her personal capacity but in her capacity as representing the court) at Sub Specie AEternitatis' frank assessment of her competence as a jurist, would she be able to find Sub Specie AEternitatis to be in contempt of court and order Volokh, et al, to disclose the real identity of the malefactor?

If that's possible, wouldn't that have a chilling affect on our discussions here in Volokhland? If so, wouldn't the mere possibility of a judge taking such offense and entering such an order violate our 1st Amendment rights, which would mean such an order would be unconstitutional, which would mean the judge couldn't do that, which would mean there should be no chilling effect...
8.17.2006 4:58pm
Warsong (mail) (www):
spelling correction: warrantless, not warrentless.
8.17.2006 5:08pm
Sub Specie AEternitatis (mail):
Mr. Walser, that is certainly a chilling possibility.

But perhaps not too chilling. It seems that if the out-of-court pseudonymous expression on a negative opinion of the competence of a judge, by a person who never had and hopefully never will have any business before her, were sufficient to support a contempt of court order, many a commenter would need to worry.

But perhaps experts on the limitations of the contempt power of federal judges in such cases would care to weigh in?
8.17.2006 5:11pm
Anonymous Liberal (mail) (www):
I think AS raises an interesting question. As a practical matter, I think the chilling effect, if any, depends not so much on whether the government's surveillance is "reasonable" (the 4th amendment question) but from the fact that it is doing it in violation of the law (FISA). From a psychological perspective, it is the knowledge that the government doesn't feel bound by the law (and is therefore theoretically capable of anything) that creates the chilling effect. Therefore, at least arguably, if the government is violating FISA (but not the 4th amendment) there may still be an argument that First Amendment rights are being chilled.
8.17.2006 5:12pm
srg (mail):
Do you think the plaintiffs really had standing, or are there grounds for overruling on appeal here?
8.17.2006 5:14pm
Warsong (mail) (www):
Perhaps someone could answer a question: Doesn't FISA contain a provision exempting constitutional Presidential Powers?
8.17.2006 5:21pm
Zaggs (mail):
Here's my question. When in 2002 the FISA court of Review made their only public opinion and found that "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power." does that just not matter? I would figure the FISA court of review would be the best determination of the issue since they have the most knowledge of FISA except for the FISA court (which is under them) and the second most power (are they not basically a federals appeal court?) of court that is not the supreme court.
8.17.2006 5:23pm
Chris Bell (mail):
BobDoyle and SDK:

Being only a humble law student, I will try to answer your question.

Your analogy about crossing the border is interesting, but I think it fails to convey the true complexity of the situation because it ignores the second party. These telephone communications that are being monitored all have two parties, one inside and one outside the US. It's impossible to eavesdrop one the foreign party without also eavesdropping on the domestic party.

Imagine that the border patrol stops a truck crossing the border. They have the right to search that truck. But now imagine that they ask the truck driver where he is headed and he says "121 Maple St." Can the cops go search 121 Maple St. automatically and without a warrant? Clearly No.

That's the problem with this whole scenario, we may want to listen to calls coming into this country, but we can't do it without also listening to the US-half of the call, and this runs into serious Constitutional "search and seizure" questions.
8.17.2006 5:24pm
BobDoyle (mail):
Chris -- I appreciate your reply.
8.17.2006 5:29pm
SWLiP (mail) (www):
Okay, I'll say it. Even mentioning the 1st Amendment in this context is downright nutty.
8.17.2006 5:35pm
Robert Schwartz (mail):
Not anti-War. Just on the other side.
8.17.2006 5:41pm
Davebo (mail):
Well, it certainly didn't take long for folks with zero legal training to annoint this long time federal judge as an idiotic judicial activist now did it?
8.17.2006 5:57pm
Just an Observer:
Warsong: Perhaps someone could answer a question: Doesn't FISA contain a provision exempting constitutional Presidential Powers?

No.

Perhaps you are thinking of the proposed legislation drafted by Bush, Cheney and Specter, which would gut FISA by making it optional, deferring explicitly to such powers.

Before FISA was passed in 1978, there was a provision in the 1968 Wiretap Act (a/k/a Title III) expressly deferring to presidential authority in the field of foreign-intelligence surveillance. FISA repealed that provision, set up required procedures for warrants approved by the special courts it established, and specified that such procedures are the "exclusive means" for conducting such surveillance. The Bush/Cheney/Specter bill would eliminate that binding requirement.
8.17.2006 6:07pm
Just an Observer:
Zaggs: When in 2002 the FISA court of Review made their only public opinion and found that ... "We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power." does that just not matter?"

The Court of Review found no such thing. That snippet was non-binding dicta.

No court before Judge Taylor's has actually made a ruling on this issue.
8.17.2006 6:12pm
Am I A Pundit Now? (mail) (www):
Davebo: it doesn't always take a law degree to recognize judicial stupidity.
8.17.2006 6:14pm
buzz:
Davebo- not sure. Which one has zero legal training, and how did you know?
8.17.2006 6:25pm
Just Asking:
Chris,

I appreciate your example, but the government isn't seaching the house at 121 Maple Street, it's searching what the house is sending across the boarder.

In your example, it would be like searching the contents of the truck as it comes across the boarder to 121 Maple Street and also searching the truck as it goes from 121 Maple Street back across the boarder.

121 Maple Street itself isn't being searched.

As any truck driver can tell you, searches are done in both directions today by the US government. Generally on the incoming items, but also on outgoing items when warranted.
8.17.2006 6:30pm
Zaggs (mail):
Just a,

Ok so later in the FISA court of reviews conclusion it says "Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance". How can one branch of the government wipe out the inherent powers of another? Is that not the purpose of seperation of powers? Not to mention the congressional research service disagrees with you finding that "The FISA court of Review is a court of appeals and the highest court with express authority over FISA to address the issue, its reference to inherent constitutional authority for the president to conduct warrantless foreign intelligence surveillance might be interpreted to carry great weight." or does FISA now also undermine the authority of every pre-FISA federal court finding in regards to the president inherent powers?
8.17.2006 6:52pm
Chris Bell (mail):
Just Asking:

Well, I think the analogy is breaking down. Yes, you're right; the government isn't actually searching 121 Maple St, just the private international conversations of the resident. I didn't know that the government could search exports (and if you could link and confirm that I'd appreciate it).

The argument that we have no privacy interest in international calls is a potentially strong one, but it is debatable at the least. (And today's opinion came down in my direction, but it is a little shaky at points.)

At the risk of pushing the analogy past its breaking point, now imagine that Congress passes a law saying that "Trucks leaving the US shall not be searched without a warrant." If the same warrantless stop went down, would it be wrong? I would argue that the FISA law is similar to this border law.

This also shows why most critics claim that the program is illegal but not necessarily unconstitutional.
8.17.2006 7:03pm
Warsong (mail) (www):
It would appear that the FISA Court attempts to (unsuccessfully) undermine everyone who would attempt to grant powers that FISA was never intended to have.
8.17.2006 7:10pm
Davebo (mail):

Davebo- not sure. Which one has zero legal training, and how did you know?



Well, generally speaking, when lawyers discuss a judges ruling the normally come up with more specific points than who appointed the judge, who she was married to or what color her skin is.

You know, sort of like Eugene has done.
8.17.2006 7:12pm
Chris Bell (mail):
Just Asking:

My apologies, I just now took the time to go back and read Orin's opinion on the illegality of the program. Yes, we have little to no privacy expectations once we send things across the border, but I stand by the FISA take.
8.17.2006 7:24pm
David Walser:
Chris Bell - [I]magine that Congress passes a law saying that "Trucks leaving the US shall not be searched without a warrant." If the same warrantless stop went down, would it be wrong? I would argue that the FISA law is similar to this border law.

Similar, but different in two respects, both of which may be material. First, suppose the law only requires warrants if the search takes place on the US side of the border. Would the law be violated if Mexico granted US Customs agents permission to search trucks exiting the US on Mexico's side of the border? I'd argue it would not. FISA, by it's terms, does not require a warrant for data collection that takes place outside the US -- until a US Person becomes the target of the surveillance. See 50 U.S.C. §1801(f)(1). To the extent NSA is collecting its data offshore, and assuming no identifiable US Person is the current target of such efforts, no warrant is required and FISA and the NSA program are not in conflict. We don't know where the data collection is taking place.

Second, suppose the Constitution directs the President to inspect shipments out of the US. Could the "truck inspection law" require the President to obtain a warrant before doing what the Constitution requires? I suppose, if the requirement was not considered overly burdensome, a warrant mandate could be imposed on the President. If, on the other hand, obtaining a warrant made it practically impossible for the President to perform his Constitutionally mandated duty, the law would have to yield.
8.17.2006 7:30pm
Mike G in Corvallis (mail):
"Well, generally speaking, when lawyers discuss a judges ruling the normally come up with more specific points than who appointed the judge, who she was married to or what color her skin is."

Think of it as supplemental information, intended to illuminate the judge's decision-making process.

In this case, I'd say that there's a high probability that, if not for "who appointed the judge, who she was married to or what color her skin is," she wouldn't be a judge.
8.17.2006 7:30pm
Chris Bell (mail):
David:

First, yes, the exact wording of the federal law and place of eavesdropping makes a difference here. For example, if we have Bin Laden's phone tapped, Joe Shmoe is probably out of luck when he calls Bin Laden. I will limit my objection to "domestic surveillance", but I include situations where

1) The eavesdropping occurs in the US, or

2) The actual "target" is a US citizen living in the US, even if we actually bug the phones in Afghanistan.

(I suppose the exact wording and interpretation of FISA actually settle this question.)

Second, I agree completely on the Constitutionally mandated search part of what you said. However, I think you would have a hard time convincing me that such searches are actually Constitutionally mandated, especially since Congress has specifically weighed in otherwise. Also, the "burden" imposed by FISA was designed to be very small, so that argument would take some work as well.

I'm enjoying this; it's making me really go back and think over the whole case.
8.17.2006 7:53pm
Just an Observer:
Zaggs: How can one branch of the government wipe out the inherent powers of another?

"Inherent" does not mean "exclusive," it just means implied but not expressly granted in the Constitution. Congress can certainly regulate presidential powers. Read Justice Jackson in Youngstown, a key opinion Judge Taylor cited. Jackson said in part:

Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.


Zaggs: ... or does FISA now also undermine the authority of every pre-FISA federal court finding in regards to the president inherent powers?

What was lawful in the absence of congressional action became unlawful after Congress outlawed it. Read Yongstown again. Lather. Rinse. Repeat.
8.17.2006 7:55pm
Warsong (mail) (www):

"After years of having the professional opportunity to read her opinions, I am not afraid to say, she may very well be the least competent, least intelligent, dimmest hack in the federal judiciary."


Davebo,

What part of that statement tells you that he has no legal training, and, where does he mention color?
8.17.2006 8:04pm
Bruce Hayden (mail) (www):
I agree with the poster who suggested that this was a hall of mirrors. Standing is essentially based on the 1st Amdt. chilling effect of terrorists knowing that they shouldn't talk to the plaintiffs electronically. And, thus, these communications have dried up as a result - which is the harm supporting standing. But then, the 1st Amdt. claim is based on the 4th Amdt. claim. On the other hand, both standing and the 1st Amdt. claim rely on a lack of an expection of privacy, whereas the 4th Amdt. relies on exactly the converse, that there was a reasonable expectation of privacy.
8.17.2006 8:05pm
Huggy (mail):
Gorjus,
Yes I do believe she "...is actually just applying personal beliefs...". I think the same thing of U.S. Attorneys. I think she is no better or worse than J. Edgar Hoover.
8.17.2006 8:22pm
Warsong (mail) (www):
For most of my life, I've been a Second Amendment activist, a strict Constitutionalist, which means more than 55 years, since I first read the Constitution at around the age of 10.

The one thing missing, mentioned only one time in this discussion, is the qualifier, "unreasonable," in the 4th Amendment. The almost total avoidance of this word in considering the "warrantless search" for Terrorists, denies the inalienable "Right of Self Defense" reserved for Nations, as well as Individuals.

That it falls under the 9th and 10 Amendments, cannot be used as proof that it does not exist. It does and has existed since the beginnings of civilization, and, was specifically spelled out in the "Rights of Man," expressed by Ur Nammu, King of Ur, in 2300 BCE. Nothing has changed, and, the gathering of intelligence, by whatever means, is justified by custom and law throughout the history of the world.

When something is used to deny this Right (as are the First and Fourth Amendments in this battle to cripple the War on Terror) the same tactics can be used to deny all other Rights. The act of doing so, in and of itself, is described in the Constitution as treason (described, among other things, as, "aiding and abetting").
8.17.2006 9:12pm
RSwan (mail):
I have seen in other BLOGs that Judge Anna Diggs Taylor is the judge who tried to steer the Michigan Affirmative Action case from the judge assigned by random lots to one she believed more favorable to affirmative action. This was contrary to the rules of the District. She stopped when her action became publicly known. Might this give us an idea on her judicial and/or political views?
8.17.2006 9:48pm
Just an Observer:
Bruce Hayden,

I am not sure that the 1st Amendment claim depends on the Fourth Amendment claim. It could just as easily rely on FISA and Title III.

Those statutes do not necessarily follow only the Fourth, but rather protect a privacy interest related to the security and integrity of communications in interstate and foreign commerce.

If I am a plaintiff, I can argue that I and my legitimate associates should be able to rely on the standards defined by the law. So long as they and I are not agents of a foreign power, which status would require us to do one or more enumerated bad things "knowingly," we ought to be able to rely on the law and the FISA courts to protect us from surveillance. But when the government breaks the law by failing to enforce the statutory standards, our reliance on such communications is compromised and chilled.
8.17.2006 10:17pm
Kevin L. Connors (mail) (www):
Question, Prof. Volokh: Just how is agent of a foreign power defined? (That, of course, would be necessarily prefaced by how one defines foreign power.) Could it be possible that there are individuals a reasonable person might agree that the NSA should take an interest in, who don't rise (descend?) to that level?
8.17.2006 10:55pm
sdk:
Thanks for the reply Chris.

The argument that we have no privacy interest in international calls is a potentially strong one, but it is debatable at the least.

I'm not sure why considering the zero privacy available to physical objects (including people) crossing the border. If packages and letters are subject to warrantless gov't stop and search, why would electronic communication be under different rules? If the two parties were close enough that screaming across the border would suffice, would the gov't be required to have a warrant to listen? Email communication, in particular, could be considered roughly equivalent with current technology (you can't guarantee the network path the packets travel or whose servers the email might be routed through).
8.17.2006 11:30pm
Just an Observer:
Kevin L. Connors,

If I may attempt to answer your question, the definitions you seek are codified in 50 USC 1801.

I suggest that the definition applying to a "United States person" is fairly rigorous. See 1801(b)(2) It requires one or more specific acts to be committed "knowingly."

Contrast the standard of probable cause that the target is such an agent with the more vague and broad public definition of the administration's NSA program cited in Judge Taylor's opinion: "... the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

So yes, IMHO, a reasonable person certainly could think they might fall under the administration's loosey-goosey definition, but be confident they do not fall under FISA's more rigorous terms.
8.17.2006 11:56pm
Kevin L. Connors (mail) (www):
Thanks Observer. It would seem appropriate for congress to enact definitions more liberalized than FISA.

Eugene, among the many papers which agree with you this morning, is the WaPo:

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.
8.18.2006 8:20am
Bruce Hayden (mail) (www):
Observer,

Except that it is likely that being a U.S. Person is really irrelevant to FISA here. Look at the difference between 1801(f)(1) and (f)(2). Since under (f)(2) being here legally is irrelevant, I would suggest under this reasoning, al Qaeda who have managed to sneak into this country, and then call home, would have an equivalent expectation of privacy as the plaintiffs here.
8.18.2006 11:53am
Bruce Hayden (mail) (www):
I think that part of what I find questionable about the decision is the assumption that anyone should have a 1st Amdt. right to speak openly with identified enemies of this country during a time of war.

Remember, in order to slide around the State Secrets privilege, the judge limited herself to communications with people the government has identified as surveiling - i.e. al Qaeda and fellow terrorist travelers.

But is it realistic to grant 1st Amdt. free and unfettered communications with such identified enemies? I think that to be a fairly agressive interpretation of the 1st Amdt., and will suggest that there have been plenty of times in the past where Free Speech has been fetered in the name of national security, esp. during time of war.
8.18.2006 11:59am
Bruce Hayden (mail) (www):
Let me continue my slippery slope under 50 USC 1801(f)(2), and assume that two al Qaeda have somehow slipped across the border into this country (given our illegal immigration problem, most likely quite feasible). If FISA sets a floor here, then they should be able to have unfettered communications with al Qaeda management back in those caves along the Pakistan/ Afghanistan border. Most likely, the two al Qaeda operatives here illegally can't talk directly, because that would likely take it out of FISA. But the obvious solution would be to coordinate through al Qaeda management hiding in caves in the Middle East.
8.18.2006 12:05pm
Bruce Hayden (mail) (www):
Lest anyone suggest that FISA warrants are the solution to my FISA slippery slope suggestion, just remember that this is an era of terrorists utilizing disposible cell phones. Under 1801(f)(2), targetting is also irrelevant - a FISA warrant would be required for the terrorists who have sneaked into this country - but what good is that, when they only use any give phone one time to call home? By the time that a FISA warrant could be procured for any given phone number, the corresponding phone would be deep in some lake, and the terrorists involved off using the next one.
8.18.2006 12:09pm
Bruce Hayden (mail) (www):
If I am a plaintiff, I can argue that I and my legitimate associates should be able to rely on the standards defined by the law. So long as they and I are not agents of a foreign power, which status would require us to do one or more enumerated bad things "knowingly," we ought to be able to rely on the law and the FISA courts to protect us from surveillance. But when the government breaks the law by failing to enforce the statutory standards, our reliance on such communications is compromised and chilled.
But remember here, the plaintiffs are stuck with illegitimate associates because that was how the judge slid around the State Secret privilege.
8.18.2006 12:13pm
Bruce Hayden (mail) (www):
Observer,

One last question - how do you see Title III interacting with FISA here? I would think that FISA would be the applicable statute since this case doesn't involve domestic communications at all, nor law enforcement. Rather, it is strictly limited to international communications with known or suspected terrorists. But, as you can most likely tell, I really don't understand the interaction between these two statutes that well.
8.18.2006 12:19pm
Gorjus (mail) (www):
My comment about the judge formerly being a U.S. Attorney is supposed to highlight what, to me, underscores the decision. It is illogical to say that "all prosecutors are for expanded ability to prosecute suspected criminals," and certainly to say "all former prosecutors are for expanded ability to prosecute suspected criminals."

However, I certainly think that mentality is hard to shake, and for a former U.S. Attorney to (quite viscerally) strike out at government intrusion into private affairs seems to me telling; in other words, that the intrusion must be extraordinary. This is using "supplemental information" as Huggy so put it, which is obviously nonbinding and just "feeling."

Which also includes the phrase I used, "well-respected," which, as a Mississippian and a great believer in equal civil rights, I may too graciously to those who came down in Freedom Summer to fight for changes in my state. Any person who shouldered that burden earns my respect.

I offer to Mr. Somerville—who believes in the “garden variety Carter appointee,” a creature I must say I have never met—and to Sub Specie AEternitatis, who does appear to deal intimately with the judge, the case of Arrow Office Supply Co. v. City of Detroit, 826 F. Supp. 1072, 1073 (E.D. Mich. 1993), holding that a city ordinance requiring a certain number of contracts go to minority vendors unconstitutional. Also, try Jesse Jackson v. Democratic Party, 588 F. Supp. 1033 (E.D. Mich. 1984), where the court turned back the challenge of this perennial politician.

A handful of cases does not an ideology refute, but this seems to be contra both charges of political subservience and blind racial loyalty.

In all fairness, I offer in support of Sub Specie AEternitatis’ charges of poor reasoning remarks from the Almanac of the Federal Judiciary. My copy is years old, but even then there were only a few comments praising the judge’s legal ability, and then only tepid. A “good level of ability,” was one; a “good, solid judge,” was another. Much more common were serious concerns about her scholarship, and those who were disappointed because they expected a more scholarly approach from the bench.

This dovetails with Sub’s comment above.
8.18.2006 12:57pm
Just an Observer:
Bruce Hayden,

The plaintiffs are U.S. persons, so the definition of whether they are "agents of a foreign power" is quite relevant. They are not Al Qaeda operatives who have entered the country illegally and are phoning home, but rather are legitimate citizens conducting legitimate business via international phone calls.

I fail to see how your assumption about 1801(f)(2) means anything in this context, since you do not know for sure how the intercepts are made. And however the intercepts might hypothetically be made, the plaintiffs are going by the public description of the "Terrorist Surveillance Program," which explicitly includes targeting at least one party to every conversation.

Your statement here:

But remember here, the plaintiffs are stuck with illegitimate associates because that was how the judge slid around the State Secret privilege.

does not hold up because there is no evidence that the associates are illegitimate. You continue to beg the question by assuming absurdly that these associates are hard-core terrorists -- an assumption contradicted by the plaintiff's filing. The plain language of the government's description of the surveillance criteria is so vague that it reasonably might sweep innocent parties into its dragnet, which I understand to be part of the plaintiff's theory.

As for Title III, the statutory construction is that all of FISA is a carved-out exception to Title III. Between the two titles, they cover the field of regulating all surveillance. Both make all surveillance unlawful outside of prescribed procedures. So if the surveillance does not meet the definition of the FISA carve-out, it might also violate the umbrella provisions of Title III.

(BTW, to avoid confusion you probably shouldn't call me "Observer," as I note that someone else uses that handle. I am "Just an Observer." Some of my friends call me "JaO," which I will answer to.)
8.18.2006 1:00pm
Kevin L. Connors (mail) (www):
Bruce Hayden:

By the time that a FISA warrant could be procured for any given phone number, the corresponding phone would be deep in some lake, and the terrorists involved off using the next one.

Or perhaps, traded for a khat fix. :)
8.18.2006 1:41pm
markm (mail):
Bruce: FISA doesn't require getting a warrant before tapping the phone number, they can tap it and apply for the warrant later. This does require a high level authorization, perhaps impracticably high - but if that's the problem, Bush should have asked Congress to make the authorization process easier, not violated the law.
8.18.2006 6:28pm
markm (mail):
"If the government can stop and search vehicles, packages, and people when they cross the border without warrants, why does the government have to get warrants to "search" telephone conversations or email communications that "cross the border"?"

Because Congress has mandated different regulations for "searching" electronic communications as compared to physical objects. This certainly seems to be within congressional powers under the Constitution, which include making regulations for the military and other executive departments. There are at least three grounds for a rational basis for the difference:
1. Communications don't pose the same immediate threat as physical objects can.
2. Physical objects entering the country are taxed, and certain physical objects going in or our may be regulated or forbidden under laws and international agreements (drugs, for instance). Random searches are sometimes necessary to enforce those laws.
3. It's pretty difficult to unknowingly cross the border physically and subject yourself to a search, but due to foreign call centers most American citizens do unknowingly make calls to overseas locations. One hopes that if your credit card company has contracted with a call center in India to handle account inquiries, the government has better sense than to spend their time listening to it (except where terrorist money transfers are suspected) - but by ignoring FISA, the government has trashed the legal safeguards against them eavesdropping on this without good reason.
8.18.2006 6:37pm
ainrcjq@hotmail.com:
ringtones free
8.19.2006 7:17am
Sub Specie AEternitatis (mail):
Gorjus, thank you for your fair comments which only now I had the opportunity to read.

Please allow me to clarify one point though. My issue, in contrast to that of some other commenters, was with the judge's basic competence, not her ideology or the outcome of the particular case.

As for the outcome, I'm sufficiently torn both jurisprudentially and politically--and sufficiently ill-informed and reflected--that I'd hesitate to condemn anybody else for coming down on any side of the issue.

As for the ideology, while I'll admit that hers is not mine, I hold many of her colleagues who are at least as distant ideologically from me in very high intellectual regard.

Nor is my quarrel with her civil rights record in Mississippi. For all I know, her record is as admirable as the late Rosa Parks'. However, that would not have rendered Ms. Parks a qualified federal judge and neither does it Judge Taylor.

I stand by my opinion that the judge may be the most legally incompetent judge in the federal judiciary. At one time, when I had the opportunity to read substantial numbers of district court opinions, I had the practice of, whenever I read a passage which was extremely badly drafted or reasoned, to flip back to the front page to see if it was her handiwork. More often than not, it was. And, again, this is not an ideological point. These cases, like most federal court case, were usually without any ideological valence.

PS: In case you were not being facetious about my intimate connection with the judge--my sole interaction with her was reading her opinions. I have never met her and, until yesterday, had never even seen a picture of her.
8.19.2006 12:50pm
Bruce Hayden (mail) (www):
markm said:
Bruce: FISA doesn't require getting a warrant before tapping the phone number, they can tap it and apply for the warrant later. This does require a high level authorization, perhaps impracticably high - but if that's the problem, Bush should have asked Congress to make the authorization process easier, not violated the law.
The problem with that suggestion is that you are talking about the "Emergency Orders" provision, and the AG has repeatedly stated that it is impractical in operation, not only because of the high level of authorization required, but because of the amount of paperwork required w/i the 72 hour time limit. The burden by the Govt. is not less here, just telescoped into that short time period.

You may chose to believe him or not, but he is the one signing those Emergency Orders, and he, probably more than anyone else in the country, would know. However, if you have statements by others to the contrary who have significant actual working knowledge of Emergency Orders, I would be open to them.
8.19.2006 2:24pm
Bruce Hayden (mail) (www):
JaO said:
The plaintiffs are U.S. persons, so the definition of whether they are "agents of a foreign power" is quite relevant. They are not Al Qaeda operatives who have entered the country illegally and are phoning home, but rather are legitimate citizens conducting legitimate business via international phone calls.

I fail to see how your assumption about 1801(f)(2) means anything in this context, since you do not know for sure how the intercepts are made. And however the intercepts might hypothetically be made, the plaintiffs are going by the public description of the "Terrorist Surveillance Program," which explicitly includes targeting at least one party to every conversation.
Of course, the decision is so vague here, that we have no idea of where any surveilance occurred, or, indeed, whether anyone was illegally surveiled to start with. Absolutely no relevant finding of facts there - indeed, the finding of facts in the decision was the opposite, that these bad associates weren't talking to the plaintiffs on the phone because of the fear of the TSP.

Nevertheless, there are several reasons that I dwell on 1801(f)(2) versus 1801(f)(1). First, 1801(f)(2) is much narrower than 1801(f)(1). Importantly, if the surveilance fell under 1801(f)(1), targetting a known or suspected foreign terrorist would be sufficient to make the surveilance legal under FISA (or, more accurately, not "electronic surveilance") - but not under 1801(f)(2). The difference here is that under 1801(f)(1), in order to be electronic surveilance, the U.S. person has to be targetted. Not so, under (f)(2).

Secondly, the published reports seem to indicate that surveilance on international (and foreign) calls is being done within the U.S. - which would move it to 1801(f)(2) instead of 1801(f)(1), where the intercept is outside the country. I have suggested on multiple occasions here and elsewhere that U.S. based interception was forced on the NSA by technology.

Your statement here:

But remember here, the plaintiffs are stuck with illegitimate associates because that was how the judge slid around the State Secret privilege.
does not hold up because there is no evidence that the associates are illegitimate. You continue to beg the question by assuming absurdly that these associates are hard-core terrorists -- an assumption contradicted by the plaintiff's filing. The plain language of the government's description of the surveillance criteria is so vague that it reasonably might sweep innocent parties into its dragnet, which I understand to be part of the plaintiff's theory.
But I don't see that as a basis of the opinion, regardless of the plaintiffs' theories. Rather, the judge stated:
For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations. In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations…
In order to get standing, they need people on the other side of the international conversations that have a reasonable expectation of being surveiled to have the required chilling. And those are precisely people known to be or suspected to be terrorists or associated with terrorist organizations.
As for Title III, the statutory construction is that all of FISA is a carved-out exception to Title III. Between the two titles, they cover the field of regulating all surveillance. Both make all surveillance unlawful outside of prescribed procedures. So if the surveillance does not meet the definition of the FISA carve-out, it might also violate the umbrella provisions of Title III.
Thanks. I need to reread Title III. My take had been that it excluded international and foreign calls, of which, FISA covers some, but not all.
(BTW, to avoid confusion you probably shouldn't call me "Observer," as I note that someone else uses that handle. I am "Just an Observer." Some of my friends call me "JaO," which I will answer to.)
Happy to oblige - see above. But most likely I will forget, so if I do in the future, sorry, keep reminding me.
8.19.2006 2:55pm
Bruce Hayden (mail) (www):
Let me add to my later post about why I even brought up the al Qaeda operatives calling home. Yes, I will readily admit that that is irrelevant to findings in the present case. But not to its effects.

Starting out with FISA, if the intercept is within the U.S., FISA determines that to be "electronic surveilance" under 1801(f)(2) as long as one party is w/i the country, regardless of their legality here. It doesn't matter if they are the targetted party or not.

But now jumping to the 1st and 4th Amdt. infringements. The judge imported FISA to provide a level of expectation of privacy, etc. But that would seem to mean that the al Qaeda operative here illegally in this country would thus have a similar expectation of privacy, based on FISA, since both his conversations and those of the plaintiffs, would constitute electronic communications under FISA, and presumably require a warrant for surveilance.

In other words, maybe my suggestion about al Qaeda sneaking in here and calling home could be taken as a slippery slope interpretation of what the decision could mean, should the imporation of FISA as an expectation of privacy be upheld.
8.19.2006 3:15pm
Bruce Hayden (mail) (www):
I want to add a bit more to what JaO said above:
The plaintiffs are U.S. persons, so the definition of whether they are "agents of a foreign power" is quite relevant. They are not Al Qaeda operatives who have entered the country illegally and are phoning home, but rather are legitimate citizens conducting legitimate business via international phone calls.
I have been assumming all along that the plaintiffs were "U.S. Persons" in the U.S. and not "agents of a foreign power" nor that they were targetted. Rather, the theory of the opinion is that the people on the other side of those conversations, who are not U.S. Persons and are not in the U.S., do believe themselves to be suspected of being targeted as agents of a foreign power, and as a result of this belief, aren't talking to the plaintiffs electronically because of a fear of being surveiled by the NSA TSP. And it is this indirect chilling that is the basis of both the 1st Amdt. infringement and the finding of Standing.

Let me simplify what seems to be going on in the opinion:
1. The plaintiffs have a need to communicate with people outside this country who are known to be or suspected of being tied to terrorist organizations.
2. The known or suspected members of the terrorist organizations or their associates have a reasonable belief that they might be surveiled by the NSA TSP, so they don't communicate electronically with the plaintiffs as they apparently did before disclosure of the program, and thus, their speech with the plaintiffs is chilled.
3. The chilling of the speech by the known or suspected terrorists, etc. with the plaintiffs results in a chilling of speech for the plaintiffs with the terrorists, etc.

As I have suggested before, what the judge doesn't consider here, and what I think would ultimately sink this theory, is that the plaintiffs most likely don't have a resonable expectation that they should be able to unfettered speech with known or suspected enemies of this country during a time of war.
8.19.2006 3:38pm