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The NSA Domestic Surveillance Program Opinion:
I was off-line and without an office phone all day due to an office move, and I just logged on to see the news about Judge Taylor's opinion in the NSA domestic surveillance case. I haven't read it yet, but I hope to have something up shortly.
John Jenkins (mail):
Someone tell me how they cleared the standing hurdle on this one.
8.17.2006 7:31pm
Bruce Hayden (mail) (www):
I am sure that I will be corrected, but the theory seems to be that terrorists overseas and the like no longer feel free to talk to the plaintiffs electronically, and, thus, their communications have dried up as a result. I hope that there is more to it, but that is all that I was able to get from my first reading of the opinion.
8.17.2006 7:46pm
Bruce Hayden (mail) (www):
I should also note that this is part of the basis for the 1st Amdt. claim she upheld for the plaintiffs - that the knowledge of the NSA international electronic surveilance program dried up communications between those suspected of being (or known to be) terrorists and the plaintiffs, and that this was chilling of Free Speech.

But then the opinion goes on and essentially finds a resonable expectation of privacy sufficient for a 4th Amdt. claim, despite having just found that the lack of an expectation of privacy was the basis for both standing and the 1st Amdt. claim.

And, she manages to sidestep the Constitutionality of FISA, Separation of Powers, etc., based on a determination that the program violated both the 1st and 4th Amdt.

It was clever, but as I suggested at Alhouse, I think too clever by half. Such a sweeping 1st Amdt. right is unlikely to survive simply because I see it being used to immunize those illegally disclosing classified information. She essentially bootstrapped standing on the 1st Amdt. claim, and that is where I suspect she will be reversed, obviating the need for the higher courts to address any of the other issues.
8.17.2006 7:55pm
Bruce Hayden (mail) (www):
Let me also add that the judge almost totally skirts addressing the 4th Amdt. claim. She talks about the ancient history of the Amdt., mentions a case where a beeper was found in someone's house, and then shifts into a discussion about FISA, never really bridging between the police physically coming into someone's house, and the NSA tapping an international call, possibly a thousand miles away. Not that it can't be done, because it can, and has been here. She just never bothered to explain why an amendment that by its wording applies to the government physically entering a house would apply here. She does give lip service to "exigent circumstances" in the 4th Amdt. FISA discussion, but seemed to maybe (I wasn't following her logic here) that Congress addressed exigent circumstances with FISA, and that is that.
8.17.2006 8:16pm
John Jenkins (mail):
I was generally being rhetorical. I think the plaintiffs lacked standing in this case.
8.17.2006 8:16pm
Milhouse (www):
Orin, please. "Domestic surveillance case"? Whatever its merits or legality, let's at least call it what it is, an international surveillance case. By definition, a domestic call has both ends in the USA.
8.17.2006 11:00pm
OrinKerr:
Milhouse,

In my experience, the standard approach in surveillance law is to refer to the location of the surveillance, not the ends of the call. I am following the usual terminology. Of course, if you think I am using the standard terminology incorrectly, I would be delighted to be set straight on this.
8.18.2006 1:59am
Milhouse (www):
But we don't know where the surveillance physically took place, do we?

Not only don't we know where the surveillance physically took place, but I don't believe anyone making a fuss about this cares where it took place. When people distinguish between domestic and international surveillance, they are talking about surveillance of domestic or international communication.

Now since I am not a lawyer, but I am someone with a good command of English, I'm using the ordinary definition of the words domestic and international. In the English language (though perhaps not in the jargon of surveillance law), "domestic" means "entirely within one country". Domestic trade is a transaction where both buyer and seller are in the same country. A domestic flight takes off and lands in the same country. A domestic phone call starts and ends in the same country. If one end of the transaction, flight, or phone call is across a border, then it is by definition international.

It seems to me that in this debate, and only in this debate, some people are using "domestic" to mean "international", and "international" to mean "domestic to some other country". It's only with that definition that the NSA program can be called "domestic surveillance". To which I say that if you call a tail a leg, a dog still only has at most four legs.
8.18.2006 3:25am
OrinKerr:
Milhouse,

Yes, actually I believe we do know where the surveillance is taking place; according to news reports and litigation, at least, the surveillance is taking place at telecommunications switches inside the United States. Indeed, that is the main reason why the surveillance is legally controversial, I believe.

The distinction you're missing is that we normally speak of international vs. domestic surveillance and international vs. domestic calls, and they are two different things. So the TSP program that we know of is domestic surveillance that is targeting international calls. I think it's still more precise to call it "domestic surveillance," as that is the type of surveillance at issue. Further, keep in mind that the program may work by copying all calls, domestic and international, and then screening them later for certain international calls. If that is accurate, I think it's actually quite misleading to call it "international surveillance."

In any event, I have thought a alot about these questions, and have decided for the reasons mentioned that my terminology is the most precise. I am sorry if you think I am being sloppy and you are being precise, but I just disagree.
8.18.2006 11:47am