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Should We Care About The Reasoning In Judge Taylor's Opinion? :
Glenn Greenwald has a post responding to the Washington Post's editorial on Judge Taylor's NSA opinion, and in particular criticizing the Post (and many others, including Eugene) for criticizing its reasoning. He writes:
  What really matters, says the Post in its unbelievably petty editorial, is not the profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law and has been exercising that power aggressively and enthusiastically in numerous ways over five years. No, that is merely a fascinating intellectual puzzle, something for super-smart experts to resolve with great civility and high-minded, complex discussions as they ponder what the Post calls the "complicated, difficult issues" raised by the administration's lawlessness.
  To the Post, what really matters here is how impressed law professors are with the complexity and nuance in Judge Taylor's written decision. Condescendingly scoffing at the judicial quality of her opinion is of infinitely greater importance than objecting to the growing extremism and lawlessness to which our country has been subjected. * * *
  In the scheme of the profound issues our country faces, obsessing about the inartfulness of this judicial opinion is not unlike those who use a laughably grave tone to write articles about fights between Daily Kos diarists or the latest blogger "scandal" while ignoring our national media's grotesque failure to scrutinize meaningfully our government's conduct and claims — particularly on matters of war and peace or threats to constitutional liberties.
  There is nothing commendable or impressive about always being restrained and muddled and ambivalent in one's tone and views. It is not a sign of intellectual prowess to be open-minded to frivolous claims or corrupt and dangerous behavior. And when the claims are particularly frivolous, and when the corruption and dangers reach a certain level of severity, self-important ambivalence — hospitality to extremist ideas and systematic government law-breaking — is actually irresponsible, reckless, and morally and intellectually bankrupt.
  Two responses. First, the issues raised by the NSA domestic surveillance program are not easy. Granted, I think that the Administration's published legal defense of the program is weak. But that doesn't mean that the program is illegal; the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don't know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don't know enough of the facts to know if the program violates the Fourth Amendment. I can recite the arguments, but without the facts I can't tell.) And the legality of the NSA domestic surveillance program was a part of Judge Taylor's opinion, but only a part, as most of the opinion was on procedural issues such as the state secrets privilege and standing. Greenwald is right that "it is not a sign of intellectual prowess to be open-minded to frivolous claims." But it's also not particularly helpful to be close-minded to difficult ones.

  Second, isn't the gist of Greenwald's argument somewhat similar to the arguments that the President's most zealous supporters have been making all along? In their case, of course, they have made such claims in response to criticisms of the Administration's legal defense of the NSA program, rather than in response to criticisms of Judge Taylor's opinion striking it down. But you've seen the argument many times, including in many VC comment threads: Rather than dwell on the "fascinating intellectual puzzle" of whether the NSA program is legal, we should focus on the really important question of defending the country against terrorists. In other words, stop quibbling over little legal issues and get back to the big picture. To be fair, this is often a very legitimate argument; legal niceties aren't everything. But it's not obvious to me why we would reject this advice when analyzing the DOJ's defense of the program but not when analyzing Judge Taylor's opinion striking it down.

  UPDATE: After drafting this post, I note that Greenwald has an update further explaining his point, in which he suggests (I think) that his point is that even if the criticisms of Judge Taylor's opinion are fair on the merits, it is somehow inappropriate. In his example, Greenwald suggests that criticizing Taylor's opinion is like seeing an assault and complaining about the unpleasantness of a victim's cry rather than the assault itself. While I appreciate his willingness to attempt to clarify the point, I'm not entirely sure how that clarifies the post. And I don't find the analogy persuasive.
Kevin L. Connors (mail) (www):
[Deleted by OK]
8.18.2006 4:00pm
Houston Lawyer:
I'm going to have to side with Mr. Connors above on this one. Greenwald's argument has all the coherent thought processes of a lynch mob. He knows that the Administration is guilty and you won't prove otherwise to him.
8.18.2006 4:04pm
sksmith (mail):
Greenwald's view isn't incorrect; its preposterous. He is saying that a judge, in declaring certain behavior illegal, shouldn't be constrained to make a legal argument?

If he were saying that not all arguments (say, political, or rhetorical, or technical, or logical) need to be constrained by legal trivia, he would be on reasonably firm ground. But to say that LEGAL arguments shouldn't be constrained by legal trivia-why are you even taking it seriously by referring to it? Its just crazy talk.

Steve
8.18.2006 4:12pm
John (mail):
I really don't think I've seen such overdone, hyperbolic criticism as with this TSP program. It may be that the lawyers advising the president have given bad advice as to its legality; maybe not. It's not really a very settled area of law.

But to suggest that the Pres is setting himself up as some sort of imperial force, cutting a swath of lawlessness through society ("...profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law"), is just silly and diminishes whatever the advocate has to say that might be sensible.

The TSP does not raise a "profound constitutional crisis," although it does raise important constitutional questions. The truth is, the grocery store is still here, I can drive where I want, I can go to the movies, I can spend time with my family, and life is normal. I couldn't give a rat's ass whether some computer is listening in on my calls, or whether, if I were to start talking to some one from Al Qaida about blowing something up, the computer bounces the call to a human.

Whether the TSP is helping us or not, I don't know. I suspect it does more good than harm, probably a lot more, and if the question of its constitutionality is a close one I'd vote for upholding the thing. But, to quote Dennis Miller, that's just my opinion. I could be wrong.
8.18.2006 4:22pm
elChato (mail):
To the general public, the result is the most important thing, at least on a superficial level.

To lawyers and judges, and those who care about the implications of a given case for the future, the reasons are probably more important than the results. A poorly thought-out and sloppily written legal opinion is a very bad thing. A legal opinion that appears explicitly partisan is even worse.

The "victim" analogy is inapt; the judge is not a victim, she is an authority figure who owed us a thorough and well-reasoned decision.
8.18.2006 4:31pm
Glenn Greenwald:
Once a post, followed by a commenter, describes someone's argument as something other than what it is, it's usually an impossible tide to stop, but in the hope that the impossible can be achieved, here is what I am arguing and not arguing (I have no interest in battling against the opposition to my views here, just trying to do what I can to make sure they are not further mischaracterized):

(1) Although I agree with all of the conclusions the court reached, the opinion is horrible in how it analyzes those issues and defends its conclusions in several important respects. This is what I wrote on Salon yesterday -


Still, commentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak and thus vulnerable on appeal with respect to several critical issues. The court, for instance, barely explains why warrantless eavesdropping violates the Fourth Amendment, and its discussion of why such eavesdropping violates the First Amendment borders on the incoherent.


(2) Judge Taylor should have done a much better job analyzing and discussing those legal issues, especially the 1st and 4th amendment conclusions she reached.

(3) While the standing and the 1st amendment issues are far from clear (and some say, although I disagree based on Keith, that the 4th amendment issue is unclear), what is crystal clear is that the President is violating FISA with no viable excuse, and the only fact that is needed to know that -- that the President is eavesdropping on Americans without the warrants required by FISA -- is already publicly confirmed.

Especially in light of Hamdam, he has no excuse for violating the law. His claim that his Article II powers cannot be regulated or restricted by anyone - including when it comes to measures he can take against U.S. citizens on U.S. soil - is frivolous, radical and dangerous.

(4) With those premises assembled, issue (3) is infinitely more important and pressing than issues (1) and (2), and thus, anyone who focuses or speaks stridently about (1) and (2), while speaking only in the most muted, conflicted, ambivalent, and apologetic tones about issue (3) - as the Post editorial Board has done, and as many law professors characterically continue to do - is exhibiting some extremely poor judgment, and is prioritizing inconsequential and petty matters over ones of towering significance for our country.

(5) What matters is whether the administration's conduct is illegal, and whether its radical theories of executive power have any role in our constitutional system. It is not remotely analogous to the law-ignoring, result-based arguments of Bush supporters who want to disregard the law if the results are sufficiently good, since the only issue that matters (in my view) is whether the President is acting within the law. The quality of Judge Taylor's written opinion on that issue is something which law professors can endlessly scorn, but in the scheme of things, it is beyond inconsequential.
8.18.2006 4:35pm
eddie (mail):
The real point is that this is about the limits of government. If the defendant in this case were an individual, then I would agree that there better be air tight reasoning and solid precendent backing up the decision. But here it is a case of what appears to be a prima facie and admitted violation both of law and at least the spirit of the fourth amendment. It amazes me that any conservatives, originalists, textualists, etc. would argue that a good result is a grant of additional powers to any branch of the government not expressly set forth in the Constitution.

When defendants get off on procedural bases, "law and order" freaks cry bloody murder regarding liberal judges freeing criminals to do more harm. But in this case, everyone is clamoring for the defendant to get off on similar grounds and subject themselves to a level of governmental scrutiny that baffles the mind.

John: You seem to believe that because you are not affected now that this enlargement of executive power should be allowed because it must be helping our fight against al Qaeda. And yet there is no basis for your conclusion regarding efficacy. And when they haul you away when you have happened to make a phone call that fits the profile, it will be too late.

And please let's dispense with the false idea that if you aren't talking to a suspected terrorist you don't have anything to worry about: the whole point is that there does not need to be a showing that you are talking to a terrorist.
8.18.2006 4:35pm
joe (mail) (www):
Greenwald is a buffoon who has just about used up his 15 minutes. Safely ignored.
8.18.2006 4:36pm
joe (mail) (www):
> It amazes me that any conservatives, originalists, textualists, etc. would argue that a good result is a grant of additional powers to any branch of the government not expressly set forth in the Constitution.

Ah yes, leftists becoming textualists/originalists all of a sudden. Funny how that happens.
8.18.2006 4:37pm
elChato (mail):
And by the way, I do not agree that this badly done opinion necessarily hurts the plaintiffs on appeal. What it does do, is create more work for the appellate court. In an ordinary case that can affect the outcome to the extent an appellate court is too busy to spend enough time to fully reconstruct what the trial judge should have done right the first time. In this case the court of appeal will have the benefit of excellent lawyers, and on its own end will allocate enough time to do a careful and thorough job. However the result comes out, it will surely be leaps and bounds better than the district court's contribution. I am sure that most professors who post here would not accept a student paper written at level of her opinion.
8.18.2006 4:38pm
Donald Kahn (mail):
The issue raised as to the First Amendment is wonderfully
creative.
8.18.2006 4:43pm
Anonymous777:

to suggest that the Pres is setting himself up as some sort of imperial force, cutting a swath of lawlessness through society ("...profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law"), is just silly and diminishes whatever the advocate has to say that might be sensible.


Will somebody please englighten us as to what is silly about about the idea that we face a profound constitutional crisis? We do indeed face a profound constitutional crisis, and the DoJ's legal argument indeed does come down to to be exercised indefinitely into the future. This is a situation very similar to Julius Caesar's proclamation of "imperium" -- arbitrary wartime powers in Rome itself -- that ended the Roman republic. Nixon, which merely involved a privilege about tapes, pales in comparison. Nixon also presided during wartime but he hardly claimed a tiny fraction of the power than the DoJ is claiming for Bush. If this isn't a constitutional crisis, then there is no such thing as a constitutional crisis.

Not only are the DoJ's arguments frivolous (in the legal sense), but the people who defend their arguments as both plausible and not highly dangerous are grossly ignorant of both law and history, regardless of their credentials. There is far more to this branch of constitutional law than just federal court cases. To be knowledgeable about the law in this area, one must be aware of a far wide swath of constitutional history.

Those who have studied this broad scope of legal history know that DoJ's position is radically anti-democratic, anti-American, and anti-freedom.
8.18.2006 4:45pm
OrinKerr:
Glenn,

But are complications with (3), though, aren't there? For example, DOJ hasn't conceded that the TSP is engaging in "electronic surveillance." DOJ has said that it is assuming this for the purpose of public debate, but will not go into the issue for national security reasons that are classified. I can think of a lot of technical reasons why the TSP might not constitute "electronic surveillance." Why do you think it is clear as a matter of law that it is in fact "electronic surveillance"?

Second, even if you're right about (3), surely you would criticize a judge who had no jurisdiction over the case for striking the program down, right? That is, your views on (3) shouldn't trump every other legal issue, should it?
8.18.2006 4:49pm
Adam White:
Mr. Greenwald,

Are you honestly saying that, so long as the judge ruled against the President, that the quality of her analysis was irrelevant? Could she have relied on tarot cards or coin tosses, and still pass The Greenwald Test?
8.18.2006 4:50pm
SteveL (mail):
The limits of government apply to the judiciary as well, no matter what it thinks or says to the contrary. Taylor's opinion is itself an abuse of the Constitution. Like the Massachusetts gay marriage decision and Roe v. Wade, the only legal basis for it is "because we(I) said so". What makes Taylor's opinion even worse is that the other two came from final appelate courts, Taylor was supposed to be the finder of facts, and she herself rendered a decision based on facts not in evidence and her own imagination.

Bryan Cunningham at National Review does a great job dissecting what must stand as among the worst decisions in recent memory. Thankfully it won't last long.

I welcome a real and thorough review of the program and its legality or illegality. I remain convinced that the wiretapping of foreign individuals (even when conversing with US citizens) for intelligence gathering purposes is part of the President's Article II powers. If the program has gone beyond that, then all bets are off.
8.18.2006 4:51pm
joe (mail) (www):
> Are you honestly saying that, so long as the judge ruled against the President, that the quality of her analysis was irrelevant? Could she have relied on tarot cards or coin tosses, and still pass The Greenwald Test?

That is exactly what he is saying in his comment above.
8.18.2006 4:54pm
Just an Observer:
I rather think that the main point of Glenn's blog post was not so much to defend the quality of Judge Taylor's opinion as to take umbrage at the Washington Post editorial. I have somewhat nuanced differences with both.
8.18.2006 4:55pm
elChato (mail):
" . . . the people who defend their arguments as both plausible and not highly dangerous are grossly ignorant of both law and history, regardless of their credentials."

so they know nothing, no matter how much they know?

Maybe you're on safer ground trying to convince us they're wrong, instead of assuring us what is and is not inside their minds.
8.18.2006 4:57pm
Kelvin McCabe (mail):
Okay - I'll state up front that I agree with Greenwald on this one. As i said before, the judge's opinion leaves much to desire - but gets the main issue correct: FISA is the exclusive means to do this monitoring and FISA was not complied with. Ergo, absent some other justification, which the court did not find - the TSP is illegal/unconstittional on various grounds.

Question for the appellate lawyers: This decision was a ruling on the gov.t's motion to dismiss and plaintiff's motion for an injunction and partial summary judgment. She denied the motion to dismiss - granted plaintiff's partial summary judgment as to the TSP - but not the data mining and granted the injunction (which is stayed) against the gov.t What are the proper standards of review on appeal?

I assume as to the purely legal questions, the review will be De Novo. But, what about the procedural issues involved in deciding motions to dismiss, etc... where the well plead facts are assumed to be true for purposes of ruling on the motion. Will this deferential standard prevail on appeal? (This would bolster plaintiffs standing argument on appeal since they alledge specific concrete harm due to the program). Just curious as to what people thought.
8.18.2006 4:57pm
EstablishmentClaus (mail) (www):
I think there are three relevant questions, basically.

(1) Is the issue as simple as Glenn makes it out to be?
I'll refer this one to more learned legal scholars. I've studied it in some detail and I don't think so, but I'm neither a constitutional expert nor a national security law expert.

(2) If the issue isn't as simple as Glenn makes it out to be, is criticism of the opinion rather than the program appropriate?

Pretty clearly, I think, the answer here would be yes.

(3) (and this is the hard one) If the answer IS simple, is criticism of the opinion nonetheless appropriate?

Here, I think, Glenn's own argument does him in. What's important, to him, is the risk of unrestrained governmental power. However, it's only the opinion - requiring justification of the holding in terms of precedent, statute, and Constitutional text and history (in ascending order of importance) - that restrains the judiciary. Most accusations of "judicial activism" are silly because rigorous (or at least good-faith) opinions can be reached on either side of a case; we know that because no one screams about activism when Scalia and Breyer come down on different sides of excrutiatingly dry patent-law issues, and because there isn't agreement on the meaning of precedent within the courts, the academy, or the polity at large. Where we can get suspicious about an unrestrained judiciary, though, is where they feel no obligation to justify an opinion based on sources of authority other than themselves, like a rigid analysis of the development of the Fourth Amendment.

Consequently, if what we're to be worried about is untrammelled governmental authority, I suspect we might just as well worry about judicial disregard for the actual state of the law. Just because I don't think it's terribly common doesn't mean I want to see it become terribly common.
8.18.2006 5:03pm
joe (mail) (www):
> it's only the opinion - requiring justification of the holding in terms of precedent, statute, and Constitutional text and history (in ascending order of importance) - that restrains the judiciary.

The doctrine of standing, which this opinion thoroughly abuses, also restrains the judiciary. These plaintiffs have no stake in the outcome beyond the political -- so this judge has arrogated to herself the power to determine policy, despite the absence of concrete, individualized harm to these plaintiffs.
8.18.2006 5:08pm
Glenn Greenwald:
Orin - Alberto Gonzales has admitted as clearly as anything can be admitted that the eavesdropping activities in which they are engaged are within the scope of FISA. Here is what he said at his December 19, 2005 Press Briefing:


Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.


They have never disputed -- and certainly have not disputed in this case -- that the eavesdropping in which they are engaged is the eavesdropping covered by FISA's warrant requirements. They could easily say: "For reasons we can't disclose, the eavesdropping we are doing is not within the scope of FISA." Not only have they never denied it, here is Gonazles admitting exactly that.

And that's the only rational assumption. If FISA doesn't require warrants for the eavesdropping they're doing, there wouldn't be any dispute; there would be no argument that requiring compliance with FISA would endanger national security; there would be no need for an Executive Order authorizing eavesdropping outside of the FISA framework. I have never understood - and perhaps you could explain - how anyone can continue to question whether their eavesdropping is within the scope of FISA when (a) they admit it is; (b) they have never denied it (even generally) and (c) every circumstance points to that fact.

As for the other issue you raised - no, I do not think a court should cheat on jurisdictional or standing issues in order to rule on these issues simply because they are so important, and I don't think this court did. If the court reached a ruling I disagreed with, I wouldn't defend that result just becuase it was anti-Bush or because it nullified warrantless eavesdropping. My point is that she reached the right result, but just did a terrible job in explaining it (and analyzing it).

In the scheme of things, who cares about that? Does anyone know or care what the quality of the District Court's opinion was in Youngstown, or Hamdam, or Brown?
8.18.2006 5:14pm
Chris Bell (mail):
While I normally agree with Glenn, this post did surprize and disturb me this morning. Glenn says that


what is crystal clear is that the President is violating FISA with no viable excuse, and the only fact that is needed to know that -- that the President is eavesdropping on Americans without the warrants required by FISA -- is already publicly confirmed.


I think Orin was saying that this is less than "crystal clear," which creates a problem with Glenn's premises. And if this is so "crystal clear" then how come a federal judge couldn't explain it adequately? She barely touched the FISA issue at all, and instead blew right to the much more diffcult constitutional issue. (Which I think she mangled.)
8.18.2006 5:24pm
dmbeaster (mail):
Of course the reasoning matters, but there is a lot of criticism based more the form of the decision than the argument and conclusions. And Glenn (who has already made his point clear above) is not claiming that the reasoning is irrelevant, so the post somewhat posits a false premise (yeah, I know the title, "should we care about the reasoning," is more of an argumentative summary than the actual substance of the post).

District Court judges who are writing opinions with dramatic political conseqences typically undertake the burden to write an opinion more on the level of an appellate court opinion. This judge did not, but does that fact alone automatically void the somewhat summary analysis and conclusions? No, and that was one of Glenn's points in rebuttal to the WaPo editorial.

Also, what is the impact if the NSA program involves conduct both within and outside the purview of the fourth amendment, and both within and outside the expectations of privacy that trigger the fourth amendment? Does that prevent a judicial ruling striking down a program that intermixes legal and illegal conduct? No. It's the government's burden to undertake entirely legal programs, and cannot defend illegal conduct by mixing it with legal conduct, and then obscuring the facts to prevent a more detailed scrutiny.

Detractors of the decision writing above primarily seem to think that any government search is OK if the results seem beneficial. The ends justifiying the means analysis can be argued, but the founders of our country rejected that logic over 200 years ago. To be intellectually honest, they should recognize that they want to rewrite the Constitution and create a fundamentallly different form of government than we have had since 1789. To reverse a phrase asserted above, funny how conservatives reject following the Constitution in favor of expediency when it suits their political goals.
8.18.2006 5:26pm
Adam White:
"In the scheme of things, who cares about that? Does anyone know or care what the quality of the District Court's opinion was in Youngstown, or Hamdam, or Brown?"

What an odd statement. No one cares about those opinions because they are, as a historical matter, irrelevant. Mr. Greenwald, are you actually saying that we should treat yesterday's opinion as historically irrelevant? If so, then what's all the fuss about?
8.18.2006 5:28pm
SteveL (mail):
Mr. Greenwald,

Please explain the phrase "radical theories of executve power"?

See: In re: Sealed Case No. 02-001 "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.26 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable." (emphasis added)

So when looking at radical theories, we're staring from the basepoint that the TSP program, as generally publicly articulated (electronic surveillance of foreign persons to gather foreign intelligence information) is not radical in the least. On the margins we can examine whether law enforcement actions can be based on a FISA warrant and other issues. The administration freely admits that law enforcement actions against U.S. citizens cannot be based on information gathered without a FISA warrant. I continue to struggle to find the outrage here, the "radical" point of view. If a U.S. citizen engages in phone calls with foreign persons he/she should have no expectation of privacy, as the laws of the foreign land do not protect your fourth amendment rights and the foreign power may be listening. Calling/e-mailing overseas is no different than travelling overseas.
8.18.2006 5:29pm
Brian Garst (www):
Greenwald merely serves to confirm what we already know about the far left. That is, they are exactly backwards in their views of both law and government. When it comes to government they look at process and ignore results, advocating failed programs simply because they are "designed" to help people, even when they don't or, as is often the case, accomplish the exact opposite.

But when it comes to law, it's all results and no process, which is equally wrongheaded. They demand SCOTUS picks pass their narrow litmus tests and don't care at all about the legal issues that might raise. Likewise, to Greenwald, this decision is right, no matter the specific merits or arguments, simply because it conforms to his idealogy.
8.18.2006 5:31pm
James Lindgren (mail):
Orin:

Great post!

Results-oriented jurisprudence (without tying the results to relevant legal arguments) is a mistake. Sometimes, when rights are stated clearly enough and are accepted, results should not enter into the legal analysis at all (see Easterbrook arguing v. balancing tests).

In other cases, results DO matter in legal analysis. For example, if the legal test turns on reasonableness, then results may be considered. Or if a remedy is being offered for a wrong, then the results of that remedy may matter (but only within the bounds of the law and judicial discretion). Or in assessing which legal category something fits in, results may be one of the criteria for classifying the facts.

Yet even in any of these proper uses of results, the opinion should carefully discuss in what way the results are LEGALLY relevant. In other words, even here the quality of the argumentation matters.

One shouldn't simply say that the arguments are unimportant (or shouldn't be picked at) because the President must be stopped.

Further--going beyond the District Court opinion being discussed--I don't think that the Supreme Court was right to essentially ignore Congress's attempt to limit its power to adjudicate military treatment of detainees. I have not looked into the issue and was planning on forming my opinion after the Court gave its analysis.

But the Supreme Court dodged the issue. It should have dealt carefully and explicitly with the merits of that (attempted) restriction. The Supreme Court must follow the law and the Constitution, just like the President. If the President is not inherently exempt from Congressional restrictions, it would be good for the Court to explain why the Supreme Court is.
8.18.2006 5:36pm
Gorjus (mail) (www):
Brian, you seem to think that only the "far left" enjoys it when there's a "good" result that got reached in an awkward way . . . I think that's just all lawyers! I remember a judge announcing a ruling from the bench in a case once, and I was thinking, this is so totally, completely wrong. The side I preferred once won the motion, but the way the result was reached . . . ick.

So I suppose it was bittersweet. It was a "good" thing, but I was deeply worried that the result, reached as it was by convoluted means, might undermine the actual validity of the result (which I thought was legally correct, but not for the reasons announced by the judge).
8.18.2006 5:38pm
Brian Garst (www):

Brian, you seem to think that only the "far left" enjoys it when there's a "good" result that got reached in an awkward way . . . I think that's just all lawyers!

It was not my intention to suggest such. But they are merely the group doing that, and are thus the most relevent, with regards to this particular case.
8.18.2006 5:52pm
A.S.:
They have never disputed -- and certainly have not disputed in this case -- that the eavesdropping in which they are engaged is the eavesdropping covered by FISA's warrant requirements. They could easily say: "For reasons we can't disclose, the eavesdropping we are doing is not within the scope of FISA." Not only have they never denied it, here is Gonazles admitting exactly that.

And that's the only rational assumption.


DOJ has written that it is assuming, for purposes of their public defenses, that the surveillance constitutes "electronic surveillance" under FISA, because to say otherwise would reveal details about the operation of the program.

So it seems to me that to say that the "only rational assumption" is that FISA was violated is quite wrong. Another quite rational assumption is that FISA was not violated, but a public defense of that position would reveal details of the program and therefore harm the program. Indeed, that's not only a rational "assumption", but it is exactly what the government is saying, both in its defenses of the program and in the invocation of the state secrets privilege.

One would hope that a former Wachtell litigator could at least understand the most basic points being made here.
8.18.2006 5:54pm
Mark Buehner (mail):

what is crystal clear is that the President is violating FISA with no viable excuse


Am I taking crazy pills, or is the Administration's contention that we are at war, and that intercepting enemy communications falls easily within the purview of the CIC not a 'viable excuse'? If Roosevelt was intercepting German Uboat signals communicating with persons on US soil, would that touch on inherent Article II powers you think? The merits of FISA compared to the joint war resolution can be argued this way and that, but to claim the Adminstration has no pretext whatsoever just points to a very identifiable mindset. The administration has an argument, just because Greenwald idealogically rejects it without comment doesnt make it go away.
8.18.2006 5:55pm
kelvin mccabe (mail):
No, i think greenwald thinks the decision is right, because it is in fact correct. The president's executive branch - through AG Gonzalez - has publicly declared they are not following FISA (which requires warrants when domestic calls are involved). FISA creates strong penalties for anyone who wiretaps in violation of its mandate and FISA - a valid act of congress - says it is the EXCLUSIVE means to do this type of eavesdropping activity.

So, do those penalties apply to the president? Is the president above the law? Can the president pick and choose which laws he will comply with and which he won't? (Signing statements aside) I dont remember AG gonzalez, bush or his white house press toady Snow claiming FISA is unconstitional since it deprives the president of his inherent powers. Did anyone see that argument raised by the Gov.t in their motion to dismiss in this opinion? What is the significance of that? It seems to me that the gov.t is acceding FISA is constitutional, they just dont have to follow it, despite it being an act of a co-equal branch of gov.t and the exclusive statutory authority for what it is their doing. Why is this complicated? If I violated FISA, rest assured the penalties mentioned above would apply to me. But then again, Im not the "decider" (snark).

At the very least, Bush's, Gonzalez's and Snow's recent comments suggesting that there are "very strong" legal arguments in support of their position, in light of Hamdan, have to be taken with a grain of salt.
8.18.2006 6:00pm
Just an Observer:
A.S. DOJ has written that it is assuming, for purposes of their public defenses, that the surveillance constitutes "electronic surveillance" under FISA, because to say otherwise would reveal details about the operation of the program.

So it seems to me that to say that the "only rational assumption" is that FISA was violated is quite wrong.


DOJ wrote that caveat in its "white paper" 1/19/06, and the caveat expressly applied "for purposes of this paper." But Gonzales said unambiguously in his briefing 12/19/05 that the NSA program was within the scope of FISA. See the quote in Glenn's comment above.
8.18.2006 6:13pm
OrinKerr:
Glenn,

I'm no expert in civil litigation, but I find your response rather puzzling. As A.S. properly notes, DOJ has assumed for the purposes of public debate that the program constitutes public surveillance; see fn 5 of the DOJ White Paper. But DOJ has never conceded this, and certainly not in the context of litigation. The AG's statement in the press conference doesn't concede the point, either. What am I missing? Is your view a sort of estoppel principle? I don't understand.
8.18.2006 6:16pm
Frew (mail):
Regarding point 3, it seems to me that if we are at war there is considerable doubt about the applicability of FISA where foreign surviellance is concerned. In my humble opinion nothing written by the Judge or written in these commentaries adequately puts that issue to rest.

Does the Commander-in-Chief have the authority to conduct surviellance of the enemy during a war or not? Surviellance of the enemy is an essential aspect of the conduct of a war, and even if the President is a Republican his powers as Commander-in-Chief ought to cover that. Can Congress restrict that authority granted, as it is, by the Constitution? I think not, and neither did the FISA Court the last time they said anything about it.

What fascinates me about this case is how this Judge got it. It must be an interesting story, especially considering that she attempted to steal an affirmative action case from one of her collegues a few years back so that a judge with the right attitude toward affirmative action would preside over it. I don't know that I've seen anyone comment on that aspect of this fiasco^h^h^h^h^h^hruling.

Aren't the judges supposed to get these cases assigned by random draw?
8.18.2006 6:27pm
Glenn Greenwald:
Orin -


As A.S. properly notes, DOJ has assumed for the purposes of public debate that the program constitutes public surveillance; see fn 5 of the DOJ White Paper. But DOJ has never conceded this,


How can you say that the DOJ has never conceded this when I quoted the Press Briefing where Gonzales conceded exactly that? His statement was NOT conditional and he was not speaking arguendo. It was a political press conference with reporters in the aftermath of the NYT disclosure, and he said - as clearly as can be - that the eavesdropping the President just talked about the weekend before (when he confirmed the NSA program) was the type for which FISA requires warrants (assuming the AUMF did not authorize it). Why aren't you addressing that statement? I quoted it for you. If you ignore it, do you think it won't exist?

And if you want to cofine the discussion to the purley legalistic realm, the DoJ did not deny in front of Judge Taylor that the eavesdropping they are engaged in was within the scope of FISA. Again, they could do so easily: "For reasons we cannot disclose, the eavesdropping which we are conducting does not fall within the scope of FISA." But the plaintiffs alleged it, presented facts which proved it (the administration's own admissions), and the administration did not deny it. That is called an "undisputed fact."

Courts are only required on Summary Judgment to consider facts which the parties put into dispute by denying. The DoJ did not deny that their eavesdropping activiites fell within the scope of FISA, and it therefore would have been improper for the court to assume (or even question whether) it did. That the administration is eavesdropping without warrants in violation of FISA was an undisputed fact on the record before the Court. What is your basis for believing otherwise?
8.18.2006 6:29pm
Mikkel (mail):
Glenn, when I originally read your blog post I thought you were making a very clear implicit division between what political emphasis should be on and what judicial emphasis should be on. Politically the most important thing is that the Administration committed illegal activities (a view almost unanimously shared -- or at least not denied -- by legal opinions I've read) and that the attack by supporters on the textual reasoning is smoke and mirrors. Your point is that it is obvious they are breaking FISA (which is very explicit about getting warrants), and that the real crux of the issue is that the Bush Administration doesn't care at all. That is where the "constitutional crisis" comes into play and what the general public at large should be focused on. Most of the commenters on this board (even your comments seem to) are referring to this in the judicial arena. Well of course judicial opinions should be intellectual and supported by process more than the end result. That's not what is at issue -- the issue is that Bush supporters are using the deficencies in the judgement to prove their political point. Unfortunately, since the opinion is as poor as it is, this makes it easy to do so. You can (rightly) criticize that way more attention is being given to the opinion rather than the fact that the Unitary Executive feels it has almost unlimited power, but the Post editorial seems to focus mainly on the judicial aspect and I have to agree they have a point.

That said, the bravado of the Administration begs for overreach in a judicial opinion. Seriously folks, the FISA law states in the plainest English possible "you cannot tap without a warrant" and that's what they did. I wasn't even aware laws that explicit existed. And the idea that the AUMF somehow overrides this borders on the (common logic wise) absurd (although I'm glad Prof Volokh posted the AUMF because I hadn't read it. It is downright dangerous in how vague it is regarding the Presidential powers and who it applies to. How the hell did that get passed?) Ironically, the more "obvious" something is, the more you have to pile on to prove your point. The opinion could have literally consisted of two sentences: the line from the FISA law and the admittal that they were tapping without warrants. Of course you can't actually do this, so the judge tried to pile on every single thing she could think of and it looks like she overstepped her bounds on the constitutionality of a (theoretical) law that would circumvent FISA.

Behind all the legalese, the Bush administration has consistently said that they reserve the right to do whatever the President thinks is necessary, the courts are starting to challenge that, and the public will be vitally important in the upcoming balance of power clashes. This is what needs to be understood and focused on, but any weakness to the message needs to be rectified.
8.18.2006 6:33pm
OrinKerr:
Glenn,

Do you have a copy of the response to the complaint in which DOJ conceded the issue? That would be very helpful.
8.18.2006 6:38pm
OrinKerr:
Oh, and in terms of the press conference, can you point me to cases in which such statements are considered legally binding?
8.18.2006 6:42pm
A.S.:
How can you say that the DOJ has never conceded this when I quoted the Press Briefing where Gonzales conceded exactly that?

It seems preposterous to me to think that Gonzalez conceded that the program constitutes "electroinc surveillance" under FISA when he didn't say a single word about the definition of "electionic survaillence". But let's assume, for purposes of this conversation, that one can imply in Gonzales's press briefing a concession regarding whether the program consitutes "electronic surveillance" under FISA. So what? Does that mean that the Judge should simply ignore the later, more specific, reservation of that point in the DOJ White Paper? It seems to me that, even if you believe that Gonzalez implied something, that one would need to accept that DOJ's later statement amends the former, unless Greenwald believes (as Orin says) that an implicit oral statement by Gonzalez in a press briefing estops DOJ from making a specific reservation of the point in a formal legal document.
8.18.2006 6:57pm
CharleyCarp (mail):
I haven't read all the comments to all the threads, so I'm sorry if I'm repeating something someone else has said. I looked at the government's reply brief, and instead of Fourth Amendment merits argument you would expect to see, there is, at page 24, the word 'Redacted.' It's where the Fourth Amendment argument would be, if it was made at all.

At least two things follow, it seems to me. First, if the government made a merits argument based on classified evidence, and Judge Taylor found it unpersuasive, you would not expect her to provide much analysis in a publicly available document. Second, if the government did not make a merits argument, but rested solely on what it said prior to the redaction -- whether or not a warrantless search violates the Fourth Amendment depends on the facts, and we're not going to tell you the facts -- you also wouldn't expect a very detailed analysis of the government's merits position.
8.18.2006 7:00pm
OrinKerr:
Ome more homework assignment for you, Glenn, if I may -- does FISA permit district court judges to issue injunctive relief? Section 1809 is a criminal provision, and Section 1810 permits damages actions, but I couldn't find the statutory authority for injunctive relief (to the extent it is needed, that is.)
8.18.2006 7:03pm
A.S.:
It would be interesting to see how DOJ responded to the complaint.

Greenwald says: DoJ did not deny in front of Judge Taylor that the eavesdropping they are engaged in was within the scope of FISA. ... But the plaintiffs alleged it, presented facts which proved it (the administration's own admissions), and the administration did not deny it. That is called an "undisputed fact."

My sense of it, without reading the response to the complaint, is that the Administration said something along the lines of "we can't respond to this complaint because to do so we would need to give up state secrets." That's quite different than failing to dispute all of the alleged facts. The facts are not "undisputed", except using the most pedantic sense of the word "undisputed". The "facts" may very well be disputed, but the DoJ hasn't even attempted to dispute them yet because it has not wanted to give up state secrets.
8.18.2006 7:03pm
dmbeaster (mail):
J. Lindgren:

I don't think that the Supreme Court was right to essentially ignore Congress's attempt to limit its power to adjudicate military treatment of detainees.

I assume this refers to Hamdan. The court did address the issue, and concluded that the Congress had not attempted to limit jurisdiction to that pending case. It made no ruling as to its legitimacy as to future cases. Its also clear from the Legislative history that this was the intent, and that arguments to the contrary were based on phony legislative history (inserted into the record after Congress voted).
8.18.2006 7:10pm
CharleyCarp (mail):
It's a fine thing that bunches of people can think up interesting arguments about why the spying program doesn't violate either FISA or the Fourth Amendment. The only arguments that should matter to Judge Taylor are those made to her in the case.

With electronic filing, its perfectly appropriate to ask that people saying that the Judge missed this or that point should cite to the appropriate place in the record where the issue was raised.
8.18.2006 7:12pm
CharleyCarp (mail):
A.S., the non-moving party has a burden when faced with a summary judgment motion. (Or a moving party, as in this case, where the issue arises from the non-moving party's reply). Any party can decide not to try to meet that burden -- suppose its evidence is privileged, and it would rather lose the case than reveal the evidence -- and face the consequences. Here, if the government gambled everything on its state secrets argument, then if it loses on the state secrets argument, it loses altogether.
8.18.2006 7:18pm
CharleyCarp (mail):
What I'd be interested in hearing Prof. Kerr's opinion on is the following: If the government did not make any merits Fourth Amendment argument, but relied solely on its state secrets argument in the face of the Fourth Amendment argument made by the plaintiffs, can the government make a merits argument on the Fourth Amendment in the Sixth Circuit?

The government said in the district court that you have to do a fact based analysis to see if the program complies with the Fourth Amendment. It will be limited to the facts introduced in the district court, right?
8.18.2006 7:22pm
Dan Hamilton:
Why isn't the DOJ fighting this by saying that the TSP doesn't come under FISA?

Fairly simple the DOJ's main purpose is to argue that the Presidents Article II powers to gather foreign intelligence in fighting a war trumps whatever FISA type law for DOMESTIC intelligence is written by Congress.

If they Fight based on FISA doesn't apply specificly to what the NSA is doing, they say that FISA controls the President in gathering FOREIGN intelligence in time of war. Congress just didn't write the law to cover what the NSA is doing. To admit that would be to put the President's war powers UNDER THE CONTROL of Congress. No President would allow that or has ever allowed it.

The DOJ CAN'T argue based on FISA therefore they don't try to. They assume that FISA covers TSP but it doesn't matter because the Presidents war powers in gathering foreign intelligence in time of war makes FISA beside the point.
8.18.2006 7:25pm
dmbeaster (mail):
To echo and expand on Charley Carp's point, it is very unfair to fault a District Court judge for not providing a scholarly analysis of every legal wrinkle if the arguments were not made to her in the first instance by the government. A lot of the criticism is based on the idea that her opinion should have rejected every argument that bloggers can think of, and is deficient because it does not. Maybe the opinion is simplistic because the government's defense of its program was simplistic, and therefore easily rejected.

In fact, it seems that the government relied very heavily on its state secrets defense, and once it lost that argument, got wiped out on the remaining substantive points which it had indifferently argued. That would explain why the opinion is so heavily weighted on this point rather than the substantive points.

Before knocking the judge for her opinion, someone better look at the government's legal work to see if it raised the points that Kerr and others argue should have been addressed in the opinion.
8.18.2006 7:26pm
Glenn Greenwald:
Orin - Unfortunately, I am leaving for the evening, but will answer your inquiries (that I don't address below) either here or on my blog some time this weekend.

But as JustAnObserver can document, one important thing to note here is that the DoJ was contemptuous of the very idea that this judge had the right to rule on the substance of the claims at all, and thus barely bothered to address any of the substance. They did NOT dispute the allegation (supported by evidence) that the eavesdropping in which they were engaged falls within the scope of FISA, which means -- by all definitions -- that it was an undisputed fact for purposes of Summary Judgment.

Finally, you keep asking whether Gonzales' statement at the Press Briefing is legally binding. Whether it is or isn't is not my point. You keep asserting (and I've seen you do so before) that as a factual matter - regardless of what the legal implications might be - we don't know if the surveillance they are engaged in falls within FISA. But Gonzales said that it did. Do you have any reason to doubt him?
8.18.2006 7:27pm
OrinKerr:
Glenn,

I think one of our differences is that my interest is in answering what Judge Taylor should have done based on the law, not in analyzing the likelihood that the TSP program is illegal or unconstitutional. We have each debated the latter question ad infinitum, but the former is the issue here and is very different from the latter. Put another way, it seems plausible to me that a) the TSP program is illegal and b) the law required Judge Taylor to dismiss the complaint. (I'm not saying it's correct, on either front, just that it's plausible.) Given the focus on this particular case, general views about the likelihood that the TSP program is illegal don't seem particularly relevant. Anyway, have a good night out; I look forward to continuing the exchange later on.
8.18.2006 7:43pm
Kevin L. Connors (mail) (www):
[Deleted by OK]

[OK NOTE: Kevin, I'm really busy, and I don't appreciate you making me take the time to log in to the VC, find your comment, and delete it. It may be entertaining to you to get in your potshots, but it's not entertaining to me. If you post one more abusive comment, I'll ban your IP address.]
8.18.2006 7:47pm
A.S.:
Do you have any reason to doubt him?

Since the later-in-time, more-specific White Paper set forth a specific caveat to the implication of Gonzales's prior, more general oral statement - yeah.
8.18.2006 7:53pm
dmbeaster (mail):
Orin:

In responding to Greenwald, you should note this extremely relevant remark which I assume is correct (don't know myself):

But as JustAnObserver can document, one important thing to note here is that the DoJ was contemptuous of the very idea that this judge had the right to rule on the substance of the claims at all, and thus barely bothered to address any of the substance.

It is entirely proper that the opinion is perfunctory on the substantive points if the government's arguments as made were threadbare and easily rejected. It makes no sense to bemoan the lack of scholarly content in the opinion if the government's briefing did not require a scholarly refutation.
8.18.2006 7:56pm
OrinKerr:
Dmbeaster,

I don't follow. DOJ was taking a legal position based on the state secrets privilege; regardless of the ultimate merits, which are hard to assess without the access to the classified info, there is nothing improper about asserting the privilege in a case like this. What am I missing?
8.18.2006 8:05pm
Richard Aubrey (mail):
We may be able to solve this for good.

It is reported that the plaintiffs complained that communications between named individuals in the US and individuals who are members of certified terrorist organizations are being "chilled".

Is a statement to a court, presumably under oath, that an individual is communicating with a terrorist sufficient to get a warrant for eavesdropping?

Seems so to this non-lawyer. But I'm sure the ACLU and others will think of a reason this isn't good enough.

Anyway, if there is a warrant, then there is no complaint about "warrantless" eavesdropping. The communicators with terrorists will have to fall back to an assertion that talking with terrorists is not sufficient trigger to get a warrant to listen to somebody talking to terrorists.

This would no doubt fly in the thin air of liberal legal theory--which is damn the law, how do we screw Bush.
8.18.2006 8:09pm
Jim Rhoads (mail):
Judge Diggs Taylor's decision does not really explain the procedural posture of the case. She does not indicate how material facts become "undisputed" for purposes of granting a motion for summary judgment for injunctive relief and she also completely ignores FRCP 52 respecting separate findings of fact.

All in all, not a good trial judge's opinion imho.
8.18.2006 8:09pm
Cyn23 (mail):
My non-academic reading of Orin Kerr's argument is that he is bending over backward to defend a position he admits is "weak." And, it isn't the first time.

But, I admit that just might be (snark!) my "far left" bias.
8.18.2006 8:18pm
A.S.:
CharleyCarp writes: the non-moving party has a burden when faced with a summary judgment motion. (Or a moving party, as in this case, where the issue arises from the non-moving party's reply). Any party can decide not to try to meet that burden -- suppose its evidence is privileged, and it would rather lose the case than reveal the evidence -- and face the consequences. Here, if the government gambled everything on its state secrets argument, then if it loses on the state secrets argument, it loses altogether.

No, that's incorrect. The moving party only wins if the non-moving party doesn't meet its burden AND the moving party meets ITS burden. Based on the undisputed facts, the moving party would need to show that it is entitled to the judgement as a matter of law. As far as I can tell, there are no facts set forth in the complaint upon which one may conclude that the program involves "electronic surveillance" under FISA. And nowhere in her opinion does the Judge find that there are facts allowing her to conclude that the program involves "electronic surveillance" under FISA. Accordingly, I fail to see how she can conclude that the plaintiffs are entitled to judgement as a matter of law, at least on the FISA claim.
8.18.2006 8:28pm
ajftoo:
I am just amazed that Orin Kerr is debating with a sock puppet-ing charlatan.
8.18.2006 8:34pm
A.S.:
and she also completely ignores FRCP 52 respecting separate findings of fact

I'm not a litigator, but I believe seperate findings of fact are unnecessary on a motion for summary judgement. (See Rule 52: "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule ... 56...")
8.18.2006 8:34pm
Just an Observer:
Glenn,

I'm really not in a position to document very much about what happened in Detroit -- and I suspect that few of us are because we don't have the full record of the arguments.

I don't even have a copy of all the DOJ filings, although most of the plaintiff's filings are available at ACLU.org. There also is a copy of DOJ's motion to dismiss, which was coupled with a motion for the judge to stay consideration of the summary judgment. And I think I read all the news stories about the hearings, which mostly were unsatisfying summaries with paraphrased arguments.

(The related point I have been making is that from what I have seen, DOJ did not forthrightly present the theories that the NSA program is lawful, as expressed by the DOJ's public statements and similar arguments by surrogate defenders. Rather, these legal merits all were subsumed under the state-secrets claim, and that's all the government wanted to talk about. But my point is really a different issue than the factual questions folks are contending about here, I think.)

From the government's motion that is online, we can see that DOJ at least did not expressly deny there the public statements by Gonzales and other officials, but did argue somewhat mysteriously that the lawfulness of the program could be established by the state secrets the government objected to revealing to the judge.

However, the matter did not end there. Judge Taylor denied the motion to stay consideration and ultimately accepted the state-secrets claim after reviewing the secret materials DOJ presented in camera. But after such fact-finding, the judge found that there was a prima facia case against the government without reliance on the secret materials, based purely on the public-record materials submitted.

Taylor's opinion did not expressly say there was nothing in the in camera filings to undermine a prima facie finding, but the reader is left to presume she was aware of whatever facts she found. The opinion merely says that a prima facie case exists without the secrets.

As I understand Orin's line of thought above, he is suggesting that the judge may have erred in relying on those public statements in reaching summary judgment. That is a different legal issue, and one that I can't answer authoritatively in terms of civil procedure. I do note that there were some comments about the subject in a post at OrinKerr.com in March.

It does seem that we might expect the government's appeal to argue that Judge Taylor erred on such grounds, which to me at the moment seem arguable but not certain.

In any event, the possibility of such error is a different issue than what most of the criticism of Taylor's opinion focuses on: Some folks think she was wrong on the Fourth Amendment issue and argued it poorly; others think she was right on the underlying FISA/AUMF legal issues but argued them poorly.
8.18.2006 8:35pm
A.S.:
What am I missing?

I think their point is that, if you rely solely on a state secrets privilege argument and fail to dispute the facts, then on a motion for summary judgement, if the privilege fails, the judge is entitled to rely just on the facts that the plaintiffs have alleged.

As I noted above, even if the judge may just rely on all the facts the plaintiff alleges, they still need to show that the plaintiffs are entitled to judgement as a matter of law.
8.18.2006 8:41pm
Brad (mail):
From what I understand, the Domestic Surveillance program is basically a word recognition type system. It monitors international calls, and keys in on certain words, or phrases. Once it finds something significant, it kicks things up to a human. My questions are pretty simple I think. How would we know who to get a FISA warrant on, without this program? Planning attacks is probably a pretty fluid thing, with numbers, means of communication, and the timing of attacks changing all the time. I seriously doubt that FISA is the be all, and end all to solve these myriad of problems. So my next question would be to the folks on the left, what are we supposed to do? Finally, it was my understanding that there were a few idealogues on the FISA court, who were a OPSEC nightmare. Did not a couple of the leaks to the newspapers come from someone on the FISA courts? I'm a police officer, not a lawyer, but I do know that I've never seen a court system that did not leak like a sieve.
8.18.2006 8:47pm
Brad (mail):
Just a quick addendum. I'm not sure who said this, but the Constitution is not a suicide pact. I think we need to remember that.
8.18.2006 8:52pm
elChato (mail):
Speaking of Judge Taylor, I can't find a link to this but in 1998 when she was chief judge, she was busted trying to route the Michigan affirmative-action case away from Judge Friedman to Judge Duggan, who was perceived as being more sympathetic to the defendants.

Perhaps we'll need a Bernstein thread on Judge Taylor before this is all over with . . .
8.18.2006 8:58pm
Just an Observer:
Do you have any reason to doubt him?

A.S. Since the later-in-time, more-specific White Paper set forth a specific caveat to the implication of Gonzales's prior, more general oral statement - yeah

This particular point should be put to bed. The fact that the "white paper" came later can be argued either way -- one could point out that in spite of this fact, the footnote deliberately failed to encompass Gonzales' well-reported statement and recant it.

But in any case, the plain language of the footnote limited the caveat to the white paper itself:

To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute “electronic surveillance,” as defined by FISA, 50 U.S.C. § 1801(f).


So the while the white paper obviously cannot be construed to corroborate Gonzales' prior statement, the caveat in the footnote expressly applied it to nothing outside the four corners of the white paper itself.
8.18.2006 9:12pm
Anderson (mail) (www):
Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress.

If the Attorney General of the United States says that, then I think it deserves a lot more weight than Prof. Kerr and others seem inclined to give it. Gonzales is of course free to submit a sworn affidavit retracting the statement. I wonder why he didn't?

As for the feds' alleged arrogance in avoiding the merits, that might be unfair. Remember, lawyer-friends, there is another very good reason for avoiding the merits, and it's pretty much the opposite of arrogance ....
8.18.2006 10:13pm
Medis:
As an aside, without better access to the record, we can't definitively assess whether the DOJ did in fact deny that the "TSP" involved electronic surveillance within the meaning of FISA AND whether they supported that denial as required by Rule 56 ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.").

But personally, I have not seen any government filings or any official DOJ or Administration remark regarding this case, before or after the decision, which indicated the government ever in fact denied in these proceedings that the "TSP" involved electronic surveillance. So, until we have some sort of indication that they did dispute this allegation, I see no reason to assume that they must have.

Anyway, I think Greenwald clearly has a point. I think many news commentators in this case have been far too insistent on seeing this issue through a political lens, and have been all too willing to treat the legal arguments involved as nothing more than "he-said-she-said" political spin. Indeed, I frequently see an all-too-typical anti-intellectualism in the news coverage of this issue (basically implying that the legal arguments are just far too complicated and technical for ordinary folks to bother their pretty heads about--so let's look at some polls!). And I think the "How good is the opinion?" commentary in the media (both favorable and unfavorable) is largely more of the same--it is treating these unfolding events as a back-and-forth match deserving of the same sort of commentary a sports color analyst might give, rather than as a profoundly important constitutional moment deserving serious reflection and analysis.

Which, of course, has always been the goal of the Administration--their strategy is clearly to persuade people this is all just politics as usual, and thus that no serious attention need be applied to their actions. And so I understand Greenwald's complaint.

Indeed, maybe it is worth pausing for a moment to reflect on something: a federal judge just ruled that the President of the United States has ordered clear violations of the United States Constitution and a valid federal law, both of which in the judge's opinion were specifically designed to prevent such actions.

Even if you disagree with the conclusion, that is an extremely momentous event. And in that sense, the holding itself is far more important than the opinion, although of course that doesn't mean the opinion can't be criticized. But surely Greenwald is right about how these things should be prioritized.
8.18.2006 10:23pm
Mark Buehner (mail):
Anyone care to comment on Professor Eastman's letter to the Judicial Committee? To get back to the original point- whether or not the Administration (and other Consitutional scholars despite claims of consensus against) is correct on the merits, it seems to me quite inane to suggest they havent even bothered to try.
8.18.2006 10:34pm
Anderson (mail) (www):
it seems to me quite inane to suggest they havent even bothered to try

Depends on what they put in their briefs, doesn't it?
8.18.2006 10:45pm
A.S.:
This particular point should be put to bed. The fact that the "white paper" came later can be argued either way -- one could point out that in spite of this fact, the footnote deliberately failed to encompass Gonzales' well-reported statement and recant it.

Sheezus. I can't believe people are actually arguing this point.

When you have a brief and an oral argument, and you don't state during the oral argument all of the caveats, footnotes, and citations set forth in the brief, does you think a judge really says, "hey, he didn't mention that footnote in the oral argument, so I guess we can ignore it"?

And, hell, this wasn't even an oral argument. It was a press f'ing briefing. So what Greenwald and the rest are saying is that Gonzales didn't mention the footnote in the press briefing, therefore it doesn't exist. Yikes - I haven't seen an argument that bad in a long time.
8.18.2006 10:51pm
A.S.:
As an aside, without better access to the record, we can't definitively assess whether the DOJ did in fact deny that the "TSP" involved electronic surveillance within the meaning of FISA AND whether they supported that denial as required by Rule 56 ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.").

No, you have the burden of proof completely backwards.

It is up to the plaintiff to allege facts that support a finding that the plaintiff is entitled to judgement as a matter of law. It in only in that case that the burden of shifts to the respondent to allege facts sufficient to show that there is a factual dispute.

Here, the plaintiff did not make a sufficient factual showing to meet its burden of proof. And the judge didn't say how or why she thought that the plaintiffs did. Seems to me to be plain error.
8.18.2006 10:56pm
DBL (mail):
Mr. Greenwald wrote: "Especially in light of Hamdam, he has no excuse for violating the law."

I think this is wrong. In Hamdan, the executive asserted that its war powers extended to the power to judge, convict and sentence. The Court felt, not totally implausibly, that this was an infringement on the judiciary's powers. It's rather hard to see how this reasoning extends to the executive's assertion that it has the power during wartime to spy on enemy communications.
8.18.2006 11:01pm
Robert McDougall:
Seems to me Orin Kerr misreads Glen Greenwald in a pretty basic way. Greenwald doesn't criticize the Post simply for criticizing Judge Taylor's opinion; he hardly can, as he criticizes the opinion himself. He criticizes the Post for false priorities; for expressing outrage at the District Court's opinion, while passing over the Bush administration's "deliberate violation of multiple laws" [paraphrase of Greenwald's first sentence] in near silence.
8.18.2006 11:02pm
Xrlq (mail) (www):
It strikes me as highly unlikely that the taps were "electronic surveillances" within the meaning of FISA, as Glenn assumes. If indeed they were, this sounds more like criminal stupidity than anything else. Why would NSA want to tap an international line on U.S. soil and fall under the sucker subsection (f)(2), when they can just as easily tap the same line outside the U.S., putting themselves inside (or outside, as it were), the more restrictive subsection (f)(1)? And if you're under (f)(1), how could there ever be a reasonable expectation of privacy in a phone call to/from a country whose police are known to monitor calls all the time?

If I had to place a bet here, it would be that NSA didn't violate FISA at all, but won't say so out loud because (1) they don't have to, and (2) they want Congress to relax FISA.
8.18.2006 11:04pm
Mark Field (mail):
Going back to Glenn's original point -- that the reasoning of the judge is less important than the result -- isn't this already the law? Don't appellate courts affirm if there is any legal basis to do so, regardless of the reasoning of the lower court? And since that IS the rule, then why is there such disagreement about Glenn's point?
8.18.2006 11:04pm
Just an Observer:
A.S. So what Greenwald and the rest are saying is that Gonzales didn't mention the footnote in the press briefing, therefore it doesn't exist. Yikes - I haven't seen an argument that bad in a long time.

Let's get the facts straight. The press briefing occurred a month before the white paper and its footnote, and the footnote applied expressly only to the white paper itself -- not to the press briefing, or to anything else.

It is you who keeps ignoring the plain text of the footnote itself, trying to make it say what it plainly does not say.
8.18.2006 11:05pm
Anderson (mail) (www):
then why is there such disagreement about Glenn's point?

Only thing I know is, it can't be due to partisan politics. Because that's Greenwald's peculiar vice.

I'm a little surprised, looking back, that we haven't discussed the Kerr/Greenwald disagreement in terms of the hoary split between the law professsor and the litigator. Given their different backgrounds, it's unsurprising that Kerr is more "look at the bad reasoning" and Greenwald's more "sure, but look at the result!"
8.18.2006 11:15pm
A.S.:
and the footnote applied expressly only to the white paper itself -- not to the press briefing, or to anything else

As I said, that's like saying that a footnote in a brief applies only to the brief and not to the oral argument. It is really embarrassing that you continue to argue that.
8.18.2006 11:22pm
SMSgt Mac (www):
Wow! Lawyer Catfight!
Seriously, I'm only posting to request Mr Kerr to please make sure he links to this thread after Judge Taylor's findings are tossed on the ash heap by a higher court. That is not to say it will happen, but only to say what I believe should happen. Only government incompetence could cost them their case when it finally makes it to a competent court - unfortunately, that seems a real possibility. Check Six!
8.18.2006 11:28pm
Just an Observer:
A.S.,

As you said, it was not an oral argument. It was a press briefing. Gonzales was stating facts in clear sentances describing the program the President had just revealed on the record.

The metaphorical "footnote" you say he "forgot" is supposed to be that Gonzales had his fingers crossed, and that when he said this:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

he actually did not mean what he said, that instead he was describing a huge hypothetical. Hilarious at best; politically damning at worst.

Now, perhaps Gonazales misspoke. More likely he just revealed more truth than he should have. But he has had eight months to correct that record and has not done so as far as we know. Perhaps he did file an affidavit to that effect with Judge Taylor and we just don't know about that.

My own comment above was simply to note that your own attempt here to apply an actual footnote in another document a month apart from this incident, which footnote expressly applied only to the document itself, was preposterous. It still is.

Since that actual footnote did not recant or qualify Gonzales' prior statement, please just direct us all to the actual retraction on the record somewhere. Otherwise, we can only take the attorney general at his word.
8.18.2006 11:48pm
A.S.:
No, JaO, more like, when people speak to the press, they don't mention all the caveats that are included in a footnote in a legal document.

I can just imagine you or Greenwald arguing during an oral argument: "but the other side's brief includes a footnote that the other side didn't mention at oral argument... therefore, you can't consider the brief. You can only consider the oral argument!"

Too funny.
8.19.2006 12:00am
A.S.:
Hey, I noticed that Gonzales didn't mention In re Sealed Case during his press breifing. I guess that means that, to you and Greenwald, the government is precluded from using it during the case, regardless of whether it was mentioned in the White Paper!
8.19.2006 12:03am
Just an Observer:
A.S.,

Just show us the retraction on the record somewhere.

Waiting ...
8.19.2006 12:12am
Monkberrymoon:
In his last post, A.S. has gotten around to the nub of the problem, and Orin alluded to it in a "facts vs. law" post far above: A party to litigation simply cannot concede the law in a press conference and have it held against them in court. Heck, I've won cases on appeal where our side's lawyer actually conceded (wrongly) a legal issue in court.

Any concession as to facts would be fair game, but it's not like Gonzalez said that a bunch of G-men were strangling kittens right before they listened in on private conversations.

The law is what it is, and nothing prevents an attorney from going into court and arguing that a higher-up's assertion about the state of the law was mistaken (or just ignoring it, for that matter).
8.19.2006 12:37am
Medis:
A.S.,

Have you actually looked at the ACLU's filings?

The ACLU submitted a "Statement of Undisputed Facts in Support of Plaintiff's Motion for Partial Summmary Judgment" (dated March 9, 2006). That is what the ACLU relied on when describing the nature of the TSP in its briefs (which you will see if you look at their original Brief in support of their motion and their Reply Brief).

Such a submission is enough to satisfy their initial burden under Rule 56. So, if the government then did not dispute these facts, there would be no material issue with respect to those facts.

Of course, I don't know if the government disputed the relevant facts. But again, I see no indication anywhere in the public record of the government having argued that the program did not involve electronic surveillance within the meaning of FISA.

Also, I note that it would be a bit odd for the ACLU to keep relying on this document in its Reply Brief if the government had in fact disputed the relevant facts before that time. Of course, that is circumstantial evidence, but pretty strong circumstantial evidence.
8.19.2006 12:56am
Medis:
Monkberrymoon,

It is a bit more complicated than that, since Gonzales was making a factual admission as well.

Anyway, do you have any reason to believe the government actually made such an argument (that Gonzales was wrong) in these proceedings?
8.19.2006 12:59am
Just an Observer:
I particularly like the irony of A.S. elevating the "white paper" to the status of a "brief."

Was this 42-page press release filed with Judge Taylor as a "brief?" That would be big news indeed. The document is a public-relations instrument designed to buy time for negotiating a political fix. So far as I know, we are still waiting for Bush's lawyers actually to show up in court and make such "arguments."
8.19.2006 1:02am
Medis:
By the way, I'm trying to understand the "caveat" Gonzales supposedly omitted. It seems to me he was being very straightforward in what he said ("the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday"), and any "caveat" we implied into his statement which would render FISA inapplicable to the surveillance would actually change the meaning of this statement.
8.19.2006 1:07am
Medis:
JaO,

And we are actually supposed to infer from the White Paper that they actually argued in court something they did not in fact argue in the White Paper, nor anywhere else in the public record as far as I can tell.

So, Judge Taylor's "plain error" was in not addressing a factual claim we have no reason to believe the government actually made.

That is an interesting notion of "plain error".
8.19.2006 1:10am
AST (mail):
We should know by now that it's a waste of time worrying about trial judges' reasoning. All we can do is appeal.

What we should care about intensely is the reasoning of dorks like Greenwald and the editors of the NYTimes, who get read far more often than a judge like Digg-Taylor.
8.19.2006 1:49am
CharleyCarp (mail):
AS, I don't understand why you don't think the plaintiffs made a prima facie case for a violation. They don't have to do any more than allege on information and belief that there was a FISA violation -- and the Attorney General's statements are certainly sufficient basis for thinking that the program is within FISA. This is enough to trigger the burden on the part of the government to present a genuine issue of material fact for trial. It apparently didn't, because it believed so completely in its 'we're not accountable to you' argument. Kind of like when someone is sued, thinks the court lacks jurisdiction, and so doesn't respond. You can beat the default judgment if you're right about jurisdiction. If you're wrong, though, none of the fancy arguments your law professor friends can come up with are going to do you any good at all.

A prima facie case for a Fourth Amendment argument is very simple: 'they conducted searches without warrants.' What more do you need? 'And I was injured thereby?' All this 'the Fourth Amendment doesn't apply' stuff is the government's burden.

The Sixth Circuit is going to have to look at this under Celotex/Anderson/Matsushita. They'll also know what was redacted on page 24 of the public version of the government's reply brief -- which is where you'd expect to see the fact based Fourth Amendment argument that Prof. Kerr thinks might be made.

It's always a mistake when lawyers get drunk on their own whiskey. Surely everyone without a dog in the fight knew that the government was going to lose Hamdan. Except the government, apparently, which ended up getting a ruling that the Geneva Conventions apply to Khalid Sheikh Mohammed (and making war criminals, potentially, out of a whole bunch of folks) because it clung to the notion that it needed to try bin Laden's driver without him being in the room. Nothing in the indictment would lead one to believe that the driver was actually important -- and so it just seems like faith in the War Powers argument dimmed awareness of the real stakes.
8.19.2006 2:44am
dmbeaster (mail):
OrinKerr:

Let me repeat at length; and I must admit that I am puzzled why you don't get it. A great deal has been written about the threadbare nature of the opinion, which is something I also reacted to when I first read it.

We are all used to seeing much longer and denser opinions at the trial court level in cases such as this, but realize that this is true only if the briefing by the parties comprehensively and intelligently raised the issues for consideration. One would assume that it occurred in a case of this importance, but that assumption is wrong here. The DoJ papers are weak on many of the important substantive issues, which is the root cause why the opinion seems perfunctory on those points.

Having been a trial lawyer for 24 years and having clerked for judges both at the trial court and federal appeals court level, I have some idea of how opinions get written at the trial court level such as in this instance.

Trial judges tend to respond to what you argue -- they do not have the time or the backup staff to write a scholarly analysis of all of the many nuances of the cases before them. They tend to address only those arguments presented to them.

In this case, the government relied heavily on the state secrets doctrine and standing doctrine, an evidentiary rule and a procedural rule. There was much less argument by the government concerning the fourth amendment, FISA and other substantive legal issues.

The opinion therefore devotes more time to those issues argued most strongly, and less to the others. It apparently did what was necessary to address the issues actually presented.

Since the government presented only simplistic and bad arguments on the substantive merits, the opinion did not have to address them at length to refute them. That is simply how its done at the trial court level in federal court. As a law professor, you would like to see an opinion on such a big issue written with the thoughtfuleness and clarity of a law review article, but that expectation is entirely unrealistic.

To the extent that the opinion does not go into numerous issues or details concerning these substantive issues, its because the government did a crappy job presenting them for consideration.
8.19.2006 2:49am
Monkberrymoon:
Medis,
I guess my response is that a litigant's statement about the law in a press conference shouldn't have any bearing at all on the proceedings. I've been just looking at the indented paragraph of AG quoted above -- is there a factual admission that I'm missing, because I just see legal conclusions there.
I don't know what the gov't's legal arguments were in court, I just don't think an outside-the-record press conference is relevant one way or the other.

Charley:
Two things
All the foregoing is why I can't agree with your statement -- "and the Attorney General's statements are certainly sufficient basis for thinking that the program is within FISA". If the AG got up and said that Miranda was dead law, that wouldn't be a "sufficient basis" for accepting the legal proposition that Miranda is no longer viable.

Second, and i may be misreading you, but certainly it isn't the gov't's burden to prove a lack of standing. Standing is one of the things these guys have to show first, or it's all a big waste.
8.19.2006 3:05am
CharleyCarp (mail):
You are misreading me. (1) I'm saying nothing about standing. Plaintiffs have to prove that. (2) I'm not saying that the AG's statements amount to a legal concession from which the government cannot recover -- whether they do or not isn't a subject I've addressed. I'm saying that as to the question of whether the conduct of the government factually meets the factual elements of FISA, I think the statements of the AG are sufficient for 'information and belief.' Obviously if the AG tells you something that you don't believe, that's not sufficient for information and belief. If he says something and you believe it, though, that's enough to plead a fact. And if the government wants to avoid having such facts be deemed admitted against it on a summary judgment motion, it must either (a) prevail on its secrets argument or (b) present sufficient admissible evidence from which a factfinder could reasonably rule to the contrary.
8.19.2006 8:25am
Medis:
Monkberrymoon,

What the AG said is actually a mixture of law and fact. A purely legal assertion would be, as you suggested, something like "Miranda is no longer good law". But the AG didn't just say something about FISA in general--he said something about how FISA applies to this particular surveillance.

So, that statements contains a factual assertion as well: that the facts of the program are such that given the AG's construction of FISA, FISA does apply to the surveillance in the program. And again, while his construction of FISA might be a purely legal matter, his application of FISA so constructed to this particular surveillance requires a factual assertion.

That said, I think you are right that the government in this litigation was not bound by the AG's construction of FISA, and for that matter they weren't bound by his factual assertions either. But I think his statement would be admissible evidence on that issue, and so it could have been submitted in support of the Plaintiff's Motion for Summary Judgment.

But even that might have been unnecessary--if the government did not in fact dispute the Plaintiff's Statement of Undisputed Facts, then there was no material issue on this subject in the first place.
8.19.2006 10:36am
Just an Observer:
I am not taking it upon myself to moderate the conversation between Orin and Glenn. But, for the information of readers and commenters here, Glenn has posted a followup on his own blog today.
8.19.2006 2:40pm
Bob King (mail) (www):
The Opinion:

There are some particularly dry dismissals of the State's Secrets privilidge claimed by the governement, and one can almost hear "loose lips sink ships." She patiently explains that in order for a claim of state secrets privildge to be sustained, the facts in dispute actually have to be...
secret.


More, far more, at my blog. But that and the next paragraphs are the gist.

She showed commendable judicial restraint in not observing the bleeding obvious - that in repetedly confirming, bragging and talking up the NSA program, he had completely eliminated it as a tool for intelligence-gathering. From that moment on, any apparent leads from it must be presumed to be disinformation.

And lo, the FBI has complained that all they get from it is crap - exactly what you would expect from a blown intelligence operation.

Given that fact that is obvious to anyone with the intelligence bacground conferred by a John LeCarre novel, one has to wonder exactly why the president wishes to continue survaillaince? I can think of two or three possiblities - first, to prevent independant parties from gathering real intelligence from offshore sources that might bring his policies into contention. Second, to use the fact that one had communicated with a potential terrorist to be sufficient to survail or imprison someon on the presumption of terrorist complicity. And third, to listen in on the DCCC.



But in point of fact, we needen't wonder why the president would like to know things he's got no business knowing - at least, not knowing in any way that could be used against a citizen. You see, we are not concerned, practically speaking, about what information the NSA may learn in passing. What we are concerned about is the consequential effects of the misuse of that knowledge (in potential) and in this particular case, of the president telling the whole world that we were monotoring all communications of a certain sort imposed certain costs and damages on the plaintiffs.

The impact on our national security of our own President (and indeed, our AG) blowing operational security is outside the scope of the Court's consideration. But it seems to me the issue WE should be discussion. This is the third major compromise to US Intel operations by the Administration I know of offhand, and I've not been following all that closely.

I'm starting to wonder if Al-Queda hasn't hit us because they can't see the point.
8.19.2006 6:17pm
Dan Hamilton:
They are NOT argueeing about weither NSA complies with FISA because they are argueeing that IT DOESN'T matter. They are argueeing that the Presidents War Powers to gather FORIEGN intelligence trumps FISA.

If they argueed that the TSP did not fall under FISA because of FISA's definitions or anything else having to do with FISA they would be ACCEPTING that FISA CONTROLS the President War Powers to gather Foriegn Intelligence. They CAN'T do THAT.

Why does everyone have a problem understanding this?

The President does not want the Congress having power over the Presidents War Powers. Yes, the Presidents War Powers are scary. They are ment to be. He cannot alow the Congress to control those powers.

I have read before on this blog that the SC has left open the question if FISA controls the Presidents War Powers.

To the DOJ and the President FISA doesn't matter. The fight is over the Presidents War Powers and weither Congress has control over them or not.
8.19.2006 7:22pm
Medis:
Dan,

You write: "If they argueed that the TSP did not fall under FISA because of FISA's definitions or anything else having to do with FISA they would be ACCEPTING that FISA CONTROLS the President War Powers to gather Foriegn Intelligence."

That doesn't follow. If the surveillance in the TSP doesn't fall under FISA, then the government pointing that out wouldn't a concession that FISA would have been valid if it had been applicable. Rather, pointing that out would simply moot the entire issue.
8.19.2006 7:51pm
Bruce Hayden (mail) (www):
I think I must have read a different opinion than anyone else here. In her conclusion, she states that:
For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law.
I understand some of her reasoning for the 1st and 4th Amdt., but the rest? I am not even sure what statutory law was violated. FISA? If so, what provisions? Or was it Title III? Or some other unnamed statute? I assume that the APA is the Administrative Procedures Act, but sure can't determine that from the opinion. And I would be interested in case law supporting the granting of a permanent injunction based on the "Separation of Powers doctrine" all by itself. I never knew it was actionable.

Also, I would be interested in a finding of fact other than that known or suspected terrorists didn't talk to the plaintiffs because of their (reasonable) fear of being surveiled by the TSP. While this is fine for the 1st Amdt. claim, as well as standing, not calling would seem to indicate not being surveiled, which in turn would seem to cut against a FISA/Article III violation, as well as even the 4th Amdt. claim. And she stated shortly thereafter:
The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter.
As noted, she never indicated what statutory law was violated. And when determining the public interest, no mention whatsoever is made of balancing the interests of the plaintiffs against that of the rest of country in preventing the next 9/11 type attack. Sure, the equities may be "clear" to her, but without elucidating what she considered here, it is impossible to determine whether she did do any balancing whatsoever. Are the appeals courts supposed to guess here what she considered?

I just don't see any way that the ultimate appeal from this case can result in the TSP being held to violate FISA, Title III, the APA, or even, maybe, the 4th Amdt. She just blythely concludes most of the violations without any real anaylsis. I will admit that she does bolster her 1st Amdt. findings sufficiently for appeals courts to rule on it. But the rest of it? Are they supposed to guess at what statute is violated? At whose communications were illegally surveiled? At what administrative procedures weren't followed? Or what equities she considered in granting her permanent injunction?

Finally, you may want to read Ann Althouse's take on the opinion because of her colorful language.
8.19.2006 10:54pm
Bruce Hayden (mail) (www):
Brad

The more proper term is "Terrorist Surveilance Program" (TSP). The use of the word "domestic" is misleading, since, as far as we know so far, no domestic calls are being surveiled by it. Rather, the surveilance is supposedly limited to international and foreign calls (the later apparently due to a deal with long distance carriers, notably AT&T, to route foreign traffic through U.S. switches for the purpose of monitoring it).
8.19.2006 11:03pm
Bruce Hayden (mail) (www):
Let me rephrase my previous post about some of the problems with the opinion. I stated that the judge had limited her finding of facts to that the plaintiffs' communications had been chilled to people who had a reasonable expectation of having their electronic communications with the plaintiffs surveiled by the TSP. That wasn't quite accurate. She also mentions the undisputed statement that:
Each Plaintiff has alleged a “well founded belief” that he, she, or it, has been subjected to Defendants’ interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications. Persons abroad who before the program spoke with them by telephone or internet will no longer do so.
Thus, it could be argued that the only evidence before the court on the subject of whether the plaintiffs' conversations had been illegally surveiled was their information and belief. And, I will admit that in most instances, that would be sufficient to overcome their burden of proof.

But not in this case. The reason that it was not rebutted was most likely because the government refused under the State Secrets privilege to confirm or deny the allegation. As I understand how the government uses this doctrine, esp. in situations like this, they refuse to answer either way, because doing so would potentially give away operational information. In other words, while the usual reason to to not rebut an allegation is that it is true, in this case, the reason is that it would be illegal to do so. And, because of that, she can't determine that because the plaintiffs' statements were not rebutted, that they are true. Rather, this is IMHO an exception to affirmation by silence unique to this sort of case.
8.19.2006 11:15pm
Medis:
Bruce,

First, it would be nice to know exactly what the government did argue, rather than speculating about what they might have argued, and then holding Judge Taylor accountable for not addressing these arguments we speculate that the government might have made.

Second, Judge Taylor reviewed the classified material submitted by the government. She properly did not discuss that material in detail, but she found it would not aid the government's defense.
8.19.2006 11:24pm
Medis:
By the way, "Terrorist Surveillance Program" is also misleading, because by the government's own description, it is not necessarily the case that a party to the communication is actually a terrorist.
8.19.2006 11:26pm
Just an Observer:
Bruce Hayden: I am not even sure what statutory law was violated. FISA? If so, what provisions? Or was it Title III? Or some other unnamed statute? I assume that the APA is the Administrative Procedures Act, but sure can't determine that from the opinion.

I suppose you are just posing this question rhetorically, as your very similar rhetorical question was answered in another thread several hours ago and you seem to ignore the answer. But just to keep the record straight here, Judge Taylor left no doubt in her order which statutes were violated:

IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter "TSP") in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter "FISA") and Title III;

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III;


Now, you obviously find the explanation in the Memorandum Opinion unsatifactory. But let's not pretend we don't know what the holding was.
8.19.2006 11:44pm
Bruce Hayden (mail) (www):
JaO,

Sorry, it is hard to follow all the threads, so I missed that. The order does tell me what I suspected, that APA means the Administrative Procedure Act and that she found that the TSP violated both FISA and Title III.

I am used to decisions where the statute being violated is discussed, and the reason why it is violated is addressed. I am not sure at this point why Title III would be even implicated. As for FISA, I am left wondering whether she was finding there to be "electronic surveilance" under 1801(f)(1) or (f)(2) and how she knew that no FISA warrant had not been issued. Part of why that is confusing is that 1801(f)(1) talks about U.S. Persons, and she finds that all of the plaintiffs are such, while (f)(2) does not, but (f)(1) doesn't cover the situation where the U.S. Person in the U.S. is not the target, whereas this is not a factor under 1801(f)(2). As you know, I would suspect that 1801(f)(2) is the more relevant section. And I still don't know what the violation of the APA was.
8.20.2006 12:33am
Bruce Hayden (mail) (www):
Medis,

I agree. I don't know what the government argued here. I am just going on what I understand to be the standard practice in this sort of case, and, it may well be flawed. But it seems a lot more plausible to me that the government refused to confirm or deny based on the State Secrets Privilage, instead of that they confirmed the surveilance of communications of the plaintiffs. We shall, of course, see when this is appealed, whether the judge impermissibly (IMHO) used their refusal to confirm or deny as an implied admission here or not.
8.20.2006 12:40am
Bruce Hayden (mail) (www):
Medis,

I also agree that Terrorist Surveilance Program may be somewhat of a misnomer. Not every communications that is surveiled is to/from a known terrorists. Nevertheless, it is aimed primarily at such, and the reason, IMHO, the reason that Standing may survive appeal is because the chilled communications were between the plaintiffs and known or suspected terrorists or their affiliates. Most notably however, that is how it the program is designated by the court.

My problem with "domestic surveilance" is that instead of being only 90% accurate, it is closer to 0% accurate. It implies that the object of the surveilance is domestic communications, and that exactly opposite reality.
8.20.2006 12:47am
Bruce Hayden (mail) (www):
Medis,

Another thought in response to your point that
Second, Judge Taylor reviewed the classified material submitted by the government. She properly did not discuss that material in detail, but she found it would not aid the government's defense.
We of course don't know what she saw in camera, and there is some indication that her access even there was limited. Nevertheless, if you assume that she knows whether or not the plaintiffs were actually surveiled, then your quote would seem to indicate to me that they were - but that would essentially violate the State Secrets Privilege by disclosing that fact in the opinion. The alternative is that this information was not disclosed to her there either. Both situations would fit her statement that the classified information she saw wouldn't aid their case, but the later seems more logical to me, since it would not indirectly disclose classified information. Again, I don't know the answer to this, and am just trying to make educated guesses based on the little information we do have.
8.20.2006 12:56am
Just an Observer:
Bruce Hayden,

Since Gonzales and other senior officials have said that electronic communications within the scope of FISA have been intercepted without following FISA's warrant requirements, and since those statements were presented to the court, and since they apparently were never disputed by the government, the judge did not need to know which paragraph of the "electronic communitications" definition the officials might have been thinking of. It could even be more than one.

While we may be curious about such details, the judge easily found a prima facia case without them. Satisfying our curiosity is not a burden the judge has to carry -- especially since the government did not even make the claim that there were no "electronic communications" intercepted, or that the "TSP" utilized FISA warrants after all. (The government's public statements say the opposite.)
8.20.2006 9:55am
Bruce Hayden (mail) (www):
JaO

I am not sure which prima facie case you are talking about. Whether you like the outcome or not, I think the reality is that this is a fairly poorly written decision, and the judge doesn't very often point out where she got the basis for what. As Ann Althouse suggests, the opinion seems to go along just fine while the judge discusses the State Secret Doctrine, and into the discussion about Standing. But then it falls off of a cliff, just seeming to throw stuff out, totally ignoring important precedent, jumping to conclusions without specifying how she got there, etc., intermixed with rages about the imperial presidency.

But getting back to your cite, at this point, reading the statement of undisputed facts, is it your contention that the court can conclude from it that the plaintiffs were electronically surveiled? Or is it your contention that the TSP violating the 4th Amdt., FISA, Title III, and the APA, and supporting a permanent injunction against such, is legally justified with a showing that someone in this country, who may or may not be a plaintiff here, had their electronic communications surveiled by the program? Or is there a third alternative that you would like to suggest?
8.20.2006 1:25pm
Medis:
Bruce,

My point is that we just don't know what the government argued in camera, and what evidence it presented to support those arguments--and that is something we shouldn't know. But similarly, one then cannot assume that the government made a certain argument in those proceedings and Judge Taylor inappropriately rejected it. Because we just can't know.

Incidentally, if left undisputed, Judge Taylor definitely could conclude that the SUF supports a finding that the plaintiffs had a well-founded belief their communications were surveilled. The crucial part would be Paragraph 15, subparts A through C:

"A. Plaintiffs are a group of prominent journalists, scholars, attorneys, and national nonprofit organizations who frequently communicate by telephone and email with people outside the United States, including in the Middle East and Asia. (citations omitted)

B. Some of the plaintiffs, in connection with scholarship, journalism, or legal representation, communicate with people whom the United States government believes or believed to be terrorist suspects or to be associated with terrorist organizations. (citations omitted)

C. Because of the nature of their calls and emails, and the identities and locations of those with whom they communicate, plaintiffs have a well-founded belief that their communications are being intercepted under the Program. (citations omitted)"

So there you go. If the government did not actually dispute any of this, then there would be no material issue on these factual matters.
8.20.2006 3:22pm
Paul Leslie:
For all you people willing to give up all of your privacy, please do so. Just leave me out of it.

I am so happy you can all still drive and change the channel on your TV without an OK from Big Brother. I guess in your mind that is what freedom and the U.S.A. come down to.

Just a few points. Any freedoms you are willing to give up today aint coming back in your lifetime.
If you really think that Bush and Cheney want these expanded powers in order to keep terrorists from attacking America I have a lovely bridge to sell you in San Fransisco. The push for these new powers by the neocons has been going on since well before 9/11 and is all about controll of domestic dissent and holding on to power for the long term. That people have been so conditioned by fear as to mindlessly accept (remember the patriot act passed with no debate ) any law in the name of security is about as far from the the ideal of America as I can imagine. Just read the words of the founding fathers.
By the way both the United States and the very lives of the founders were in much more danger than we are now yet they had the courage to risk all for their ideals. How far we have come.
8.20.2006 3:24pm
Bruce Hayden (mail) (www):
Medis,

I will agree with that, as long you would agree that a refusal to confirm or deny based on the State Secrets Doctrine should be sufficient to negate the prima facie case there (of course, trial is very different, but as all know here, we are talking summary judgment here).

As we all keep saying, there is a lot here that we don't know, so we shall see.
8.20.2006 3:54pm
Just an Observer:
Bruce Hayden,

Since you are asking my opinion (which at this point matters infinitely less than Judge Taylor's opinion, which in turn matters less than what the higher courts decide), I think those undisputed facts make a prima facie case that FISA was violated, which also implicates the other statutes (Title III and the APA). Your question poses a strawman, since the plaintiffs' theory does not allege they were surveilled as a matter of fact.

The only defense the government even offered beyond that threshhold was the argument that the AUMF trumped FISA -- an argument that was argued thinly and rejected by the judge as a matter of law with as much attention as the brief deserved. The DOJ lawyers hardly articulated an Article II argument at all. I think they are afraid to pose that issue squarely, because it surely would lose 8-1 or 9-0 in the Supreme Court.

I am skeptical about the Fourth Amendment issue; I find the First Amendment issue to be at least colorable, and interesting because it has received little attention. I expect this particular case most likely will rise or fall on the question of standing, which is what I have thought for a long time.

If the higher courts ever reach the merits of the statutory question, Bush's goose is probably cooked. Whether the case gets that far is very much in doubt.

And I remind you once again that even if this particular case falls on the issue of standing, that will in no way uphold the President's contention that he has acted lawfully. He is obviously afraid to test that question. In fact, the President has had standing all along in the FISA courts to bring a test case raising the merits straightforwardly, but has shrunk from doing so.
8.20.2006 4:06pm
Just an Observer:
Not only did the court reject the DOJ lawyers' claim that they could not defend their case without revealing "state secrets," the court looked at the secrets and rebuked them for making the claim in the first place:

Finally, Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP. Defendants have presented support for the argument that "it . . is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies." Defendants cite to various sources to support this position. Consequently, the court finds Defendants’ argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.


In doing so, the judge obviously challenged the President's lawyers to make a legal case if they think they really have one.
8.20.2006 5:03pm
A.S.:
Charleycarp wrote:

AS, I don't understand why you don't think the plaintiffs made a prima facie case for a violation. They don't have to do any more than allege on information and belief that there was a FISA violation -- and the Attorney General's statements are certainly sufficient basis for thinking that the program is within FISA. This is enough to trigger the burden on the part of the government to present a genuine issue of material fact for trial.


No, you are wrong, I think. You only need to make an allegation "on information and belief" in the complaint. But to sustain a mation for summary judgement, OTOH, you need to present real evidence sufficient so that the judge can find that the plaintiff is entitled to judgement as a matter of law.

Rule 56(e) states that the evidence supporting a motion for summary judgment must be on "made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." That means that it is NOT sufficient, for purposes of summary judgement, to allege the facts on the basis of information and belief. You need to have personal knowledge, and have that in such a way as would be admissible in evidence. See also Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 (1950) ("In any event there is nothing available in the record to support the averment, since the affidavit in support thereof was made upon information and belief and the relevant portion, at least, does not comply with Rule 56 (e) of the Federal Rules of Civil Procedure.")

Now, I haven't read all the papers submitted in the case; I've only looked at the complaint. Medis (I think) said above there may be other papers submitted in support of the motion that contain the evidence. So maybe there was something submitted by the plaitiffs that would be suffucient evidence to support a finding that the program did, in fact, constitute "electronic surveillance", as defined in FISA. But the judge did not say anything to that effect in her opinion.
8.20.2006 7:36pm
A.S.:
Medis wrote:
By the way, I'm trying to understand the "caveat" Gonzales supposedly omitted. It seems to me he was being very straightforward in what he said ("the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday"), and any "caveat" we implied into his statement which would render FISA inapplicable to the surveillance would actually change the meaning of this statement.

The caveat that Gonzalez omitted in his press briefing is exactly was was written in footnote 5 of the White Paper.
8.20.2006 7:41pm
Xrlq (mail) (www):
Paul Leslie:
If you really think that Bush and Cheney want these expanded powers in order to keep terrorists from attacking America I have a lovely bridge to sell you in San Fransisco.


If you believe otherwise, I have a somewhat less lovely, but still functional bridge to sell you in Brooklyn. I wouldn't, though, if NSA had followed The Law According To Glenn Greenwald, and none of us had learned about Iyman Faris until after he had succeeded in blowing it up.
8.20.2006 8:10pm
Just an Observer:
A.S. The caveat that Gonzalez omitted in his press briefing is exactly was was written in footnote 5 of the White Paper.

Which caveat applied expressly only "for the purposes of" the white paper itself.

I am still waiting for you to cite the on-the-record retraction from Gonzales where he has applied that caveat retroactively to what he said at the briefing.

And, since Gonzales' statement is among the undisputed statements submitted to Taylor's court, please show us where the government did dispute it or attempt to modify it by some "caveat."

Gonzales said in plain English that "the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday." Was that a lie?

Still waiting for that retraction ...
8.20.2006 9:06pm
A.S.:
In taking a quick look over the papers submitted by the ACLU, I still don't see the evidence supporting a concllusion that the program constituted "electronic surveillance" under FISA. In particular, the definition of "electronic surveillance" contains 4 subsections. Which of these 4 prongs are met? And what is the evidence that such prong has been met? Can someone pplease point me to such evidence?

Remember, under FRCP 56, it is the party making the motion for summary judgement that must present evidence sufficient for a finding that the plaintiff is entitled to judgement as a matter of law (assuming there is no issues of fact). A simple assertion "on information and belief" isn't sufficient to meet that burden. And in my quick examination of the documents filed by the plaintiffs, I don't see where the plaintiffs have presented such evidence such that Judge Taylor could make the FISA finding she did. Nor do I see any analysis in her opinion pointing to such evidence. Strange.
8.20.2006 11:24pm
Just an Observer:
A.S.,

Why is it necessary to know which of the four prongs of the definition was met? The judge has no burden to satisfy your curiosity.

By undisputed statement of the attorney general, "the Foreign Intelligence Surveillance Act ... requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday."

FISA requires a court order only for electronic surveillance that meets its definitions. He could have been referring to nothing else.
8.20.2006 11:55pm
Medis:
Bruce,

I agree that the government could dispute the plaintiff's factual allegations without confirming or denying them on the public record. I still see no evidence that they actually did dispute the plaintiff's allegations, however.

A.S.,

As an aside, as JaO points out, simply transporting the caveat from the White Paper ("for the purposes of this paper") would make no sense. I suppose he could have said something like, "For the purposes of this press conference, I will assume that ...." But he didn't say that, and the footnoe in the White Paper does not contradict his statemwnt because it doesn't imply anything one way or another.

Anyway, you are reading the wrong part of Rule 56. 56(e) deals with the form of affidavits, but Rule 56 in general does not require affidavits. Rather, as stated in Rule 56(c):

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, IF ANY, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (emphasis added)

So, you don't actually need to submit evidence in the form of an affidavit on every material issue.

Here, in fact, the plaintiffs mostly relied on their Statement of Undisputed Facts, which is an admission on file with the court. In particular, Paragraph 9 of the SUF is:

"The Program is intercepting communications that are subject to the requirements of the Foreign Intelligence Surveillance Act of 1978 (FISA). In describing the Program, Attorney General Gonzales has stated that 'the Foreign Intelligence Surveillance Act . . . requires a court order before engaging in this kind of surveillance . . . unless otherwise authorized by statute or by Congress.'" (citation omitted)

So, if the government did not actually dispute Paragraph 9 of the SUF, that is enough to satisfy Rule 56(c), all without any supporting affidavits. Moreover, because the plaintiff's cited Gonzales' statement, which is probably admissible evidence, the government could not merely deny Paragraph 9, but they would have to "set forth specific facts showing that there is a genuine issue for trial." [Although as Bruce notes, they could try to claim the issue cannot be litigated without compromising the State Secrets privilege]

Of course, knowing what you have argued above, maybe you think the footnote in the White Paper alone would be enough to create a material issue (although I don't see how, since that footnote doesn't actually say anything on the subject, so is non-evidence, not contrary evidence). But again, we don't know if the government actually made any such argument.

And obviously, maybe they can't: perhaps Paragraph 9 is factually correct, and perhaps Gonzales meant exactly what he said, in which case the government could not dispute Paragraph 9 even if they wanted to.
8.21.2006 12:40pm