NY Times article on NSA wiretapping quotes bloggers.--

In a very solid article by Adam Liptak in tomorrow's New York Times, several bloggers comment on the weakness of the arguments in the recent NSA wiretapping case. Among those`quoted are Eugene and Orin (tip to Althouse, who notes how much the story conflicts with Friday's praise for the decision's reasoning on the Times editorial page).

Kevin L. Connors (mail) (www):
Oh bravo! I really think this is going to turn out to be another triumph of the blogosphere over the MSM.
8.19.2006 1:07am
So when will the commentators get our props?
8.19.2006 1:39am
AST (mail):
Howard Bashman is quoted using the phrase "on all sides of the spectrum". Maybe bloggers DO need editors. Everybody knows it should be "on all sides of the continuum".

And as for that argument that " the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored." How does a warrant cure that?
8.19.2006 1:42am
Kevin Murphy:
The article has maybe one, off-topic, comment from someone who thinks the program legal, and doesn't mention some of the better arguments I've seen here (e.g. border searches) that the judge ignored. There is also a bit of apologia for the judge's lousy reasoning ("rushed"). So to call it "balanced" seems only reasonable in the context of it being published by the Times, in contradiction to the triumphal editorial of yesterday.
8.19.2006 4:47am
Ship Erect (mail) (www):
Kevin, if there were better arguments available, why did the feds not make them in court? The judge responded to what was presented before her, not to VC commenters; the feds themselves "ignored" these arguments.
8.19.2006 5:36am
noahpraetorius (mail):
I think the Feds figured that no judge would grant the Plaintiffs standing and that to present the full range of arguments would prematurely signal their strategy should the issue legitimately come before a federal court.

Question for the lawyers: if the 6th Circuit overrules this opinion thereby just denying the plaintiffs standing, is the decision completely mooted?
8.19.2006 9:00am
Bruce Hayden (mail) (www):
That is my impression too - that the government put all their efforts into State Secrets and standing, and were caught flat footed when the judge all of a sudden found a way around the State Secret privilege and then standing. And I think that you can see this from the judge's writing - thoughtful at the beginning where she considered the State Secrets privilege, but almost ranting by the end. This seems to parallel fairly well where the Government is supposed to have been spending its efforts in this, and apparently other similar, cases.
8.19.2006 9:26am
Mark Field (mail):
Question for the lawyers: if the 6th Circuit overrules this opinion thereby just denying the plaintiffs standing, is the decision completely mooted?

Yes, with two caveats: the plaintiffs could still seek review by the SCOTUS; and there are other cases pending which raise similar issues. Those other cases, however, would address the 6th Circuit's opinion rather than that of the District Court.
8.19.2006 11:36am
elChato (mail):
It's amusing that a day after the Times's editorial page praises the reasoning of the opinion, a story comes out in their own pages demonstrating it is unanimously regarded as slipshod. Even the victorious plaintiff couldn't find much to praise in it.
8.19.2006 11:45am
Bruce Hayden (mail) (www):
My guess is that at some point in the appeals process, standing is going to be rejected. Of the entire decision, I would suggest that that was maybe the weakest. The State Secrets privilege workaround was somewhat slick - just use what is publically available, combined with evidence from the plaintiffs. But that locked the judge into a set of fairly unsavory people at the other end of the telephone calls - known and suspected al Qaeda. So, if a higher court just says, no, American citizens don't have a 1st Amdt. right to unfettered electronic communications with our enemies during war, plaintiffs' damages disappear, as does their standing.

If that is the case, then I see the appeals courts having a fairly hard time getting into the real merits of the case against the TSP. On the other hand, they could look at it from just the opposite perspective - that damage was shown, so now they can look at the claimed 1st Amdt. infringement, and reject that, but since there was standing, well, might as well look at everything else.

Obviously, I am an expert in neither 1st Amdt. nor Standing. But I can't help but think that this case is not the vehicle that at least the Supreme Court would like to see used to try the merits of the case. The most important elements of the issue were mostly not addressed in the discussion, and, it appears, maybe not fleshed out by the parties. In particular, the judge in her decision seemed to be consciously avoiding the key question that needs to be litigated - does NSA's TSP violate FISA?, because that would have opened up the door to the Administration's argument that if the TSP does violate the letter of FISA, FISA is unconstitutional as applied here.

Of course, she could have also been running into the State Secret privilege here again, because part of the way she got around it was to bypass the question of whether or not any electronic conversations were actually surveiled between the plaintiffs and anyone anywhere in the world. Rather, she looked at the chilling effect that knowledge of the program had on their conversations. But without a finding of fact that conversations between a plaintiff and anyone outside the country were surveiled, there could be no showing of a FISA violation. And without a finding of a FISA violation, the legality of the TSP under FISA cannot really be reviewed.
8.19.2006 1:54pm
Bruce Hayden (mail) (www):
Let me clarify my last comment, after rereading the opinion. In her conclusion, the judge determined 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". The problem is that she did no such thing. She found 1st and possibly 4th Amdt. violations, but mentioning FISA in her opinion is a long way from finding that the TSP violated federal law. Her one finding of fact was that there was a chilling effect from the knowledge of the program by known or suspected terrorists. But that is exactly the opposite finding that she would need for a FISA violation - that illegal surveilance actually had occurred.
8.19.2006 2:16pm
Just an Observer:
Bruce Hadyden,

The judge did find that FISA was violated. She just did not explain her reasoning to the satisfaction of all the critics of her opinion.

From the order:

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;
8.19.2006 2:59pm
Adam (mail) (www):
I'm a fan of each of the bloggers quoted, but I found this article just bizarre. Howard's not an expert in this area of the law (nor is he nonpartisan), and it just felt to me like "I'm too lazy to call experts on the phone; I'll just read some blogs." Because there are plenty of lawyers and lawprofs with expertise in this area who aren't bloggers.
8.19.2006 6:25pm
Dan Hamilton:
They are NOT argueeing about weither TSP 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?
Or am I missing something? I believe that there are good argueements that FISA doesn't cover the TSP by the definitions in FISA. But the DOJ is protecting President's War Powers.

The President does not want the Congress having power over the Presidents War Powers. Yes, the President's 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 President's War Powers.

To the DOJ and the President FISA doesn't matter. The fight is over the President's War Powers and weither Congress has control over them or not.
8.19.2006 7:28pm
Harry Eagar (mail):
Does there have to be a reasonableness test on chilling?

I have little doubt that some of the plaintiffs were chilled, but it doesn't take much to frighten a professional appeaser.
8.19.2006 9:53pm