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A Question about FISA and Injunctive Relief:
In his comment at Balkinization about Judge Taylor's NSA surveillance opinion, Laurence Tribe writes:
Had I been in [Judge Taylor's] place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA.
This raises a question I've been wondering about: Does FISA permit injunctive relief? Maybe this question is completely and utterly obvious to civil litigation types out there, and I'm just missing the obvious because I'm a criminal law persion. If so, I'll just tuck my tail between my legs and scamper off. But I began to wonder about this when I was looking at FISA's civil remedies provision, 50 U.S.C. 1810, which states:
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.
As a matter of text, injunctive relief is not included, unlike the analogous provisions of the Wiretap Act (which states explicitly that a court can provide "such preliminary and other equitable or declaratory relief as may be appropriate" in a Wiretap Act civil suit). I guess the civ pro/fed courts question is, does the existence of a damages remedy automatically give judges the authority to provide injunctive relief in appropriate cases as well? Thanks for any guidance you might have.

  (Incidentally, I found cases indicating that injunctive relief is disfavored in cases with national security or foreign affairs implications, but the issue here is more about whether injunctive relief is permitted rather than whether it is favored or disfavored.)
Just an Observer:
My understanding is that this action was not brought directly under the civil liability section of FISA, 50 USC 1810, which does not provide for injunctive relief and has burdensome requirements for seeking damages.

Rather, the ACLU's cause of action was brought under the Administrative Procedure Act 5 USC 701 et seq, which in turn relies upon the claims of underlying statutory and constitutional violations (FISA, Title III, First and Fourth Amendments).

I claim no special expertise, but I believe the APA is a favorite vehicle for persons seeking to sue the government for a variety of reasons.
8.21.2006 12:24am
Dave Hardy (mail) (www):
The damages section appears to have been taken from the Privacy Act, 5 USC 552a, if I recall correctly. I'm unaware of any injunctive relief available under it.

Admin Procedure Act relief would seem a bit doubtful. Injunctive relief is normal there, but the cases I've seen relate to administrative decisionmaking. The issue of whether a rule was made (and I assume nothing was published in the federal register on this). Of course the fact that there is no precedent may just mean that no one has thought it up yet.
8.21.2006 1:23am
John Thacker (mail):
Prof. Tribe's post is pretty (unintentionally) amusing because of the way he goes on about how the criticism of process should be shielded from the public and the press and confined to law reviews. Because the real issue should be criticizing the evildoers Admininstration who are the real enemy, and any issue of correct process being followed is surely secondary to the "far more important conclusion" of criticizing "those with constitutional blood on their hands." Because if you criticize the failure to uphold the process and do things correctly, or criticize rhetoric that goes too far against the evildoers Administration, you're helping the terrorists Administration win.

It echoes far, far too strongly those who want to ignore process when it comes to taking action against terrorists. It also strongly echoes those who want criticism of certain secret programs to be kept internal rather than leaked and splashed on front pages. Prof. Tribe would (rightly) criticize statements like his aimed at those who believe that process is important when fighting terrorists.

I prefer the quote from A Man from All Seasons myself:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
8.21.2006 1:28am
Ming the Merciless Siamese Cat (mail):
Tribe bizarrely accuses those who criticize the Judge Taylor's opinion outside of "law reviews and other scholarly venues" of trying to "underscore [their] own professional credentials" -- as if credential burnishing weren't the very raison d'être for law reviews.

Hell, were it not for those seeking credential enhancement of one form or another, the vast majority of law reviews in the US would have no content whatsoever and would have to close their doors.
8.21.2006 2:30am
GrandCRU (mail):
Isn't it funny that Tribe is criticizing opportunistic law professors who comment on controversial topics? Tribe, who often enough appears on Charlie Rose to debate topical issues? Tribe, who instructs Senate Democrats on how to Bork judicial nominees? Tribe, who wrote God Save This Honorable Court? Tribe, who fails to criticize Erwin Chemerinsky's airbrushing of Judge Taylor's opinion in Slate magazine?
8.21.2006 4:30am
Perseus (mail):
Tribe, who wrote God Save This Honorable Court?

Not wrote, but "plagiaphrased" from Henry Abraham's Justices and Presidents.
8.21.2006 5:46am
J.U. (mail):
For a good discussion of the interplay between the Privacy Act (which is similar in its remedies structure) and the APA, see Doe v. Chao, 435 F.3d 492 (4th Cir. 2006). Footnote 17 deals with a this question:

"We note that we do not read these cases to stand for the proposition that the Government may not be enjoined from violating the Privacy Act by disclosing personal records. Instead, we read these cases as stating that such relief is not authorized by the Privacy Act, standing alone. Often, however, and as was the case in the instant action, injunctive relief for a Government's violation of the Act will instead be appropriate and authorized by the APA. See 5 U.S.C.A. § 706(2)(A) (West 1996) (empowering courts to “hold unlawful and set aside agency action ··· found to be ··· not in accordance with the law”)."
8.21.2006 10:25am
Rodger Lodger (mail):
May his Tribe decrease.
8.21.2006 10:31am
eddie (mail):
I find the irony too too thick when a person quotes "A Man for All Seasons" in defense of the non-substantive process of monday morning judicial quarterbacking, when the true application of the quote would be more appropriate for the subject matter of the decision that is being rhetorically criticized.

Perhaps, this was not the most profoundly written or critically reasoned decision; but the meaning of the decision is of the utmost importance for our country at this point in time: The clear letter of the law has been broken and it has been broken by the very persons entrusted to uphold same.

One can always "make the argument"; but it takes courage and honor to actually uphold the law in the face of those claiming the absolute power to ignore it.
8.21.2006 12:22pm
David Maquera (mail) (www):
Eddie,

Regretfully for those who take the practicing of law seriously, you pretty much summed up Judge Taylor's legal opinion.
8.21.2006 12:52pm
Phutatorius (www):
It makes sense that the ACLU's challenge to the 'tapping program would not come under the damages provision of FISA. First off, it would be hard as heck to establish your private right of action (i.e., your "aggrieved person" status) without getting some information on whether you specifically were made subject to datamining. I don't see the Administration serving up that information anytime soon.

Second, it's not clear to me how a potential plaintiff would, on these facts (where the prior approval of the FISA court was never sought), establish that he was "aggrieved" under FISA, as opposed to under the general wiretapping statutes (which do make injunctive relief available; of course, good luck again proving that you've been unlawfully surveilled).

Is it the case that anyone unlawfully subjected to "electronic surveillance" (as defined in FISA) would have a FISA claim? Or does the FISA private right of action only apply to instances in which the government endeavored to initiate surveillance by the FISA procedures — that is, it somehow labeled its surveillance as FISA surveillance, but it somehow violated the terms set forth in that statute? If the former, it seems like there is substantial overlap between the "electronic surveillance" forbidden by FISA and the intercepts forbidden in the wiretapping laws. As a result, a plaintiff would likely have the benefit of bringing both a FISA claim and Wiretap Act claim, and the different remedy schemes that attach to each.

If that's the case, my "Second" point goes out the window. Any thoughts? Is my analysis way off?
8.21.2006 4:02pm
JunkYardLawDog (mail):
Eddie,

It takes even more courage for a federal judge to oppose claimed abuse of power by the President by making an even larger abuse of power of her own by violating the separation of powers embedded in the constitution and taking it upon herself the unconstitutional role of acting commander in chief to substitute her judgment as acting commander in chief as to what, when and how battlefied intelligence of the enemy shall be gathered at a time of war.

A bigger abuse and violation of separation of powers and bigger power grab by this judge and all those who support her unconstitutional power grab could not be imagined if one tried. This judge's unconstitutional power grab by Judge Taylor is a supposed cure FAR WORSE than the claimed disease in the executive branch. The President's actions do NOT endager our lives or well being or privacy to any real or measurable extent. On the other hand this judge's unconstitutional actions would, if allowed to stand, greatly and substantively increase the danger to all our lives, the economy, our ability to fund future defenses, etc.

Of course many, if not most, who support this judge's opinion and who hail the stopping of the patriot act and other perfectly reasonable measures to keep us and our society safe and functioning do NOT see great and substantive increases in the danger to all our lives, our culture, our economy and ability to fund future defensive measures as a bad thing at all. The ACLU and their ilk and the radicals on the left still haven't gotten over the Soviet Union not defeating us during the cold war.

Says the "Dog"
8.21.2006 4:49pm
Medis:
Phutatorius,

You ask: "Is it the case that anyone unlawfully subjected to 'electronic surveillance' (as defined in FISA) would have a FISA claim?"

I think that is exactly what Sec. 1810 and Sec. 1809 do (provided that the unlawful electronic surveillance was done under "color of law", see Sec. 1809(a)). And in that sense, I think there can indeed be an overlap between FISA remedies and the remedies in other acts.
8.21.2006 4:53pm
Medis:
I'm pretty sure JYLD is satire, and in that vein I just want to applaud the nice touch of referring to the USA-PATRIOT Act (given that FISA was in fact amended as part of that act).
8.21.2006 4:55pm
JunkYardLawDog (mail):
Medis,

Not satire, as you should know, and Harry Reid and a roomful of democrapic leaders hailed the stoppage of the Patriot Act before they were finally forced to vote for a modified version months later. We know however where their true hearts lie, and it isn't where their lips pretend it is. That is obviously to which I referred in the above post. You just need to keep up with political events more closely in order to understand the references.

They voted against it (and bragged about defeating it) before voting for it. They would kill it if they could. They do not want to defend the country. They do not want a defense. They just want money and power. It is not possible to describe the level of disgust and contempt to which I find these evil buffoons. Even *I* am at a loss for words and language to adequately convey my complete disrespect for them. They are a waste of human skin.

Says the "Dog"
8.21.2006 5:04pm
Medis:
JYLD,

I think you may have just elevated yourself to meta-satire (satirizing an attempt to prove you aren't satire).

But I will shut up now, because I don't want to ruin a good bit.
8.21.2006 5:29pm
JunkYardLawDog (mail):
Medis,

I'm glad you're entertained. If the matters involved weren't of such substantial and serious nature, perhaps I could find some humor in the attempts of the democratic party and most of the major media outlets to destroy this country and its economy. Since it is substantial and serious I find the prospect of USA citizens dying for the extreme paranoia of the radical left and power mad left wing politicians to be a bit sobering instead.

To each his own.

Says the "Dog"
8.21.2006 6:23pm