pageok
pageok
pageok
What will the Sixth Circuit Do on Appeal in the NSA Surveillance Case?:
The criticism of Judge Taylor's opinion on the NSA surveillance program has been met by a flurry of criticism of the criticism, much of it making the point that the quality of Judge Taylor's opinion is irrelevant because DOJ should have lost anyway, even if for reasons that Judge Taylor didn't expain.

  Weirdly, however, I haven't actually seen an analysis of the why that is the case. To be clear, I have seen (and participated in) tons of discussion on the merits of DOJ's defense of the surveillance program as an abstract matter. But I haven't seen much on the merits of the Taylor case as an actual legal dispute, with all of the procedural and evidentiary steps such cases have. The two are quite different, of course: I find the DOJ's defense of the program to be weak, for example, but the substantive merits of those arguments are only a very small part of the actual case before Judge Taylor.

  Part of the problem is the current procedural posture of the case. As I understand it, DOJ's response to the motion for summary judgment filed in the case was to assert the state secrets privilege, which basically put the case on hold until the state secrets privilege issues were worked out. In other words, DOJ said, "we're not going to even respond to the merits of the issues in this suit because it shouldn't go forward under the state secrets privilege, and that has to be resolved first." After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government. (Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.)

  So imagine you're a Sixth Circuit judge, and imagine (to make the case interesting) that you agree with Judge Taylor that the state secrets privilege should not block the suit. What then? It seems to me that it's way too early to just resolve all of the legal issues in the case without briefing; presumably you would want to send it back to the district court for discovery and fact-finding, or for resolution of the many difficult procedural issues in the case.

  What are those procedural matters? Well, a few come to mind. For example, does FISA permit injunctive relief? If not, does the Administrative Procedure Act permit courts to make an end-run around this failure to provide for injunctive relief? Article III standing aside, can a court grant injunctive relief for Fourth Amendment violations without first finding that the plaintiffs' own Fourth Amendment rights were violated? What about FISA and the Wiretap Act, which all incorporate the same "aggrieved person" standard designed to mirror the Fourth Amendment standing inquiry rather than the Article III standing inquiry? If an injunctive remedy is permissible and merited, what is the proper scope of that remedy -- should the injunction stop the illegal parts of the program, or the program as a whole that happens to have some illegal parts? It seems to me that there were lots and lots of legal issues like this that had to be answered before Judge Taylor could reach the merits and (potentially) enjoin the program, even assuming that DOJ's defense on the merits is weak and the states secrets privilege doesn't apply.

  What does this suggest about what the Sixth Circuit will or should do on appeal? Well, to me in suggests that the Sixth Circuit should reverse, whether on the state secrets privilege (if the judges agree with DOJ on that) or simply on the procedural impropriety of bypassing discovery and briefing on the law and all of the procefural and substantive issues raised (if the judges don't). Even assuming that DOJ's arguments are weak, there are still a lot of procedural hurdles to jump through in this case.

  That's my sense, at least. I'm not an expert in the area of civil litigation, so please help me out if you think I'm wrong. Also, for the comment thread, please understand that I'm not trying to score points or try to make one side or the other look bad or good; I'm just trying to figure out a lawsuit, and I really don't care who the parties are or what the political consequences may be.
frankcross (mail):
Setting aside should, I predict what the 6th Circuit will do is what you suggest, reverse on standing or other procedural grounds.

A pretty strong conservative panel might prefer to reverse on the merits, and a strong liberal panel affirm on the merits. But either could be a little chastened by the prospect of Supreme Court review.
8.21.2006 5:12pm
JunkYardLawDog (mail):
Orin, what do you think the chances are they will remand to a *different* judge for new/continued proceedings. The appeals court did this in the 199x DOJ v Microsoft case when Judge Pennfield Jackson issued what I thought was a most correct decision against Microsoft. The appeals court took the case away from Jackson and gave it to a different district judge for further proceedings and a new/different judgment to be rendered.

I predicted (maybe hoped is a more apt description of my feelings), not on a strict legal analysis, but just on my gut a couple of days ago that this is what would in effect happen. The appeals court would find prejudice against the government in this matter and remand it for more/new proceedings to a different judge. Just like in the DOJ v Microsoft case.

You're much more informed on these things than I. What do you think the chances are of it being remanded to different judge to be?

Says the "Dog"
8.21.2006 5:14pm
Jack Carver (mail):
"simply on the procedural impropriety of bypassing discovery and briefing on the law and all of the procefural and substantive issues raised"

The DEFENSE did not raise any of these alleged issues. The Judge is NOT the defense attorney. She is not required or even entitled to defend the case for the government.

The DEFENSE... aka Gonzolas et al... are free to blow thier own case and lose. The Judge is not a safety net to prevent the incompetent government lawyers from losing the case by failing to avail themselves of a more vigorous defense. the Appeals court is not goig to come to the rescue and save the defenses case either, that is not thier job.
8.21.2006 5:36pm
Mark Field (mail):
Generally speaking, asserting a privilege -- the Fifth Amendment, say -- doesn't satisfy the defandant's obligation on a Motion for Summary Judgment. While the plaintiff still must produce admissible evidence showing that it is entitled to judgment as a matter of law, and can't simply rely on the lack of any opposition, the privilege assertion pretty much leaves the plaintiff's evidence uncontested. Assuming the ACLU did put on a prima facie case, the government's tactic left it vulnerable to exactly the ruling the judge made.

The other usual request in opposition to an MSJ is for the right to conduct discovery. It seems obvious that this route was not available to the government in this case.
8.21.2006 5:38pm
Just an Observer:
After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government.

That is not at all my understanding of what occurred. The judge ruled on a motion for summary judgment, based on the undisputed evidence. There was no discovery pending. (I am neither a litigator nor a law professor, but that's how I thought summary judgment works in this case.)

The plaintiffs were not seeking to discover any state secrets. It was the government that asserted that it could not mount a viable defense without secrets, but the judge examined the secret material proferred and made a finding that it was not necessary for the government's case. And she found that a prima facie case existed without consideration of any such secrets, a finding that presumably would have been made even if the state-secrets issue never obtained. The prima facie case, she found, was based on the undisputed facts before her, which was exactly what the plaintiffs asserted.

It was not a situation where the judge would not "let the government brief on the merits." To the contrary, once she denied the government motion to stay consideration of summary judgment, DOJ had the opportunity to brief the merits, but basically stonewalled. The thin gruel addressing the merits was all the government would deign to provide.

As a footnote, Judge Taylor actually agreed that the state-secrets privilege applied to the material she reviewed, and dismissed the separate datamining claim on state-secrets grounds.
8.21.2006 5:41pm
Richard Bellamy (mail):

After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government.


Orin,

I have been involved in many cases where I have, for example, filed a 12(b)(6) motion because, for example, the Plaintiff filed a claim under a statute that had been repealed, or was clearly irrelevant, and gotten a response granting the motion before the other side had responded. There is no "Right to Brief." And I have never seen a case dismissed or reversed on that ground.

Meanwhile, the quoted portion misses the point. Plaintiffs weren't SEEKING discovery. The Plaintiffs were relying on public statements by the government, and the judge didn't think any information that the plaintiffs would disclose to the government would make a difference.

A party can move for summary judgment at any point, and have it either granted (if there is enough evidence to grant) or rejected (if there isn't). It may be foolish to move for summary judgment at an early stage, but if you do, and if a judge feels that she has enough information to rule in your favor, she will do so.

If you have evidence before you, and there is no possible defense to the claim, then there is no reason to wait.
8.21.2006 5:42pm
OrinKerr:
Jack, Mark,

I don't understand. These issues are very fact-specific, and DOJ's argument is that you can't brief them without the facts -- and the facts are highly classified. What should DOJ do?
8.21.2006 5:42pm
alkali (mail) (www):
After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government. (Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.)

As best as I can tell, the sequence of events is as follows:

On March 9, 2006, plaintiffs moved for partial summary judgment. At DOJ's request, the court extended DOJ's time to oppose to May 19.

On May 16, DOJ asked for another week (i.e., to May 26); the court granted that.

On May 26, DOJ moved to dismiss or for summary judgment and moved to stay as to plaintiff's motion for partial summary judgment.

On May 31, the court denied the motion to stay, indicating to the DOJ that it wanted substantive briefing on the merits of plaintiff's motion.

On June 2, DOJ moved for a "clarification" of the courts order, which was basically a motion for reconsideration, but pointed out that certain portions of the briefing it had already filed addressed plaintiffs' motion, and also suggested that there were Rule 56(f) issues (i.e., the government could show facts in dispute if it were granted discovery).

On June 5, plaintiffs filed their reply memo in support of their motion for partial summary judgment.

On June 6, plaintiffs responded to the motion for clarification, arguing: "no further facts are needed to resolve plaintiffs’ motion for partial summary judgment. Because plaintiffs are entitled to partial summary judgment without the introduction of additional facts, defendants’ state secrets claim need not be reached at all with respect to this portion of the case. The state secrets doctrine is an evidentiary privilege, Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983), and it simply has no relevance here, where plaintiffs’ pending motion is based entirely upon facts that defendants have already conceded and that are widely known to the public."

On June 7, DOJ replied on the motion for clarification.

On June 20, plaintiffs opposed DOJ's motion to dismiss or for summary judgment.

On June 30, DOJ filed its reply on its motion to dismiss or for summary judgment.

On July 10, the court heard oral argument.

On August 17, the court ruled.

Question: If you think you have a winner on a threshold issue, but the court tells you to brief the logically subsequent issues anyway, should you (a) do that or (b) tell the court to get lost? Looks like DOJ chose (b).
8.21.2006 5:43pm
alkali (mail) (www):
These issues are very fact-specific, and DOJ's argument is that you can't brief them without the facts -- and the facts are highly classified. What should DOJ do?

Begs the question -- why are the issues "very fact-specific"?
8.21.2006 5:50pm
OrinKerr:
Alkali,

Thanks a TON for the background of the case; this is very helpful, and I hope to have an update or new post up soon about it.

As for your 4:50 post, well, I teach and write in the area of the Fourth Amendment, and I know I have no idea about the merits of the Fourth Amendment claim. I have some guesses, based on guesses about how the surveillance is probably being done, but it all depends on the details. Fourth Amendment law is very fact-specific as a field, and surveillance law is particularly so. And here we know none of the details, right?
8.21.2006 5:57pm
Mark Field (mail):

Jack, Mark,

I don't understand. These issues are very fact-specific, and DOJ's argument is that you can't brief them without the facts -- and the facts are highly classified. What should DOJ do?


alkali's post sets out the sequence very well. I'll keep using the Fifth Amendment analogy because there's case law on it, though we all have to recognize there may be different policies involved.

Asserting a privilege as the sole opposition is a risky tactic because it's all or nothing. The party asserting the privilege has in its possession the facts, if any, necessary to defeat the plaintiff's prima facie case. If it chooses not to use those facts, well, it's asking for a defeat.

If I were the government's lawyer, I'd have sought writ review of the denial of the motion to stay. I suspect the 6th Circuit would have granted the writ. That would at least have delayed matters substantially and possibly resulted in a favorable ruling on the government's strongest procedural point. Going ahead with the MSJ hearing ran the very risk alkali suggested.
8.21.2006 6:01pm
Medis:
I think alkali is right--the DOJ can't refuse to provide any opposition to the MSJ whatsoever. Of course, Judge Taylor could have denied SJ on the ground that the motion could not be adjudicated due to the State Secrets issue, but before deciding the motion she reviewed the the classified material the DOJ claimed would be crucial to their defense and she specifically found that it would not in fact aid their defense on the merits.
8.21.2006 6:01pm
Medis:
Orin says: "And here we know none of the details, right?"

I think this is a crucial point. We don't know the details, but the DOJ presented their classified material to Judge Taylor. She rightly did not describe this material, but she found that it did not aid their defense on the merits.
8.21.2006 6:05pm
John Herbison (mail):
It appears that the Department of Justice elected not to brief the merits of the Plaintiffs' claims, notwithstanding the District Court's twice denying the government's motions to continue the Plaintiffs' summary judgment motion. If discovery was needed in order to respond to the summary judgment motion, the DOJ could have apprized the court of that need for discovery under Fed.R.Civ.P. 56(f), which it apparently did not do.

Any civil litigator knows that, where a summary judgment motion is made and properly supported, responsibility for showing a material, factual dispute sufficient to preclude summary judgment shifts to the non-moving party, and the non-movant ignores this at his peril. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Indeed, a district court has the power to enter summary judgments sua sponte, so long as the losing party was on notice that it had to come forward with all of its evidence. Id., at 326.

For example, if the DOJ for tactical reasons declined to adress the merits of the Plaintiffs' Fourth Amendment claims, then summary judgment would be appropriate on such claims, in light of the well-established presumption that a warrantless search or seizure is constitutionally unreasonable. It is elementary that the burden of justifying a warrantless search rests upon those who would proceed without a warrant. If the presumption of unreasonableness is not rebutted, then summary judgment in favor of the party aggrieved by the warrantless search is quite appropriate. (Whether these Plaintiffs have established that they are aggrieved persons will of course be subject to de novo review on appeal.)

While the portion of Judge Taylor's opinion addressing the merits is not artfully crafted, the government has its own gamesmanship to blame. To the extent that Judge Taylor's order advances further judicial review of a program as to which the administration has assiduously avoided any form of judicial review or accountability is a good thing. This order serves the purpose of the proverbial two by four used to get the old mule's attention.

Appellate review of an order granting summary judgment is de novo on the record developed before the trial court, with no presumption of correctness. In this case it will be quite interesting to see whether the DOJ abandons its "pay no attention to the man behind the curtain" posture.
8.21.2006 6:06pm
stevesturm:
A question from a non-lawyer: why would the government attorneys make such blatent procedural errors such as alleged in the above comments? Presumably they went to decent law schools and did some time where they were taught the basics of civil procedure...
8.21.2006 6:16pm
Mark P. (mail):
Orin has hit the nail on the head. With all the constitutional discussion going on, there should be an even better Civ. Pro. discussion. The district court's summary-judgment decision was completely premature. In her written opinion, the judge has many factual citations to non-judicial statements of numerous individuals, including in internet reports (see footnote 1, for example), regarding the "facts" of the United States' surveillance program. One wonders how the plaintiffs ever showed whether the authors of those statements had personal knowledge of the facts -- a pretty basic requirement, but an important one.

This case screams out for a reversal on standings grounds. If the Sixth Circuit does, however, also reach the United States' "state secrets privilege" argument and rejects it -- another dubious proposition -- there still remains the question whether plaintiffs have shown that "there is no genuine issue of material fact" AND "that plaintiffs are entitled to judgment as a matter of law."

So far, the plaintiffs have only shown that there are a ton of genuine issues of material fact: specifically, what, exactly, did the United States do? When? How? Where? Who? Moreover, the plaintiffs must show that they are entitled to judgment as a matter of law. If the plaintiffs can specifically articulate what the United States has done (which, so far, they can't), in a way that no reasonable trier of fact could reject the plaintiffs' admissible factual evidence (Liberty Lobby), have the United States' actions violated the law? If so, what law or laws?

If the United States were to refuse to file an answer after the district court rejects its motion to dismiss, or if the United States were to refuse to provide the plaintiffs responses to discovery requrests about the facts of the United States' program, there would be a ton of interesting issues. But first, before confronting those situations, there would and should be an interlocutory appeal (either by permission or under the Cohen Doctrine) of the district court's standings and state-secrets-privilege rulings on the United States' motion to dismiss.

Forget the criticisms of the district judge's overblown rhetoric, the district judge's main error was over-reaching in order to address the substantive issues alleged by the plaintiffs. Perhaps she knew that, if the case is (as it should be) confined to the standings issue or the state-secrets issue, she would probably never get the opportunity to address the substantive issues alleged by the plaintiffs. Unfortunate. But that's why we have appellate courts. Nevertheless, it was a bad day for the Rule of Law ("Hey, I'm probably going to get overturned on appeal, so I need to be sure to address the issue that I want to address before this goes up on appeal."), as well as for Separation of Powers.

Markp
8.21.2006 6:19pm
dammitboris (mail):
it's been awhile since law school, so my only comment is going to be that perhaps Judge Taylor moved the way she did is for the reason raised in many places (an early post on Balkinization comes to mind), that she was rushing to beat consolidation of the case in San Francisco or passage of Sen. Specter's compromise bill on the NSA program. just a possibility.
8.21.2006 6:22pm
Bryan DB:
Orin wrote:
"And here we know none of the details, right?"

Not right, I think. The plaintiffs will have provided facts in their motion for summary judgment. The defendants presumably provided opposing facts that the judge inspected ex parte. Those facts apparently were not sufficient to defeat the summary judgment motion. We might know none of the facts, but facts were alleged in support of the prima facie case for summary judgment, and the judge (who does know the facts) found that no factual dispute remained to prevent that judgment.
8.21.2006 6:25pm
Spartacus (www):
On what I believe is a related note, wasn't the district judge wrong to reach the constitutional questions when she apparently found against the governemnt on statutory grounds? Doesn't this fall under constitutional avoidance? So even if the 6th Cir upholds the SJ, shouldn't it make clear that the district ct's constitutional holdings were unnecessary and premature? And then, if Congress authorizes the program, we get to start this all over again, bcs the constitutional holding is basically bad law?
8.21.2006 6:28pm
Medis:
Mark P.,

As we have discussed elsewhere, in order for there to be a material issue, the government would at least have to dispute the plaintiff's Statement of Undisputed Facts in relevant part. Do you have any evidence that they did so?
8.21.2006 6:31pm
Medis:
Spartacus,

I'm not sure what doctrine you have in mind. There is a doctrine which basically says courts should try to avoid invalidating statutes on constitutional grounds (although it has a lot of caveats), but to my knowledge there is no doctrine which says courts should try to avoid holding government actions unconstitutional. But I could be wrong.
8.21.2006 6:34pm
Glenn Greenwald:

Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission


Orin - John Herbison explains the point perfectly, backed up by Alkali's procedural history. The court instructed the DoJ to address the substantive issues. For the most part, it chose not to, which meant it did not dispute most (if not all) of the plaintiffs' facutal assertions.

Under Rule 56, the court is not only entitled - but required - to treat those factual propositions as undisputed for purposes of a summary judgment motion (and this includes the only fact you seem to think is in dispute - namely, whether the eavesdropping they are engaged in is within the scope of FISA).

Thus, the DoJ's failure/refusal to refute those assertions is absolutely tantamount to concession, at least on a Summary Judgment motion. Far from "bizzare," that is the most basic principle of Summary Judgment, as John Herbison explained. Any party's failure (regardless of why it fails) to dispute relevant facts on Summary Judgment will mean that those facts will be treated as undisputed.
8.21.2006 6:42pm
David Walser:
I'm not following the logic of why some believe the DOJ did not properly defend this suit. Plaintiffs filed for summary judgment and DOJ responded that it could not brief a response to Plaintiff's motion without disclosing state secrets. People are claiming that DOJ put all its eggs in one basket by not, in addition to making the state secrets claim, briefing the facts of the case in response to Plaintiff's motion. However, wouldn't briefing the facts have doomed the state's secrets claim from the outset? DOJ is making the argument that it cannot properly defend against Plaintiffs' claims without disclosing state secrets.

It seems, as Orin originally suggested, this claim of privilege should be resolved before DOJ was required to brief the facts. It's unclear from alkali's timeline when the Judge made her in camera review of the facts pertaining to the state secrets claim. However the opinion discusses the claim and resolves it in favor of the Plaintiffs in a manner that makes it seem that this is just one of several issues the Judge is disposing of at the same time. If that's the case, it does not seem there was any time after the Judge made her ruling on the privilege question for DOJ to brief the facts. Is it really the case that anytime the government raises a state secrets claim the DOJ has to divulge the secrets in a brief anyway? That just doesn't make sense. Note: I don't think this is the same thing as saying a particular piece of evidence cannot be brought in at trial under some claim of privilege while discussing the evidence in a brief under the assumption the privilege claim might be denied. In that case, the goal is not to preserve a secret but to keep evidence from being considered. You cannot preserve a secret while also discussing it in your brief.
8.21.2006 6:43pm
A.S.:
In the thread from Friday afternoon, a few of us were discussing whether the plaintiffs had made a sufficient showing under FRCP 56 to obtain summary judgement, at least as to the FISA claim.

Under FRCP 56, to obtain summary judgement, the plaintiffs have the burden of providing evidence (evidence that would be admissible in court, not simply "information and belief") sufficient such that they are entitled to a judgment as a matter of law. To my mind, that means that they must provide such evidence for all of the essential elements of their claim. The plaintiffs moving party would have to make a "showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting from Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D.465, 487-88 (1984)). Thus, the plaintiff "must establish beyond peradventure all of the essential elements of the claim ... to warrant judgment in [its] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

I don't think that the plaintiffs have provided evidence that the NSA program involves "electronic surveillance", as defined in 50 USC 1801(f), which seems to me to be an essential element of the FISA claim. Plaintiffs have asserted in their complaint that the NSA program consists of "electronic surveillance". But as far as I can tell from the Statement of Undisputed Facts, that is not supported by any evidence. Indeed, plaintiffs have not even mentioned which of the four prongs of the defintion the program qualifies under. Nor has Judge Taylor told us how she found that the program constitutes electronic surveillance.

The Statement of Facts points to the following:
"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)


That, of course, doesn't explicitly say ANYTHING with regard to whether the the program constitutes "electronic surveillance" under FISA. Supporters of the plaintiffs have asserted that we can infer from Gonzalez's statement that the program must constitute "electronic surveillance" under FISA, thus satisfying the plaintiff's burder under FRCP 56. I disagree. One cannot reasonably think that "no reasonable trier of fact could find other than for the moving party" with respect to the "electronic surveillance" element of the claim when the only evidence supporting the moving party's position on that element is one sentence from a press conference that does not even explicitly mention the that element.

Accordingly, at least as to the FISA claim (which some people, such as Jack Balkin (IIRC), have stated is the STRONGEST of plaintiff's claims), I think the Judge committed plain error; I'd reverse.
8.21.2006 6:45pm
Medis:
David Walser,

First, obviously the DOJ could brief the purely legal issues without discussing facts.

Second, the DOJ could at least dispute facts even if it was unwilling to submit evidence on those issues. Indeed, I think it could dispute facts while refusing to admit or deny them. But as yet, I'm not sure that the DOJ ever disputed things like that the TSP involves surveillance within the scope of FISA. And they may not have disputed such claims simply because those claims are both truth and already supported by the public record, as alleged by the plaintiffs.

Of course, a tricky issue would indeed arise if the DOJ actually disputed one of the plaintiffs' claims but was unwilling to provide record evidence on that issue because it was classified. But there I think Judge Taylor's in camera review would be sufficient. In other words, if she determined the classified material would not aid the government's defense, then the State Secrets issue would be irrelevant, and summary judgment would be appropriate.
8.21.2006 6:58pm
A.S.:
John Herbison wrote:
Any civil litigator knows that, where a summary judgment motion is made and properly supported

The flaw with your statement is that the motion was not properly supported, as I showed above. All of the elements of the claim must be supported, such that the plaintiffs are entitled to a judgment as a matter of law.
8.21.2006 6:58pm
Mark P. (mail):
Medis,

Even in an ordinary case, I disagree with you that the Plaintiffs' assertions of "Undisputed Facts" are an adequate factual basis for a decision on a motion for summary judgment. Fed. R. Civ. P. 56 provides, "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." There's nothing in Rule 56 about one parties' "Statement of Undisputed Facts" as a basis for a grant of summary judgment. So far, there has been no answer, no depositions, no answers to interrogatories, and no Rule 36 admissions. In addition, the plaintiffs did not have any affidavits, based on personal knowledge, describing the United States' program.

But this is not an ordinary case. Here, the defendant has alleged, based on standing and the state-secret doctrine, that it has no obligation to even answer the plaintiffs' allegations. Any attempt to use a local rule requiring "objections" to the plaintiffs' "Statement of Undisputed Facts" to force the defendants to disclose information they they maintain they are not obligated to disclose, aside from violating the language of Rule 56, specifically (and I think, intentionally) denies the defendant of their fundamental, substantive defense.

I know that a lot of civil litigators are terrified to "violate" a local rule (as shown by a number of comments above and in prior posts), but I think that the DOJ's attorneys did everything they could to vindicate their fundamental defense. If they had objected with particularity to the plaintiffs' "Statement of Undisputed Facts" by describing or otherwise disclosing the program, they would have vitiated their client's position. I think that the DoJ made the right call in their public response to the motion for summary judgment (although, frankly, they may have been forthcoming in their in camera filings than I would have advised, I don't know).

I'm sure that many people will consider a failure to respond with particularity to a "Statement of Undisputed Facts" as an "admission" for purposes of Rule 56. I simply disagree, as a matter of interpreting Rule 56 (every item listed, aside from affidavits - which are intentionally described differently, is a mechanism of fact discovery authorized by the Federal Rules of Civil Procedure). The particularities of the United States' basic defense only fortify my belief about the rightness of the United States' tactics and decisions.

Markp
8.21.2006 7:14pm
Medis:
A.S.,

First, you say: "Under FRCP 56, to obtain summary judgement, the plaintiffs have the burden of providing evidence (evidence that would be admissible in court, not simply 'information and belief') sufficient such that they are entitled to a judgment as a matter of law."

That is simply incorrect. As Greenwald points out, the plaintiffs would only have that evidentiary burden if the government actually disputed their allegations. But if an allegation is undisputed, then the plaintiffs need not provide any evidence whatsoever.

Second, you say: "[Paragraph 9 of the SUF], of course, doesn't explicitly say ANYTHING with regard to whether the the program constitutes 'electronic surveillance' under FISA."

You need to read the whole SUF together. For example, the very first paragraph states:

"In the fall of 2001, the President authorized the NSA to launch a secret ELECTRONIC SURVEILLANCE PROGRAM (the 'Program'). [emphasis added]

A. President Bush has stated: 'In the weeks following the terrorist attacks on our Nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaida and related terrorist organizations.' Exh. A at 1881.

B. Attorney General Gonzales has stated: 'The President has authorized a program to engage in electronic surveillance . . . .' Exh. B."

So when Paragraph 9 refers to "the Program", it is referring to the "electronic surveillance program" defined in Paragraph 1.

Finally, you said: "One cannot reasonably think that 'no reasonable trier of fact could find other than for the moving party' with respect to the 'electronic surveillance' element of the claim when the only evidence supporting the moving party's position on that element is one sentence from a press conference that does not even explicitly mention the that element."

Again, none of this matters if the government did not dispute these facts. But in any event, as the plaintiffs' quite in Paragraph 1 reveals, you are wrong about what Gonzales explicitly said. Gonzales first said, "The President has authorized a program to engage in electronic surveillance of a particular kind . . . ." He then said, "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides--requires a court order before engaging in this kind of surveillance . . . ."

So, you are just wrong that Gonzales did not address whether this program involved electronic surveillance within the meaning of FISA, and in the absence of any contrary evidence, this would obviously be sufficient for SJ.
8.21.2006 7:15pm
Just me:
Prof. Kerr -

Sorry if this is a dumb Q., but can you or another reader direct me to any prior post in which you discussed whether the NSA's eavesdropping fits textually under FISA's definition of electronic surveillance to begin with? This is not my field, but I read the plain text of, e.g., 50 U.SC. 1801(f)(2) as covering "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States . . . ."

Other subsections of 1801(f) seem to similarly focus on whether the U.S. end of the conversation was targeted [(f)(1)] and so on. So, IF the locus of surveillance is abroad, e.g, a bug directly in the phone hardware in Tora Bora, then it's excluded, no? So then isn't the issue (1) what the facts really are, and (2) how those facts translate into the meaning of "where" it occurs (e.g., not sure how satellite pickups are measured - where it's aimed? what land mass the satellite lurks over?)

If there's a simple answer that I missed in a months-old post, great. Otherwise, it seems to me that this is an open question, and one that needs to be resolved before deciding that "FISA was violated."

But again, I know little here.
8.21.2006 7:20pm
Medis:
Mark P.,

First, I note that the SUF was supported by Exhibits. Would you say that those Exhibits also did not comply with Rule 56(c)? Because I have never heard of a court refusing to accept documentary evidence attached to a Motion for Summary Judgment simply because it did not specifically appear on the 56(c) list.

Second, I agree that the government should not have to "object with particularity" to any particular factual claim, if by that you mean they would have to specifically confirm or deny it. Rather, I think they could dispute it while refusing to confirm or deny, which would operate as a denial.

But do you have any evidence that they disputed these claims at all? Again, it seems to me entirely possible that the government did not dispute them simply because they were true.
8.21.2006 7:27pm
Mark Field (mail):

It seems, as Orin originally suggested, this claim of privilege should be resolved before DOJ was required to brief the facts.


In essence, it was. The judge denied the government's motion to stay and ordered it to brief the ACLU's MSJ. That left the government in the all or nothing posture.


Is it really the case that anytime the government raises a state secrets claim the DOJ has to divulge the secrets in a brief anyway? That just doesn't make sense.


What happens in such a case is that the government has to choose. It can give up the state secrets claim and litigate the merits, or it can persist in asserting the privilege and, in practical effect, default the merits. That leaves the privilege claim up to the appellate court. This is a common dilemma in privilege cases.
8.21.2006 7:30pm
Nunzio (mail):
Although the gov't didn't dispute Plaintiff's assertion of undisputed facts, the judge should not have deemed those facts admitted unless they were supported by "competent evidence." A lot of Plaintiff's facts are based on newspaper articles, which are considered hearsay. Just b/c the gov't didn't dispute them doesn't mean the judge should deem them admitted.

It seems like the judge took judicial notice of the NSA program based on wide-spread media reports. Whether this was acceptable or not, I'm not sure. It wouldn't have hurt the gov't to point out that much of Plaintiff's facts were based on hearsay, though.
8.21.2006 7:32pm
A.S.:
Medis writes:
That is simply incorrect. As Greenwald points out, the plaintiffs would only have that evidentiary burden if the government actually disputed their allegations. But if an allegation is undisputed, then the plaintiffs need not provide any evidence whatsoever.


No, you are wrong.

Under FRCP 56, the moving party, if it has the burden of proof at trial (which the plaitiffs here would have), must adduce evidence for each of the essential elements of the claim, such that it would be entitled to judgement as a matter of law. It is only if the moving party did so that the burden shifts to the non-moving party to adduce some evidence to show that there is a geniune issue of material fact. I cited caselaw above.
8.21.2006 7:42pm
Mark P. (mail):
Medis,

Courts reject unauthenticated "Exhibits" to motions for summary judgment all the time. (Unfortunately, I've seen way too many motions supported by unauthenticated, inadmissable "exhibits." Worse I was opposed to an attorney who, AT TRIAL, was simply unable to authenticate a single document under the Rules of Evidence, even though he tried to introduce many. Fortunately, the district judge was strong enough to sustain our objections on foundation grounds until the attorney simply gave up and lost the case. The appeal was quite sad.) The question is simply whether the "exhibit" is an exhibit to a deposition, properly authenticated, or whether it is authenticated by some other method (as by authenticating affidavit).

Here, the DoJ's attorneys have an ethical duty not to dispute facts that they know are true. But such an act would deny them their fundamental defense, as well as pose important Separation of Powers issues. I have no reason to believe that the DoJ confirmed or denied the allegations contained in the plaintiffs' "Statement of Undisputed Facts."

Markp
8.21.2006 7:44pm
Glenn Greenwald:

Under FRCP 56, the moving party, if it has the burden of proof at trial (which the plaitiffs here would have), must adduce evidence for each of the essential elements of the claim, such that it would be entitled to judgement as a matter of law. It is only if the moving party did so that the burden shifts to the non-moving party to adduce some evidence to show that there is a geniune issue of material fact.


This is true. But the plaintiffs plainly submitted competent evidence to support the claim that the administration's eavesdropping is within the scope of FISA (including - but by means only - Gonzales' admission, which would obviously be admissible as a party admission against interest). There was evidence in the record that the eavesdropping is within the scope of FISA, which means that the DoJ's failure to dispute it rendered that an undisputed fact.

In any event, the DoJ never made any of these arguments. They never claimed that plaintiffs had failed to proffer sufficient evidence on Summary Judgment on this issue, so the idea that the court should have denied Summary Judgment based on an argument the DoJ never made is an unrealistic expectation, to put it mildly, and may not even be considered by the Sixth Circuit given that it was never raised below.
8.21.2006 7:48pm
Just an Observer:
Just a little meta-perspective.

1) As Medis sensibly notes above, the government may have chosen not to dispute certain basic facts simply because they are true. (A novel concept for many lawyers to assimilate, but reasonable for humans.)

2) It is even possible that DOJ lawyers -- in contrast to almost every other strategic decision in this controversy -- acted on ethical motivation to make this tacit admission of this much of the truth in order to facilitate some level of judicial review. IMHO, the President has always had a good-faith duty to do that, and he should have simply directed his lawyers to stipulate these facts. Passive non-denial is the next best thing.

3) Remember, the President decided as a political matter the day after the NYT disclosure not just to confirm the program but to announce it with much fanfare. It has been proudly featured as a centerpiece of his presidency. It would be politically silly to have his lawyers deny in court what is trumpeted from the White House podium with great hubris.

4) I note that while sympathetic advocates of the President here raise this procedural question, no one at the Justice Department has done so, at least on the record. The real indication will come when the case gets to the Sixth Circuit.
8.21.2006 8:02pm
A.S.:
But the plaintiffs plainly submitted competent evidence to support the claim that the administration's eavesdropping is within the scope of FISA (including - but by means only - Gonzales' admission, which would obviously be admissible as a party admission against interest).

As I said above, I think that's wrong. One must adduce evidence such that "no reasonable trier of fact could find other than for the moving party" with respect to each element. Gonzales's one sentence from a press conference that does not even explicitly mention the element can't sustain that burden.

In addition, Medis mentions above the SUF states that Gonzales once described the program as "electronic surveillance". I don't think that sheds any light whatsoever onto the question of whether the program is "electronic surveillance" as defined in the statute.

So, nowhere do plaintiffs provide sufficient support to meet their burden with respect to the "electronic surveillance" element.
8.21.2006 8:02pm
Medis:
A.S.,

I read Calderone and Fontenot, and neither deals with a situation in which the opposing party failed to dispute the moving party's claim. Rather, Calderone dealt with a case where the DCT erroneously placed the burden of proof on the opposing party, and Fontenot dealt with a case in which the defendant moved for summary judgment on the ground that the plaintiff had no evidence for an essential element. But in each of these cases, the moving and nonmoving parties did in fact dispute the relevant facts.

Mark P.,

That is a different argument. Which of the Exhibits do you think could not be authenticated? Because I would note, for example, that Exhibit B, containing Gonzales' statements, appears to be just a copy of an official White House Press Release.
8.21.2006 8:11pm
Medis:
A.S.,
YOu say: "I don't think that sheds any light whatsoever onto the question of whether the program is 'electronic surveillance' as defined in the statute."

I'm sorry, but that makes no sense. As I noted above, in the press conference Gonzales first said, "The President has authorized a program to engage in electronic surveillance of a particular kind . . . ." He then said, "Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides--requires a court order before engaging in this kind of surveillance . . . ."

You really think this "sheds no light" on whether the Program involved electronic surveillance within the meaning of FISA? Really really? Because that is just silly.
8.21.2006 8:15pm
Nunzio (mail):
Here's the ACLU's Statement of Unopposed Facts



Here's the Exhibits backing up those facts.

8.21.2006 8:22pm
Mark Field (mail):
Nunzio, your links didn't work.
8.21.2006 8:25pm
RHD (mail):
I can't tell whether the Gov't's defense was deficient, although that seems unlikely.

1. As for the relevance of pre-trial discovery, from the Court's opinion it appears that the Gov't's position was that all non-public information about the NSA intercept program was covered by the state secrets doctrine. Judge Taylor held that the plaintiffs' case was not barred by the states secrets doctrine as to the NSA intercept program because disclosures and admissions already made by the Gov't were a sufficient factual basis on which it was fair to adjudicate the merits. But the court's reasoning, and her decision upholding the state secrets doctrine with respect to claims attacking the "data mining" program, seem to require the conclusion that the state secrets doctrine barred any discovery that plaintiffs might have demanded from the Gov't that went beyond the Gov't's public statements. So I don't see how the theoretical availability of discovery in the routine civil case has any applicability here, given the "state secrets" bar to the plaintiffs' ability to demand any information about these programs from the Gov't. If there was any relevant discovery not related to these programs, or anything else arguably constituting a state secret, that discovery could, of course, be taken. But it's hard to see what that discovery would have consisted of -- plaintiffs presumably had all of the public statements from Gov't officials they thought they needed, and nothing in the state secrets doctrine prevented the Gov't from calling the District Court's attention to other public statements by Gov't officials that the Gov't thought might qualify or even contradict whatever the plaintiffs were relying on. So the availability of discovery from the Gov't seems to have been a non-issue.

2. An earlier post suggested that the Gov't had suggested, with what degree of specificity I don't know, that the motion should be denied or held in abeyance under Rule 56(f) pending the Gov't's taking of some discovery of plaintiffs. Again, it is hard to imagine what they discovery would have been, other than an inquiry into the foreign clients (for the lawyer-plaintiffs) or contacts (for the journalist or professor plaintiffs) that plaintiffs say they had lost because of the NSA intercept program. But for the reasons in "1" above, even with that information, it is hard to see how the Gov't could confirm or deny whether any communications involving those foreign contacts had been intercepted, without disclosing state secrets and methods/techniques of surveillance.

3. For both reasons, the general reference to the lack of discovery in this case strikes me as a distraction. The real issue under the state secrets doctrine was whether it was fair to allow the case to reach the merits in view of the impossibility of any discovery on the central issues. The cases cited by Judge Taylor say that, if it would be unfair to the Gov't to force it to defend on the merits without disclosing state secrets, the case cannot proceed. I don't think the general reference to statements in the public record by Gov't officials -- which is what the District Court and the plaintiffs relied on -- is sufficient to respond to that point. Instead, it turns on whether the necessity of protecting state secrets precludes the Gov't from defending fairly. Thus I think the dispositive question was whether any information that the Gov't might have been able to offer but for the requirement to protect state secrets could have required a different result, or whether the information in the public record was sufficient and conclusive of the legal issues on the merits no matter what additional information the Gov't couldn't present. I didn't see any analysis of that issue in the Court's opinion -- just an assertion that it was so.

4. None of these factual difficulties would normally excuse a failure by the Gov't to brief the legal issues. In some case where absolute or qualified immunity is in play, the Gov't may properly insist on litigating the immunity issues and defer briefing of other issues (if any are raised) by a plaintiff. I don't know whether any court has treated the state secrets doctrine in that way. Assuming that there was no case law on that point, there was nothing (such as a need to protect state secrets) preventing the Gov't from briefing the legal questions raised by the statutory or constitutional issues. DOJ has already issued fairly detailed legal defenses of the NSA program, based on the AUMF resolution in 2002, along with DOJ's views on various constitutional issues implicated by the case. Indeed, one of the more frequent criticisms of the District Court's opinion is how it avoids any engagement with all of those issues particularly in light of the extensive analysis they have received from all perspectives on the Internet and elsewhere. From the District Court's discussion, it was clear that the Gov't had briefed the standing issues as well as the state secrets issues. Presumably, they also said something about the merits.

5. Even if the Gov't failed to address some or all of the legal issues on the merits, I don't think that will make any difference on appeal (and it seems quite clear it would have made none in Judge Taylor's court). The general rule that an appeals court will not consider issues or arguments not raised below is prudential not jurisdictional, and appellate courts often will "rule on issues not raised in the district court ... when the issues are solely legal ones not requiring additional factfinding." Westinghouse Credit Corp. v. D'Urso, (2d Cir. June 8, 2004). It seems quite likely to me that this case will be sufficiently important for that rule to apply, particularly since the state secrets doctrine bars any real inquiry into the underlying facts anyway.
8.21.2006 8:35pm
Nunzio (mail):
Here's the other link. Sorry about the messup.


http://www.aclu.org/pdfs/nsa_exhibits.pdf
8.21.2006 8:36pm
zooba:
Jack Carver:
You're wrong when you say "The DEFENSE did not raise any of these alleged issues. The Judge is NOT the defense attorney. She is not required or even entitled to defend the case for the government."

The court is duty bound to determine if it has subject matter jurisdiction sua sponte if it appears, from the face of the complaint, that it lacks it. Article III standing is a requirement for subject matter jurisdiciton. It is an abuse of discretion to issue a dispositive order in favor of plaintiff without addressing standing when it appears standing is lacking. The appropriate reaction would have been to deny the plaintiffs' motion for summary judgment as premature and issue an order to show cause why the case shouldn't be dismissed for lack of jurisdiction.
8.21.2006 8:49pm
lsu (mail):
There is no such thing as an "admission against interest" under the Federal Rules of Evidence. There are "admissions" and there are "statements against interest." Gonzales' statement would qualify as an admission by the United States because it was made by one with apparent (and actual) authority to speak for the U.S. I write this only to appease my evidence professor from years ago, who would have had a fit if he heard someone replying to a hearsay objection that a statement was an "admission against interest."
8.22.2006 12:02am
Lev:
NATIONAL SECURITY AGENCY / CENTRAL
SECURITY SERVICE; and LIEUTENANT
GENERAL KEITH B. ALEXANDER, in his
official capacity as Director of the National
Security Agency and Chief of the Central
Security Service,
Defendants.

801 Statements which are not hearsay.

(d)(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.


I suppose, more particularly, that since DoJ attys, Asst AG's, signed at least Government's Motion to Dismiss (5/26/2006) it would be considered that the DoJ headed by Gonzales was representing the NSA and Gonzales' statements would be considered to fall under C or D.

I wonder if the same result would have occured if NSA attys did the representing with retained outside counsel.
8.22.2006 2:51am
KMAJ (mail):
Just a question from someone without a legal background. Wouldn't the fact that the government offered up the secrets option be a denial, not an agreement, of the plaintiffs 'alleged' facts ? Wasn't the government, in effect, saying they disputed the plaintiffs presentation, but could not present a defense because of the sensitive/classified nature of the information necessary to rebut ? Logic would seem to make that extension.
8.22.2006 3:02am
Lev:
http://www.aclu.org/safefree/nsaspying/25971lgl20060526.html Government's Motion to Dismiss (5/26/2006)


and in the declarations accompanying this motion,
including those submitted for in camera, ex parte review. See Defendants’ Notice of Lodging of
In Camera, Ex Parte Materials.


Anyone have any idea of what those Declarations are?
8.22.2006 3:31am
Lev:
KMAJ

Logically, that could be the case, but logic and the law....

In any event, the problem is this:

Rule 56. Summary Judgment

(e) Form of Affidavits; Further Testimony; Defense Required.

Supporting and opposing affidavits shall be 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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. 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. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.


The claim in a motion for summary judgment motion is: We don't really need a trial, because there aren't any facts for a jury, the factfinder, to find - there are none in dispute, and here they all are. That is what the ACLU filed in its exhibits and affidavits. And, because there are no contested facts, you the judge can decide the case right now.

The only way to avoid the summary judgment, is to present similar affidavits and evidence that show: well, yes we really do need a trial because the plaintiff's "facts" are not established as uncontested facts at all. And, therefore, you the judge cannot decide the case right now.

If the government's filings did not have affidavits etc. of the sort required by the rule, then the ACLU's facts are the only facts, and are uncontested.

At that point, the government must argue that: even if the ACLU's facts are all true, they do not establish all the elements required for the ACLU to win - the facts are uncontested, but they aren't the required facts and/or there aren't enough of them. Further, the government argues that ACLU cannot get all the required facts and/or enough of them, because the facts the ACLU needs are state secrets - the problem is, the summary judgment rule requires


"response, by affidavits or as otherwise provided in this rule, must set forth specific facts".


and arguing that the ACLU doesn't have enough facts or the right ones is not "affidavits" about facts, it is attorney's argument about the law as applied to uncontested facts.

Obviously, if the Judge feels they are the right facts and there are enough of them and the ACLU doesn't need any secret stuff, the gov't is in a heap of trouble.
8.22.2006 3:50am
Lev:
I wonder if this is what was in the Declarations:

Rule 56. Summary Judgment

(f) When Affidavits are Unavailable.

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
8.22.2006 4:00am
Public_Defender (mail):
If the Sixth Circuit agrees with the result but not the reasoning, they could do a road map reversal. That is, reverse, but give the trial judge a road map for how to reach the right result the right way.

I hate it when I get "wins" like that.
8.22.2006 8:54am
Medis:
KMAJ,

You say: "Wouldn't the fact that the government offered up the secrets option be a denial, not an agreement, of the plaintiffs 'alleged' facts?"

That doesn't follow. We don't know how the government's classified material purportedly supported their defense, and rebutting the plaintiff's alleged facts is not the only possibility. For example, the government may have asserted some affirmative defense, which would not require rebutting the plaintiff's facts, and thus the classified material may have purportedly supported that affirmative defense.

Of course, it is also entirely possible that the government's classified material wasn't really relevant at all. This is what Judge Taylor found:

"[T]he 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."

Personally, I suspect, based on the government's publc arguments and Judge Taylor's opinion, that the classified material was mostly if not entirely not directly relevant to the case. Rather, I suspect it was mostly general information about the government's assessment of the magnitude and nature of the terrorist threat, and maybe various government assessments about how the TSP would be helpful.

Note, for example, that part or all of these sections were redacted from the fact section of the government's Motion to Dismiss or for Summary Judgment. The government then later argues, "The question presented here is whether the President has acted within his constitutional and statutory authority in establishing the TSP to meet the al Qaeda threat, and whether, in the face of that threat, application of FISA to the President's specific actions would present serious constitutional concerns."

The government then again discusses "The Continuing al Qaeda Threat" (with portions redacted). It then argues, "The nature of this continuing threat underscores both the compelling need for the TSP and effective means it provides to detect the al Qaeda threat. . . . Further information about this threat cannot be disclosed, however, and to decided whether the President acted within his power without a full understanding of the exigency of the circumstances at issue would be to unmoor his actions from the reasons for them and decide the case in a vacuum."

And so on, with the same sorts of arguments being made in the constitutional sections as well. Basically, this all amounts to one overarching affirmative defense: that due to these "exigent circumstances", the President had the authority to bypass FISA, ordinary Fourth Amendment requirements, and so on. So, to the extent it was offered in support of this argument, the government's classified material need not have rebutted any specific factual claims of the plaintiffs.
8.22.2006 10:10am
Larry Fafarman (mail) (www):
The opening post said --
In other words, DOJ said, "we're not going to even respond to the merits of the issues in this suit because it shouldn't go forward under the state secrets privilege, and that has to be resolved first."

In general, when arguing a case before a court, you are not supposed to ignore one issue (the "merits" in this case) in the hope of winning the case on the basis of another issue (the "state secrets privilege" in this case). The only time that you can safely ignore some of the issues is when moving for dismissal under Rule 12(b) of the Federal Rules of Civil Procedure. Rule 12(b) has such grounds for dismissal as "lack of jurisdiction over the subject matter" and "failure to state a claim upon which relief can be granted." However, Rule 12(b) is apparently not involved here.
8.22.2006 11:42am
Bart (mail):
Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.

The foundation of the well established state secrets privilege is that the government has no duty to deny or confirm any facts which are state secrets unless and until a court finds that the state secrets privilege does not apply. Hepting v. AT&T Corp., Case C-06-672 VRW *9, 14-15 (ND Cal. July 20, 2006)(citing Halkin v. Helms, 598 F.2d 1, 5 (DC Cir. 1978 ); El-Masri v. Tenet, 2006 WL 1391390 *5 (ED Va. May 12, 2006)).

Therefore, by necessity, the courts must rule first on the state secrets privilege alone before granting plaintiffs any relief on a substantive issue requiring a fact record. You cannot even determine standing in these cases until you have a fact record.

Every other court which has ruled on one of these fishing expedition cases has taken the state secrets privilege issue first and either dismissed the claim or allowed discovery to proceed to again test the state secrets privilege at that stage. None have ruled on substantive issues requiring a fact record as has Judge Talyor. Hepting v. AT&T Corp., Case C-06-672 VRW (ND Cal. July 20, 2006); El-Masri v. Tenet, 2006 WL 1391390 *5 (ED Va. May 12, 2006).
8.22.2006 12:35pm
Medis:
Bart,

Those cases operate on the assumption that the "secret" material will either be necessary to the plaintiff's case or relevant to the government's defense. But if instead the plaintiff does not need access to the secret material, and if the secret material will not aid the government's defense, then a ruling on the States Secret Privilege is not logically prior to an adjudication on the merits. In other words, even if the privilege did apply to such material, if its absence from the proceedings will not prevent an adjudication on the merits, then that adjudication on the merits can proceed without a prior decision on the States Secrets issue.
8.22.2006 1:06pm
Just an Observer:
Bart,

What "fishing expedition?" The plaintiff was not seeking discovery of any secrets, but based its claim directly on the undisputed facts on the public record. Since those facts remained undisputed, the court found they established a prima facie case and granted summary judgment.

The Hepting case you cite is fundamentally different because there, there plaintiffs are seeking to discover evidence the government claims to be covered by the privilege.
8.22.2006 1:07pm
Bart (mail):
JAO:

The ACLU case like the other cases started as fishing expeditions hoping that one judge would order discovery. The ACLU's motion for summary judgment was a change in tactics after the El-Masri decision to dismiss the entire complaint based on the state secrets privilege.

The lack of factual basis for the nearly every part of Judge Taylor's opinion has been well documented by others.
8.22.2006 1:28pm
Medis:
Bart,

You say: "The ACLU's motion for summary judgment was a change in tactics after the El-Masri decision to dismiss the entire complaint based on the state secrets privilege."

The Complaint was filed on 1/17/2006. The plaintiffs filed their Motion for Partial Summary Judgment on 3/9/2006. El-Masri was not decided until 5/12/2006.

Sometimes a cigar is just a cigar. In this case, I think the plaintiffs were actually after the relief they sought and got--a declaratory judgment that the Program is unlawful and an injunction terminating it.
8.22.2006 1:49pm
Bart (mail):
Here are the two allegedly "undisputed" facts submitted by ACLU which are problematic and clearly insufficient to support the Court's ruling:

3. Under the Program, the NSA intercepts communications of people inside the United States.

Nothing admitted to by the government even implies that the NSA Program was surveilling these plaintiffs, unless the plaintiff's are arguing that they are agents of al Qeada.

9. 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.” Exh. B.

This is a vague opinion of law by the AG given in response to a question not before the Court, not an admission of fact as to the details of the program with which the Court could determine herself as a matter of law if the program violated FISA.

At no point in her opinion did Judge Taylor apply the statutory language of FISA to any undisputed facts concerning the NSA Program. Rather, Judge Taylor simply assumed that a FISA violation was undisputed because the government would not admit or deny any fact pending a ruling on the states secrets privilege.
8.22.2006 2:00pm
Bart (mail):
Medis:

I stand corrected concerning the El Masri decision.
8.22.2006 2:02pm
Medis:
Bart,

As I suggested elsewhere, the AG's statements are actually an application of law to fact, and thus have both legal and factual content. And again, I am unaware of any evidence that the government has ever argued that the AG's statement was inaccurate.
8.22.2006 3:10pm
Observer (mail):
I do not practice law in this area and claim no expertise in it. But I cannot believe that the courts at the end of the day (i.e., the Supreme Court) will countenance a rule that requires the Government to disclose information that it believes is protected by the state secrets doctrine or forfeit a case if the state secrets doctrine is determined to be inapplicable. Whatever the rule may be with respect to other privilege claims, I can safely predict that that the Court will not close its eyes to the consequences for national security of putting the Government to such a choice every time some special interest group gins up a lawsuit.
8.22.2006 3:27pm
Bart (mail):
Medis:

The AG may have been thinking about some classified facts concerning the program when he made that comment, but the comment itself is a personal opinion of law without any description at all of the facts concerning NSA Program.

In order to find the NSA Program violates FISA as a matter of law, the judge must possess a fact record showing that some or all of the plaintiffs are being surveilled by the program as well as other facts on how the program operates. Then, the judge must apply the actual statute to the factual record.

Of course, we are completely placing to the side the determinative issue of whether Congress even has the Article I authority to regulate the President's long recognized Article II power to direct and conduct intelligence gathering against foreign agents in the US.

I found it interesting that the judge claimed that she had reviewed the top secret ex parte submissions presumably describing the NSA Program to some degree and did not even hint that those submissions indicated a violation of FISA.
8.22.2006 3:41pm
eddie (mail):
Bart:

If you are suing me in civil court for wrongully assaulting you and my lawyer speaks to the press and says, "My client, in a fit of justifiable rage, wrongfully hit Bart," do you think I could dismiss this admission by saying that it was a "vague opinion of law", and not at least propose what my justification was?
8.22.2006 3:48pm
Medis:
Observer,

You appear to be assuming there is something about the secret materials which would actually help the government's defense. I don't see any reason to assume that, particularly in light of Judge Taylor's finding to the contrary. In other words, they aren't really being forced to choose between revealing a secret and forfeiting a case if the secret facts wouldn't help them win the case.

Bart,

Again, the AG's statement was an application of law to fact--specifically, an application of FISA to the facts of the program. You are right that he didn't describe the program in detail, but a detailed description of the program is not necessary for the adjudication of this lawsuit.

In general, you seem to be operating under the assumption that the government is actually contesting this fact. I have yet to see any evidence of that, and as we discussed above, the simplest explanation of all this would be that the AG was telling the truth, and the government has not tried to take it back.

Finally, I don't know why you are calling it his "personal opinion", but maybe it is worth remembering that he is the Attorney General of the United States, and that he was speaking to the public of the United States about the program.
8.22.2006 5:07pm
Bart (mail):
eddie:

Unless I have personal knowledge of a fact I gained outside of the attorney client privilege, what I say in public about that fact is not competent admissible evidence.

However, you do raise an interesting issue about whether the AG is considered to be an agent of the government for the purposes of the admission exception to the hearsay exception.

Furthermore, if the AG did make a factual statement out of court concerning the operation of the NSA program, but he has no personal knowledge of that fact, you may have a double hearsay issue depending on who told him about the NSA Program.
8.22.2006 5:15pm
JamesB:
Bart:

We have no way of knowing what information the Judge was given in private, however based on her statement, the government didn’t even make the argument that what the AG said was hearsay. If they had that would have been evidence that would have forced her to dismiss the case due to secrecy.
8.22.2006 5:28pm
Bart (mail):
James:

Under the state secrets privilege, the government does not have to admit or deny any fact. Therefore, my point was that Judge Taylor, like the two judges who ruled on similar cases before her, should have restricted her ruling to the state secrets privilege and either dismissed the case or allowed the plaintiffs to make discovery requests to review under the state secrets privilege.

I strongly suspect that Judge Taylor took this radical step of ruling on standing and the substantive claims without a proper fact record because she knew the case was likely to be taken away from her in a consolidation of all of these cases.
8.22.2006 5:39pm
Medis:
There is no serious question about the AG's statements being admissible.

First, as Lev points out, his statements would not be hearsay under at least two provisions of 801:

"(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."

Also, there is no hearsay-on-hearsay problem because the AG was not conveying a statement made by someone else.

Finally, if someone wanted to actually call the AG as a witness (as opposed to admitting these statements as evidence), then they would have to establish his personal knowledge, which could be done by his own testimony. Of course, he probably does have personal knowledge of the nature of the Program, so I doubt that would be a problem.
8.22.2006 5:46pm
Scrivener:
By moving for SJ the plaintiffs say "we don't need further discovery, we already got enough admissible evidence to win".


The government could fight SJ by arguing against admissibility of plaintiffs' evidence without either affirming or denying the truthfulness of it; AFAIK, the government chose not to do so.

For me it's enough to conclude that the plaintiffs' evidence is admissible, true or not.
8.22.2006 6:06pm
srp (mail):
The thing that's weird about this case is that the plaintiffs say they're being harmed because their communication with terrorist suspects is chilled by the prospect of warrantless surveillance. But if these interlocutors are actually terrorist suspects, then they could be surveilled with warrants anyway, in which case they should still be chilled. So the existence of the TSP has zero relevance to the plaintiffs' ability to communicate in a cozy and non-chilly fashion.

So how can there be standing to sue? Where is the damage and how would cutting off the TSP reduce that damage?
8.22.2006 6:18pm
Just an Observer:
If I might return to the top-level question Orin posed, which was: "What will the Sixth Circuit do on appeal in the NSA surveillance case?"

One question that I think is central is the matter of what happens on appeal with the state-secrets claim. We don't really know whether the secret material is factual, legal or both.

Whatever the character of this material, Judge Taylor inspected it and rejected the government's assertion that it was necessary to defend the case. She even rebuked the government by calling that assertion "disingenuous and without merit." The context of that remark related to legal matters, not factual, but we don't really know what kind of stuff the secret stuff is.

So, assuming that the government renews its state-secrets argument on appeal, does the Sixth Circuit inspect the secret material and make its own determination, or accept the trial court's finding?

I am asking that question, not answering it.
8.22.2006 6:19pm
Just an Observer:
JamesB: We have no way of knowing what information the Judge was given in private, however based on her statement, the government didn’t even make the argument that what the AG said was hearsay. If they had that would have been evidence that would have forced her to dismiss the case due to secrecy.

I would reason this a little differently: An argument that what the AG said was hearsay could not itself be classified a secret. And since the judge affirmed that the material she inspected was properly a secret, this could not be it.
8.22.2006 6:33pm
A.S.:
No, Scrivener, you also must conclude that the plaintiffs' evidence is sufficient as to each of the elements of the claim such that plaintiffs would be entitled to judgement as a matter of law.

There are several elements of the plaintiffs' FISA claim for which I haven't seen any evidence at all adduced. Specifically, plaintiffs have not adduced any evidence to show that the NSA program constitutes "electronic surveillance" as defined in FISA. The evidence that the plaintiffs claim support that element - Gonzales's statement in his press conference - does not seem to me to be appropriate evidence to support a summary judgement motion.

Let's take an example: let's say that there is a prosecution of a person (let's say Alberto Gonzales) for burglary, a crime for which there are several elements (e.g., (1) the taking and carrying away, (2) of property of another, (3) by force or fear, and (4) with the intent to permanently deprive the owner of the property). Prosecutors produce at trial the following, as the totality of their evidence: a statement by Gonzales as follows: "I committed burglary". That is, other than that statement, the prosecutors do not produce any evidence that anything was taken away; that anything taken belonged to someone else; that there was any force or fear involved in taking anything; or that the defendant had the requisite intent to take. Sufficient evidence for a jury to convict, if the jury believes the statement? I don't think so. Prosecutors have not produced evidence as to all the elements of the crime, even though one may may argue (as supporters of Judge Taylor's opinion seem to be) that the satisfaction of all the elements may be inferred from the statement.
8.22.2006 6:37pm
Medis:
Bart,

You write: "Under the state secrets privilege, the government does not have to admit or deny any fact."

First, that is only true if admitting or denying the fact would actually reveal something secret. And obviously, once the AG has stated something in a press conference, it isn't much of a secret anymore.

Second, it doesn't matter if the government is in fact keeping something secret if that something is not necessary to the plaintiffs and not helpful to the government.
8.22.2006 6:39pm
Anderson (mail) (www):
does the Sixth Circuit inspect the secret material and make its own determination, or accept the trial court's finding?

That is a really interesting question. I would think that the district court ought to enter secret, sealed findings that would be made available only to the feds and the appellate courts, for purposes of review.

The analogy would be to in-camera inspections of privileged documents, as where att'y-client privilege is claimed.

If she didn't do so, that could be a basis for reversal &remand.
8.22.2006 6:40pm
PRIM:
Reading these comments almost makes me wish I had heeded my Mother's plea to go to seminary instead of law school. There is some brilliant argument and advocacy on display here, but the longer the thread continues, the smaller the head of the pin becomes. How about stepping back a bit, taking a deep breath, and looking at this case from the standpoint of just good common sense.

Judge Taylor's single ruling not only hastily brushed aside serious issues over standing, the state secrets privilege and FISA, but it also held that the plaintiff's first and fourth amendment rights have been violated by TSP. One can argue long and delicately over the standards for summary judgment, or over whether DOJ gave up the game by not briefing and disclosing the very state secrets it sought to keep secret (a preposterous position if you stop and think about it). But it was simply not possible for the court to find that the plaintiffs met their burden to show that they had been subjected to unreasonable searches or infringement of their free speech rights. There was simply no evidence presented. None.

In specific reply to Professor Kerr's initial question, the 6th Circuit panel's greatest challenge will be to restrain itself from rising to each morsel of this sumptuous feast of bait scattered over scene by Judge Taylor.
8.22.2006 6:45pm
Anderson (mail) (www):
Reading these comments almost makes me wish I had heeded my Mother's plea to go to seminary instead of law school.

Reading your comment, perhaps you should indeed have listened to your mother?
8.22.2006 7:03pm
Scrivener:
A.S.,

Whether the evidence is admissible and whether the evidence is sufficient are separate questions.

I was talking about the admissibility, not the sufficiency.

And I don't see how me writing "enough evidence to win" on SJ may be read to mean anything different from "sufficient evidence to win" on SJ, as your reply seems to suggest.
8.22.2006 7:05pm
Medis:
A.S.,

As an aside, one should be careful about using criminal analogies for civil matters.

Anyway, in your analogy, one obvious thing to note is that Gonzales' statement would certainly be evidence.

Second, your analogy is off in part because the mere fact that the program involved electronic surveillance within the meaning of FISA doea not make it prohibited by FISA, or in general unlawful. In that sense, it would be more like Gonzales saying, "Yes, I took 'property' within the meaning of the burglarly statute, but I refuse to tell you exactly what property I took."

Further, your analogy is incomplete because we don't know what the defense actually argues. I guess he must have pled not guilty, because otherwise there would be no trial. But is he actually contesting his prior claim? What if instead he offers an affirmative defense: "Yes, I commited burglary, but I was justified in doing so because I really needed the money".

That, in fact, is where we seem to be: to my knowledge, the government never argued that the Program did not involve electronic surveillance within the meaning of FISA, but rather they have argued the government nonetheless was justified in conducting the surveillance without complying with FISA. In such a case, I don't think the plaintiffs have to go about proving facts the government does not dispute.
8.22.2006 7:16pm
Dan Hamilton:
Even the ACLU's statment showed that the Governments arguement is that FISA doesn't cover what NSA is doing.

The Governments arguement is that the Presidents War Powers trump FISA for Foriegn Inteligence gathering.

They CAN'T arguee that "The Program" isn't covered by FISA because it is not "electronic surveillance" as defined with in FISA because that would mean that the Presidents War Powers were controlled of FISA.

That is why they aren't argueeing FISA. Their arguement is that in this case FISA doesn't matter. The Presidents War Powers on Foreign Intelegence is the only thing that matters.

The ACLU statement of undisputed facts supports this.
"9. 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.” Exh. B."

3 of the 4 definitions of Electronic surveillance has "and a warrant would be required for law enforcement purposes". If the NSA program is not using a WIRE connection the last definition doesn't fit. So the Electronic surveillance is authorized by statute or by Congress under warrantless border searches.

So what Attorney General Gonzales said means NOTHING about weither of not the NSA program is "Electronic surveillance" under FISA's definitions.

The Government didn't argue about it because they don't wish to and can't say that FISA control what the NSA is doing.

The Question is - Which has control a Law passed by Congress (FISA) or the Presidents War Powers for Foreign Intelligence.

Taylor's opinion did not address this. The Sixth MIGHT address this. The SC had better address this.

Also from the ACLU's statement
"A. President Bush has stated: “In the weeks following the terrorist attacks on our Nation, I authorized the National Security Agency, consistent with U.S. law
and the Constitution,
to intercept the international communications of people with known links to Al Qaida and related terrorist organizations.” Exh. A at 1881."

The SC may find that the President was wrong in thinking and being advised that his War Powers did not cover this.
ONLY the SC can decide this.
8.22.2006 7:19pm
Medis:
PRIM,

Once again, contrary to Judge Taylor's finding, you seem to be assuming the secret material would actually aid the government's defense.
8.22.2006 7:19pm
Medis:
Dan,

As I have observed before, noting that the surveillance wasn't electronic surveillance within the meaning of FISA would not be a concession that FISA could constitutionally prohibit such surveillance. Rather, it would simply moot that issue.

Also, in order for a court to pass on that argument (that the President has Article II "war powers" which trump FISA), the government will actually have to present that argument in court. I'm not sure that they have.
8.22.2006 7:24pm
Bart (mail):
Medis:

Again, the AG's statement was an application of law to fact--specifically, an application of FISA to the facts of the program. You are right that he didn't describe the program in detail, but a detailed description of the program is not necessary for the adjudication of this lawsuit.

In the statement to which I cited, the AG did not make a single fact statement describing the program.

In other statements to which ACLU cited, there is not close to enough information to rule on whether a violation of FISA occurred for the purposes of this lawsuit. For example, you need facts to determine whether the NSA program surveilled the communications of plaintiffs, whether the targets of that surveillance qualify as a US person under the definition used by FISA, whether any of these targets have a reasonable expectation of privacy for international calls in and out of the United States, what communications were surveilled and when that surveillance occurred.

If a prosecutor obtained a criminal indictment on the thin gruel ACLU presented, I am confident I could get it dismissed by most courts during a preliminary hearing.

Finally, I don't know why you are calling it his "personal opinion", but maybe it is worth remembering that he is the Attorney General of the United States, and that he was speaking to the public of the United States about the program.

The AG gave an opinion of law which has no controlling effect on the Court's opinion of law. It is his personal opinion.

There is no serious question about the AG's statements being admissible.

I would think there would be several problems with the following statement cited by ACLU:

9. 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.” Exh. B.

This is an opinion of law which does not fall under either Rule 701 or 702 permitting opinion testimony.

To the extent that the AG did make a statement of fact which is material to the operation of the NSA Program, the AG is only competent to give fact testimony of he has personal knowledge of the NSA Program. FRE 602. In order to testify under this provision, the AG had to have personally witnessed the facts to which he is testifying. Very likely, the AG would instead be repeating hearsay from a briefing.

To establish the operational details of the NSA Program, you would most likely need testimony by those conducting the program and business record documentation.

You write: "Under the state secrets privilege, the government does not have to admit or deny any fact."

Second, it doesn't matter if the government is in fact keeping something secret if that something is not necessary to the plaintiffs and not helpful to the government.


Courts almost never get into the briar patch of deciding what should and should not be classified. If the Director of Intelligence states that the classification of certain material is necessary for national security, the courts usually accept this at face value.

I cannot imagine any Court declassifying details of a top secret intelligence gathering program targeting al Qaeda during a war with reports of thwarted al Qaeda terrorist attacks in the news. At most, the courts will view top secret descriptions of the program in camera to ensure that the program is targeting al Qaeda and not say the DNC.
8.22.2006 7:52pm
Bart (mail):
Just an Observer:

Whatever the character of this material, Judge Taylor inspected it and rejected the government's assertion that it was necessary to defend the case. She even rebuked the government by calling that assertion "disingenuous and without merit." The context of that remark related to legal matters, not factual, but we don't really know what kind of stuff the secret stuff is.

So, assuming that the government renews its state-secrets argument on appeal, does the Sixth Circuit inspect the secret material and make its own determination, or accept the trial court's finding?


Because the ex parte evidence is not in the factual record and not relied upon by Judge Taylor, I don't see why the Circuit judges would need to review it.
8.22.2006 7:55pm
Medis:
Bart,

Again, the AG's statement clearly was an application of law to fact. A purely legal statement would be something like, "FISA generally requites court orders for electronic surveillance." But a statement like, "FISA generally requires court orders for THIS electronic surveillance," is an application of law to fact. What you are really doing is pointing out that the AG did not reveal many factual details. But those factual details are not relevant to the case because what the AG revealed is enough.

I already discussed above the difference between admissible statements and witness testimony. I will just note again that the AG probably does have personal knowledge of the program, but of course he wasn't called as a witness.

Finally, the last statement of mine you quoted was not about whether the material was properly classified. Rather, it was about whether the material was necessary to the plaintiffs' case, or helpful to the government's defense in the case. In other words, it is not enough for the government to say they have a secret--they have to show that what they are keeping secret is relevant to the merits of the case. Here, Judge Taylor rejected that claim. So, the government got to keep the material secret, but Judge Taylor found that keeping that material secret did not prevent ajudication on the merits.
8.22.2006 8:08pm
Medis:
Bart,

You write: "Because the ex parte evidence is not in the factual record and not relied upon by Judge Taylor, I don't see why the Circuit judges would need to review it."

Presumably because the government is appealing.

Again, you seem to be missing the fact that the plaintiffs didn't ask for discovery of this material. Rather, the government claimed that it would support their defense, but Judge Taylor found that it would not. So if the Sixth Circuit simply upholds Judge Taylor's finding without an independent review of the evidence, the government will lose on this issue.
8.22.2006 8:11pm
PRIM:
Anderson: Touche'! A real zinger. Pithy. But the basis for your comment would be ...?

Medis: How can one assume anything about Judge Taylor's interpretation of the evidence that the plaintiffs were subjected to unreasonable searches or had their free speech rights infringed. There was no such evidence. Maybe some allegations, but no evidence. After the 6th Circuit returns the case, maybe Christopher Hitchens will be willing to provide an affidavit that Osama has stopped returning his calls.
8.22.2006 9:06pm
A.S.:
Second, your analogy is off in part because the mere fact that the program involved electronic surveillance within the meaning of FISA doea not make it prohibited by FISA, or in general unlawful. In that sense, it would be more like Gonzales saying, "Yes, I took 'property' within the meaning of the burglarly statute, but I refuse to tell you exactly what property I took."

No, I don't think that's a better analogy. My question is whether an admission as to the crime as a whole (without specifying in the admission any particular element) constitutes evidence as to each of the elements of the crime. I think the affirmative defense (such as justification) analogy is better. It's like Gonzales said "I committed burglarly... but someone had a gun to my head." If the affirmative defense fails, does the prosecution need to produce evidence as to each of the elements of the crime other than the admission "I committed burglarly"? I would think so. Hell, based solely on that admission, the jury doesn't even know what, if anything, was stolen.

I take your warning to be wary about using criminal analogies for civil matters. Nevertheless, I thought it might be a helpful way to further explain my problem with the opinion. A motion for summary judgement by plaintiff must include factual evidence as to all the elements of the claim, and the admission really isn't such evidence.
8.22.2006 9:07pm
Bruce Hayden (mail) (www):
I am sure the Medis or JaO will jump on me for this, having presumably addressed this in another thread (sorry about dropping out for awhile and losing track - but Internet was down).

I think that the plaintiffs had a foundation for the (very highly questionable) 1st Amdt. decision in their favor. They were able to show in their undisputed facts that they had been talking to questionable people (i.e. terrorists, etc.), and that conversations with those questionable people dried up after the disclosure of the TSP - chilling their communications. At this point, I think we have a question of law, which, I suspect will be reversed easily (after all, sustaining this would mean that we have a 1st Amdt. right to freely communicate with enemies of our country during a time of war). And, with that, comes standing. And, note, I also find it probable that this part may survive the State Secret exemption - the classified information not disclosed by the government is unlikely to shed any light on this question whatsoever.

But that leaves the 4th Amdt. claim, plus FISA and Title III. As I understand them, they all require that a plaintiff be harmed, and that is where I think she crosses the line.

The sole fact that I can see in the plaintiffs' undisputed facts that would support a finding that any of them had been electronically surveiled by the TSP is:
(15) 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. Exh. I, Diamond Decl. ¶10; Exh. J, Hollander Decl. ¶¶12-13, 16-24; Exh. K, McKelvey Decl. ¶¶8- 10, 12; Exh. L, Swor Decl. ¶¶8-11.
Note that this statement is based on declarations of three of the plaintiffs, and, so would presumably be admissible and usable by the Court in making its decision here. And this sort of "well-founded belief" would be sufficient in most cases, if unrebutted, to support a summary judgment motion.

The problem is how could the government rebut that assertion? They can't really attack whether or not the plaintiffs had that belief. Nor, would it be easy to show that it was not "well-founded". The only realistic rebuttal would be that the plaintiffs were, in fact, not electronically surveiled. But, of course, the government's position all along is that it can't disclose that information, and that it is protected by the State Secret Doctrine.

Now, if I understand Medis' point from a previous thread correctly, it is true that we don't know exactly how the plaintiffs' motion for summary judgment was opposed by the government, but I think it highly likely that this statement will ultimately be rejected by the appeals courts on the basis that it does require State Secrets to rebut, and that the government properly did assert this privilege (indeed, it appears they did little else).

I would be interested in alternatives here, in particular, is there is a basis for a 4th Amdt., FISA, Title III, or APA without injury to a plaintiff, or if there is anything else in the undisputed facts that would support a finding that one or more of the plaintiffs were electronically surveiled?
8.22.2006 10:52pm
Just an Observer:
Bruce Hayden,

I think what your analysis misses is that the plaintiffs do not even allege that they were, in fact, surveilled.

As you have noted, their claim of standing and harm depends on the chilling effect, which in turn depends on the government's public announcement and description of the "Terrorist Surveillance Program," which public statements were not disputed.
8.22.2006 11:43pm
Christopher Cooke (mail):
I think what the Judge did was essentially rule on a legal question, even thought it was done procedurally on a motion for summary judgment: did the AG and President admit sufficient facts regarding the program to indicate that the plaintiffs' rights under the 4th Amendment, FISA and 1st Amendment were violated?

For those who object on the evidentiary status of the admissions, e.g., public statements by AG Gonzales and President Bush, there is case law authorizing a court to take judicial notice of these statements as official "acts" (I briefed this very issue 18 years ago, as a law student working on a trial, where we successfully admitted statements by Secretary of State Schulz and President Reagan). I think, in any event, the government attorneys for obvious reasons would have looked ridiculous disputing the authenticity of these statements or denying they were made. They certainly could make AS' argument, which is that the statements are not enough under Rule 56 to satisfy the plaintiffs' initial burden of persuasion.

The problem for the plaintiffs here is the plaintiffs likely do have to show their specific communications were subject to the surveillance, and that the surveillance was illegal, to have claims under the 4th Amendment and FISA (but maybe not under the 1st Amendment). That is why the plaintiffs are likely to lose on appeal, at least insofar as they will undoubtedly lose their victory of having the district court's grant of summary judgment in their favor reversed. But, the 6th Circuit could say, "well, the plaintiffs have not met their initial burden of persuasion under Rule 56, to shift the burden to the government to show that there are genuine issues of material facts in dispute," and simply remand. Or, the 6th Circuit could go for the whole enchilada, and dismiss on constitutional standing or jurisprudential standing grounds (assuming it doesn't buy the 1st Amendment "chilling" argument) or, it could say, well, the factual issues that the plaintiff needs to show standing --were their conversations surveilled and how---are within the government's possession but they are true state secrets, so we dismiss on that grounds. That appears to be what the government was trying to argue below. But, once Judge Diggs Taylor disagreed with that contention and the standing assertions, there were not as many "factual" issues left, the government really only had legal issues to argue.
8.23.2006 1:28am
zooba:
A.S.:
I think your problem is you don't understand what a party admission is. It is different from a statement against interest. It is more like a form of non-consensual stipulation than a normal piece of evidence. In fact, the party saying it does not even need to have a basis in his personal knowledge for saying it for it to be evidence against them.

An analogy, applicable in both the criminal and civil context is the responsive pleadings. In the civil context, it's the answer, and in the criminal context it's a plea. Think about the plea in the criminal context, it's obviously a reply based mixed question of law and fact. You can plead non-guilty because you believe a sufficient number of the facts in the indictment are false or cannot be proven, or because you can establish an affirmative defense (a mixed question of law and fact), or because you believe that the indictment does not actually state a criminal violation.

Think about the guilty plea. Although a defendnat, as a matter of due process, is now typically required to allocute to establish that he comitted the offense, that's not an essential aspect of the guilty plea. The guilty plea is saying, "I comitted the offense charged." It implies the the satisfaction of all elements of the offense charged.

A party admission can, like a guilty plea, be a mixed statement of law and fact. Like a guilty plea, there is no inherent necessity that evidence be established showing that its actually true and that all elements could be proven.

Now think about pleas of Nolo contendere and Alford Pleas. I don't want to get into the technicalities, but you are basically accepting the imposition of judgment without saying you are guilty of the crime charged. These are also like party admissions, but unlike the modern guilty plea, have no requirement to allocute and there is essentially no requirement that there would even be sufficient evidence necessary to prove the charge.

Similar analogies can be made in the civil context. Although a complaint may be simply a short and plain statement of the facts giving rise to the claim, it may also state legal conclusions. A defendant is under no obligaiton to deny purely legal conclusions, but to an answer which simply admits all paragraphs of the complaint, including legal conclusions will be held against the defendant. Now, if the Plaintiff had a pleading error and failed to plead the necessary facts for an element, even though the Defendant admitted the legal conclusion requiring that element, what would happen?
8.23.2006 6:01am
Medis:
A.S.,

I don't have much to add to zooba's post. But I wanted to note this comment:

"My question is whether an admission as to the crime as a whole (without specifying in the admission any particular element) constitutes evidence as to each of the elements of the crime."

Again, I think this analogy is just inaccurate. Gonzales admitting to "the crime as a whole (without specifying in the admission any particular element)" would be something like, "I violated Section 1809(a)(1) of FISA." But he didn't do that.

Maybe a quick rundown on the elements of 1809(a)(1) is warranted. It provides:

"A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute."

Interestingly, not only did Gonzales address some of the elements of 1809(a), he specifically addressed all of them (side thought: shockingly enough, maybe the Attorney General of the United States is actually a lawyer!). So, he explained that the Program involved electronic surveillance within the meaning of FISA, that it had been done intentionally and under color of law (the President's order), but he claimed that there was no violation because the surveillance had been authorized by statute (the AUMF).

So, Gonzales did in fact specifically address each of the elements of 1809(a)(1). And so what you are really complaining about is that he didn't go into even further detail (e.g., by explaining exactly how the Program involved electronic surveillance under FISA's definitions). But as noted above, I don't think that level of detail is necessary to the ajudication of the case.
8.23.2006 12:33pm
A.S.:
Medis writes: So, he explained that the Program involved electronic surveillance within the meaning of FISA

He did? I must have missed the part where he said it involved electronic surveillance within the meaning of FISA.

You continue: And so what you are really complaining about is that he didn't go into even further detail (e.g., by explaining exactly how the Program involved electronic surveillance under FISA's definitions). But as noted above, I don't think that level of detail is necessary to the ajudication of the case.

As noted above, I do think that level of detail is necessary to the adjudication of the case. Hence our disagreement.

Now, to find someone with enough time and energy to find some caselaw as to the level of detail a plaintiff moving for summary judgement must show...

As to zooba's comment, I don't really understand it. Is he trying to say that Gonzales's statement at the press conference is the equivalent of the Answer to the Complaint, rather than merely a piece of evidence? DOJ didn't say that the program would ordinarily require a warrant in the Answer; Gonzales said it at a press conference. Isn't there a difference between someone saying "I committed burglary" at a press conference and someone saying "I committed burglary" as a plea in front of a judge? I would think so.
8.23.2006 3:15pm
Medis:
A.S.,

zooba was discussing party admissions under the Rules of Evidence. If you read the post again, I think that will be clear. The bottomline is that they are not the same thing as direct witness testimony, and have an effect similar to pleadings.

Anyway, Gonzales said: "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."

Are you still trying to claim this "sheds no light" on whether the Program involved electronic surveillance within the meaning of FISA? Really? Really really?

You also said: "As noted above, I do think that level of detail is necessary to the adjudication of the case. Hence our disagreement."

But your sole support for this idea was your misleading analogy. As I pointed out, Gonzales discussed every single element of 1809(a)(1). So, your analogy to someone who only claims to have violated the statute but doesn't discuss the elements is simply inaccurate.

Thye bottomline is that the details of the surveillance--where and how it is done--simply are not relevant to 1809, 1810, Title III, or any other legal authority in this case. All that matters is exactly what Gonzales already admitted: "[I]n 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."

And again, to my knowledge the government has never disputed this fact.
8.23.2006 3:36pm
Anderson (mail) (www):
Anderson: Touche'! A real zinger. Pithy. But the basis for your comment would be ...?

"Basis"? What is this "basis" of which you speak? (Or: "Basis"? We don't need no stinkin' basis!)

But, if I must:

In specific reply to Professor Kerr's initial question, the 6th Circuit panel's greatest challenge will be to restrain itself from rising to each morsel of this sumptuous feast of bait scattered over scene by Judge Taylor.

Apart from sounding uncomfortably like Robert Bork before the Judiciary Committee, you also miss the "greatest challenge," which one would think might be: was SJ properly granted on the claim that the feds grossly violated FISA?

That would be the $64K question, I think, not pithy zingers about the district court's temerity in addressing the merits despite the feds' refusal to brief any.
8.23.2006 11:42pm
JVB (mail) (www):
Tried to read through all the posts on here to date. Lots of interesting stuff, but what I don't see being discussed is the fact that (per Alkali's post on 8/21 4:43PM) both the ACLU and the DOJ moved for SJ. The ACLU moved first, but only for partial SJ. The DOJ then moved for dismissal or SJ. Thus, WHO has the burden here?
8.24.2006 12:00am
Grithstole:
I do not have the decision in front of me as I type this, but I recall having the following summary judgment observations while reading it.

(1) A non-movant's admission alone does not suffice to render a factual assertion by the movant into an undisputed material fact if the assertion is unsupported by any admissible evidence.

(2) In deciding a summary judgment motion under Rule 56, the court cannot make fact findings but must deny the motion if there are any genuine issues on material facts.

(3) Judge Taylor blatantly mischaracterizes as “undisputed” her findings/conclusions on the most hotly contested, dispositive issues.
8.24.2006 6:58pm