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More on the NSA Domestic Surveillance Case and Its Chances on Appeal:
The excellent comment thread to yesterday's post on the NSA domestic surveillance case showed that there were a bunch of procedural aspects of the case that I was missing, and I wanted to follow up about those issues because they change the picture of the issues the Sixth Circuit faces on appeal. (Normally these things would have been clear from reading the district court opinion, but the opinion didn't include them. I haven't been following the case closely, so many thanks to those who were and helped fill us in.)

  The key dynamic that emerges from the commentary thread yesterday is that Judge Taylor asked DOJ to brief the merits of the case, and DOJ essentially refused to do so. (Procedural history of the case here.) DOJ's argument, if I understand it, was that it couldn't brief the merits without divulging state secrets; Judge Taylor evidently disagreed, and so took DOJ's refusal to brief the merits as a failure to dispute the facts and ruled against it. The civ pro people on the earlier thread seem to disagree whether this was proper; I'm not familiar enough with the issue of the top of my head to know which side is right, and it's far afield from my area of expertise so it's not something I'm planning to research, so I'm not sure of how that issue should be answered.

  Assuming it was correct as a procedural matter, I gather DOJ made a bit of a gamble: I gather the folks at DOJ figured that Judge Taylor was going to rule against them one way or the other, so it was better to just let her do that and head to the Sixth Circuit (and if necessary, the Supreme Court) to duke out the issues if need be in a more hospitable forum.

  What does this tell us about the future of the case on appeal? Well, if the Sixth Circuit judges agree that reaching the merits was procedurally proper, obviously it provides one less reason to reverse. On the whole, though, I still think it seems likely that the Sixth Circuit will reverse, and if they don't, that the Supreme Court will. Here's my thinking: in order to affirm, a higher court would have to agree that a) the resolution was procedurally proper, b) the plaintiffs have standing, and c) the case can go forward under the state secrets privilege, and d) there is a winning substantive cause of action that supports injunctive relief. Maybe I'm missing something, but I believe the ACLU would have to win on all four of these claims to have Taylor's judgement affirmed.

  That doesn't seem very likely to me. For example, on (d), none of the causes of action that Judge Taylor used to support the injunction seem persuasive to me; the only viable cause of action at this stage seems to be one that she didn't cover, FISA. If we're at a procedural stage that it can be understood that the TSP constitutes "electronic surveillance," then an appellate court could hold that FISA blocks the TSP and that DOJ's AUMF argument is unpersuasive as a matter of law. But this hinges on an issue that I asked before, and that no one seems to have an answer to: does FISA permit injunctive relief? I don't see how it does, for the reason mentioned in my earlier post, and if it doesn't I'm not sure how it can permit the injunction.

  Finally, my apologies to Glenn Greewald for calling his theory "bizarre"; I now have a better idea of what he was talking about, and while I'm not sure he is right, his view on the procedural issue (properly understood) isn't bizarre. And of course, I'm very glad that my prior post can help Glenn work through some of his apparent issues with law professors (bad experience with the Socratic Method, perhaps?).
Just an Observer:
As I mentioned in my comment on the earlier thread about injunctive, relief, my understanding is that the ACLU cause of action is brought primarily under the Adminstrative Procedure Act, which in turn relies upon the underlying claims that FISA, Title III, the First Amendment and the Fourth Amendment were violated.

The injunctive relief comes under 5 USC 706, which is part of the Judicial Review chapter of the APA. That section reads in part:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.


This section provides a general route to enjoining a variety of government misconduct. I am open to correction, but that is how I understand the case.

[OK Comments: Yes, the ACLU seems to have claimed a sort of hybrid cause of action, whereby you combine the relief available under the APA with the criminal provisions of FISA to get injunctive relief for FISA violations. But the question is, is this permissible? I have never heard of injunctive relief for FISA violations, nor of injunctive relief for any other criminal statute absent a specific statutory authorization.]
8.22.2006 8:08pm
alkali (mail) (www):
[Reposting a pertinent (I think) point I made in a comment at Glenn's site so that people are aware of this resource:]

The procedural history provided in my comment [regarding procedural history of this case in the prior thread] was generated by looking at the court's online docket and some of the filings in the case. That service is not free; you have to register with the federal courts' PACER service to get access, and you are dinged eight cents a page for all the documents you look at (opinions are sometimes free).

That said, if you are at all interested in federal legal issues, there is no good reason not to get yourself a PACER account -- you only need one account for virtually all federal courts. I am a profligate PACER user and I spend maybe $10 a month. Civil, criminal and bankruptcy files are all available. Your tab is charged quarterly to your credit card. I would hope that most lawbloggers have and use these accounts.

[I would note that I have no relation to the case before Judge Taylor and know nothing about it other than what I read in the papers and what I gleaned from the docket as described above.]
8.22.2006 8:09pm
Mark Field (mail):
Any thoughts on Judge Posner's Op-Ed suggesting that the courts shouldn't resolve this issue at all?

I'm not quite sure just who qualifies as a "national security expert" for his purposes, though he seems quite willing to grant that expertise to every single member of Congress plus the Executive. All things considered, that strikes me as charitable.
8.22.2006 8:16pm
Just an Observer:
As far as the APA goes, I think the NSA is an "agency" within its definitions, but I'm not sure the "Terrorist Surveillance Program" fits the definition of an "agency action."
8.22.2006 8:22pm
rp:
The 6th Circuit could well decide to affirm the District Court on the procedural issues (state secrets, standing), but reverse and remand on the substantive issues concerning the constitutionality of the program. For a District Court to decide issues of this magnitude without substantive briefing on the merits from the government is, to say the least, troubling. The 6th Circuit could conclude that the District Court had abused its discretion in treating the government as essentially having forfeited its right to brief the merits by not addressing them when it responded to that part of the plaintiffs' motion that went to the merits. The District Court could have handled this in many ways other than by denying the government an opportunity to brief the merits. Once the District Court rejected the preliminary claims, it could have given the government a short window in which to brief the merits. This is a further bizarre aspect of the way the District Judge handled this case, one I had not been aware of until I read alkali's posts. If the 6th Circuit concludes there are any facts to be developed that would be relevant to the constitutionality of the program, this affirm, reverse, and remand is surely what it will do.
8.22.2006 8:25pm
Just an Observer:
Mark Field,

Marty Lederman wrote a response to Posner here at Balkinization.
8.22.2006 8:27pm
neil k.:
For a District Court to decide issues of this magnitude without substantive briefing on the merits from the government is, to say the least, troubling.

It's also troubling for the government to refuse to brief the Court on the merits, isn't it?
8.22.2006 8:30pm
Legal Thoughts (mail):
I'm not sure if this was mentioned in the previous thread (I confess that I haven't had time to review it thoroughly), but isn't one possibility, if the Sixth Circuit is really trying to duck some of the thorny substantive issues in this case, that it could VACATE (rather than REVERSE) the district court's ruling? That is, if the procedural problems pointed out by Prof. Kerr and others do in fact fatally undermine the district court's judgment, why wouldn't the appropriate result be to vacate and remand? By doing so, the court of appeals could deprive the lower court's ruling of any force and give DOJ a chance to press some of arguments that it (and others on its behalf) have been making.
8.22.2006 8:34pm
Mark Field (mail):

Once the District Court rejected the preliminary claims, it could have given the government a short window in which to brief the merits.


It did do that. The time frame was not long -- a few weeks -- but the court did grant it.


Mark Field,

Marty Lederman wrote a response to Posner here at Balkinization.


I saw that. Thanks.
8.22.2006 8:38pm
rp:
Also, to Orin, the federal courts/remedies question is not whether FISA permits private suits for injunctive relief. It is whether FISA should be construed to have created a comprehensive and exclusive remedial regime, such that Congress deprived individuals of the other sources of federal court jurisdiction they would otherwise have, such as those under the APA and other sources of law. I see no plausible basis for making that claim about FISA and you should let go of this issue. Did the government even make this claim in the case?
8.22.2006 8:42pm
rp:
To Mark Field:

Not as I read the chronology: the DC order denying the government's motion to stay briefing on the merits only permits the government to make its merits arguments at the oral argument on plaintiff's motion. I might be missing something, but that's the way it looks. Is there any filing on the merits from the government you are aware of or could point to?
8.22.2006 8:47pm
von (mail) (www):
Finally, my apologies to Glenn Greewald for calling his theory "bizarre"; I now have a better idea of what he was talking about, and while I'm not sure he is right, his view on the procedural issue (properly understood) isn't bizarre.

I'm curious whether you're just being cautious (because it's an area of the law that you don't know well), or if you have a specific objection in mind. I'm not much the fan of Judge Taylor's opinion. Barring unusual circumstances, however, Greewald's "theory" seems almost certainly correct.
8.22.2006 8:55pm
Mark Field (mail):

To Mark Field:

Not as I read the chronology: the DC order denying the government's motion to stay briefing on the merits only permits the government to make its merits arguments at the oral argument on plaintiff's motion. I might be missing something, but that's the way it looks. Is there any filing on the merits from the government you are aware of or could point to?


You're right. She let them oppose orally but said nothing about a writing.

The government's cross motion for summary judgment could have made most of its legal arguments, but that's not quite the same.
8.22.2006 9:08pm
rp:
It now seems that we have one of the most important legal and policy issues in the country having been decided without the government having briefed the substantive merits of the issue. That is not a legal process upon which serious judges at the appellate level are going to want issues of this magnitude to be resolved, nor should the system work that way. True, the government had a chance to address the merits. But equally true, the district judge could have denied the government's state secret/procedural claims and then asked for briefing on the merits. Instead, she appears to have "punished" the government for not addressing those issues earlier. But since there is far more at stake here than in private litigation between individuals, this kind of "punishment" could easily be found to be an abuse of discretion. If the District Court believed two filings by the government rather than one comprehensive one would somehow damage the plaintiffs, by introducing a few weeks of delay, the court could even have stayed the program until the court resolved the merits. I had not been aware of this aspect of the case until the comment thread here suggested it, nor has it gotten any media coverage yet, but this is at least as big a problem with the District Court's actions as some of the substantive analysis in the opinion.
8.22.2006 9:32pm
alkali (mail) (www):
She let them oppose orally but said nothing about a writing.

DoJ could have asked the Court for leave to file a supplemental brief -- there was lots of time before the scheduled hearing to draft and file such a brief -- but apparently DoJ chose not to do so. I cannot imagine the Court would have refused that request. (At the very least, DoJ will be hard pressed to argue on appeal that if had made the request, it would have been futile.)
8.22.2006 9:41pm
Jim Rhoads (mail):
I wonder if (hypothetically, of course) there were "a war on", it would make any difference to the commenters whether Judge Diggs Taylor gave the United States Government the opportunity to brief the merits of the case?
8.22.2006 10:01pm
Starwind:
RP writes:

But since there is far more at stake here than in private litigation between individuals, this kind of "punishment" could easily be found to be an abuse of discretion.

I would argue we are supposed to be a nation of laws, every individual equal in the eyes of the law, under a system of justice that is supposed to be blind to the litigants.

I would further argue Roe v Wade, Brown v. Board of Education, Marbury v. Madison, etc, all had a lot at stake for us the governed.

DoJ had the same benefits and burdens as any civil litigant, moreover it arguably has infinite resources.

No, neither the ACLU nor the DoJ is entitled to a "mulligan".
8.22.2006 10:03pm
alkali (mail) (www):
Actually, following up my 8/22 8:41p comment, it occurs to me that Judge Taylor's invitation to oppose plaintiffs' SJ motion at the hearing is itself somewhat unusual -- courts ordinarily prefer to get papers on complex motions in advance of argument. The more I think about it, the proper way to think about the court's invitation in the denial of motion to stay is not as saying, "Well, now you've forfeited your chance to brief," but rather, "I'd really like for you to give me your input on these issues before I rule."
8.22.2006 10:16pm
Mark Field (mail):

I wonder if (hypothetically, of course) there were "a war on", it would make any difference to the commenters whether Judge Diggs Taylor gave the United States Government the opportunity to brief the merits of the case?


The government did have that opportunity (from the judge's Order of May 31, 2006):

Plaintiffs Motion for Partial Summary Judgment having been filed on March 9, 2006,

And this court having twice previously granted to Defendants adjournments of this court’s
order that they respond to that Motion
;

And Plaintiffs’ Motion being previously set for oral arguments on June 12, 2006;

And Defendants’ response to Plaintiffs’ Motion having been due on or before May 26, 2006, in accordance with this court’s last grant of an extension of time to respond;

And Defendants having nevertheless filed no response to Plaintiffs’ Motion, but instead having filed a Motion to Stay Consideration of Plaintiffs’ Motion as well as a Motion to Dismiss or, in the alternative for Summary Judgment, with two declarations and a Notice of
Lodging, at the U.S. Department of Justice, of materials to be examined Ex Parte by the court...". Emphasis added.
8.22.2006 10:56pm
Francis (mail):
Orin, please consider the following hypothetical regarding enjoining the NSA program:

1. Congress passes and the President signs into law a statutory scheme that imposes obligations on a federal agency. (In my personal experience, the Endangered Species Act.)

2. An agency of the executive (for example, the Forest Service) takes an action without complying with the obligations of the Act (allowing timber harvesting without first consulting with the US Fish and WIldlife Service).

3. An environmental group seeks to stop the agency action -- ie, prevent the Forest Service from authorizing the cutting of timber.

Questions:

Do the plaintiffs have standing? Yes, if they can allege a particularized interest in the trees greater than that held by the public at large.

Can the plaintiffs enjoin the Forest Service? Yes, because the APA provides the remedy for the Forest Service's violation of a substantive statute. (it's a little more complicated than that, but the point remains the same.)

Blended legal theories, where the APA provides the procedure and a different federal law provides the substantive obligation, are common in lawsuits against federal agencies.

Expecting FISA to provide for injunctive relief against the NSA is missing the point. The very purpose of the federal (and, for that matter, California's equivalent -- see Cal. Code Civ. Proc. 1094.5) APA is to provide the process to rein in unlawful agency conduct.
8.22.2006 11:11pm
OrinKerr:
Francis,

Sure, this is basic admin law. But is the administration of national security surveillance under FISA and the like a regulatory scheme governed by the APA? It's not like the NSA is an agency that receives a delagtion of authority, or that receives Chevron deference; why should the APA apply?
8.22.2006 11:16pm
Just an Observer:
BTW, does the record show whether Judge Taylor traveled to D.C. to view the "lodging" of the secret stuff, rather than see it in chambers?

As I recall from news coverage of the hearings, there was a little one-upmanship going on with that. Instead of bringing the material to the judge's chambers in Detroit, DOJ said she had to come to their home turf. The DOJ litigator asked rather condescending in court if she had "had a chance" to go view the material, IIRC.

All in all, there was more than a little attitude in evidence between DOJ and the court. It was also entertaining to read Taylor's icy comment "that although Defendants have not responded to said Motion they may, if they appear, argue against it."

Zing.
8.22.2006 11:22pm
Bruce Hayden (mail) (www):
Part of our problem is that the decision is so awful. Since she didn't really bother to tell us what she used as a basis for finding a 4th Amdt., FISA, and Title III violation, we can only guess as to whether that should have been suppressed by the State Secret Doctrine. She should have said what undisputed facts were used where, and for the most part, she didn't. With respect to those claims, she also didn't tell us which facts supported a finding of what was violated, and how.

I don't think that the appeals courts are going to reverse based on her attempt to slide around the State Secret Doctrine. I find that quite legitimate - she was essentially saying (IMHO), ok, let's see what we can determine, after eliminating everything that may be protected by State Secrets. And, as I have said before, I find the 1st Amdt. claim supported and rather artful (but questionable based on precedent). The plaintiffs have, IMHO, made a supportable claim that their 1st Amdt. rights were violated through the chilling of their speech with known or suspected terrorsts. (This ignores that this sort of speech most likely can be legally chilled - but that is a different question). I can easily see how nothing protected by the State Secret Doctrine would affect this claim. After all, what could the government say to rebut that, even if the SS Doctrine didn't exist? The facts are simple: the plaintiffs were talking to these questionable figures before the disclosure of the TSP, and their electronic communications dried up afterwords.

As I pointed out in the previous thread, the remainder of the decision though depends either on the assumption that a 4th Amdt., FISA, and/or Title III claim doesn't require that a plaintiff actually be surveiled, or that the undisputed facts show that one or more were. Of course, the judge left us to our own guesses here, not being explicit either way. Nevertheless, I assume the later (but am open to argument for the former). Unfortunately, the only "evidence" in the undisputed facts supporting this later are the "well-founded beliefs" of the plaintiffs that they were electronically surveiled by the TSP. And, as pointed out before, I think that this should be, and will be, suppressed by the appeals courts on the basis of the State Secret Doctrine.

But getting to today's thread - the government's repeated insistence upon the State Secret Doctrine should be sufficient to exclude any evidence that could be rebutted if the privilege didn't exist. And that they plead that privilege should therefore, IMHO, be sufficient to exclude the "good-faith belief" that the plaintiffs were electronically surveiled.

So, my guess on an appeals court outcome is that the State Secret Doctrine workaround is accepted, the 1st Amdt. claim rejected as a matter of law, and that the remainder of the claims are rejected as lacking a critical element: injury to a plaintiff, which cannot be shown due to the State Secret Doctrine. And Standing is a toss-up - legitimate under the 1st Amdt. Claim until it is rejected as a matter of law.
8.22.2006 11:26pm
cowiche (mail):
Orin, great question about whether the APA even applies, but wouldn't we expect DOJ to have raised such an argument? That's one of the many mysteries here. Another thing that distinguishes this case from a run of the mill admin law claim is that the plaintiffs allege that the agency is engaging in on-going violations of criminal laws, as opposed to violations of some obscure rule about rates or something like that. It's stunningly serious, really.
8.22.2006 11:40pm
Francis (mail):
Orin: NSA is an agency within DOD. DOD is covered by the APA.

NSA doesn't generate regulations through either formal or informal rulemaking that reflect the agency's particular expertise (that I'm aware of), so the lack of any appellate decision granting Chevron deference to the NSA shouldn't have any relevance to the NSA being subject to the APA. Could you expound on your thinking on this point?
8.22.2006 11:47pm
Just an Observer:
Perhaps Orin is just playing the law professor here, letting us pupils find the details for ourselves. For my part, I repeat that I think there may be a specific problem with the APA definitions. I have no cases to go by, just the text of the statute, specifically in the definition sections.

It is easy for me to see that the NSA is an "agency" within the scope of 5 USC 701(b):

For the purpose of this chapter—
(1) "agency" means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641 (b)(2), of title 50, appendix ...


But it seems a stretch to say the the "Terrorist Surveillance Program" is an "agency action" as defined by 5 USC 551(13):

"agency action" includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act

Perhaps "failure to act" can be construed to mean, "failure to get a warrant?" That's the most charitable reading I can make.
8.23.2006 12:05am
Bruce Hayden (mail) (www):
I do think that the NSA will ultimately end up being under the APA. I remember a couple of years ago, when the USPTO's position that they were not was firmly rejected. Without rereading the decision, my memory was that it was fairly broad - that if an agency is not specifically excluded somehow, it is covered.
8.23.2006 12:23am
Lev:

I do think that the NSA will ultimately end up being under the APA. I remember a couple of years ago, when the USPTO's position that they were not was firmly rejected.


As it probably should have been. But the Patent Office and its programs are public, are conducted according to detailed public rules and regulations published for comment etc in the FR and formally adopted into the CFR; and the procedures that it uses internally that are not official regulations published in the FR and CFR are also public - I am speaking of the Manual of Patent Examining Procedure.

The only things that are secret are the applications for patents filed by various organizations both private and governmental, until such time as the applications are published.

NSA's similarity to the PTO is that they are both government entities that employ people and use computers and offices.
8.23.2006 12:50am
Lev:
§ 704. Actions reviewable

Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

How would one go about showing that any NSA action fell under that? And absent such a showing, how could the APA apply?
8.23.2006 12:51am
OrinKerr:
JAO, I think you may be on to something. According to Franklin v. Massachusetts and Dalton v. Specter, decisions of the President are not reviewable under the APA. Here is the relevant section from Franklin:
The President is not explicitly excluded from the APA's purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion. Cf. Nixon v. Fitzgerald, 457 U.S. 731, 748 , n. 27 (1982) (Court would require an explicit statement by Congress before assuming Congress had created a damages action against the President). As the APA does not expressly allow review of the President's actions, we must presume that his actions are not subject to its requirements. Although the President's actions may still be reviewed for constitutionality, see Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), we hold that they are not reviewable for abuse of discretion under the APA[.]
.
8.23.2006 1:01am
Just an Observer:
Orin,

The Franklin case, it seems to me, raises a separate issue than I did. Under Franklin, I wonder if any action by any agency can be reached by the APA if that action derives from an executive order.
8.23.2006 1:42am
Bruce Hayden (mail) (www):
How the heck can the President abuse his discretion? The only way that I could see that is if he violated some law, but then, why would the APA be needed, unless to provide remedies (as here)?

I suspect that that is why it is so unclear whether or not the APA applies to him. It just doesn't seem to fit someone who has his own Article II powers, and the powers of anyone else in the Executive Branch devolve from his.
8.23.2006 2:12am
Bruce Hayden (mail) (www):
The reason that I threw out the USPTO is that they had a long standing belief that the APA didn't apply to their decision making.

But, then again, as noted, part of the problem here with the NSA is that the rules and procedures being questioned are invariably classified, and, thus, presumably protected by the State Secrets Doctrine. And that would, also presumably, make review of those rules and how they were implemented problematic. After all, if the court doesn't know precisely what the procedures the NSA uses here, how can it find that the NSA violated such, when it also doesn't know what rule making was actually made?
8.23.2006 2:16am
Richard Aubrey (mail):
Given the general atmosphere these days, it would indeed be problematic to let secrets out to some individual who is not involved in the work on the promise that the individual would keep them secret.

Considering what the government presently cannot do--as a practical and political matter--to those who throw our classified material around, what they could do about Judge Taylor doing so would be effectively zip.

Judge Taylor is not the sort of person I'd want knowing any, smallest, least secret. I don't know if I'd take a permanent shut-down of the program as the price for making it impossible for her to take the secret material down the street to the Detroit Free Press. But I'd risk the temporary inconvenience on the way to an appeal with a rational jurist.
8.23.2006 8:44am
rp:
For those of us still interested in whether the judge vastly overreacted by not permitting the government an adequate opportunity to brief the merits of this case, or whether the government arrogantly defied the court and refused to brief the merits, it would be helpful to see the motions and papers related to DOJ's attempts to get the judge to "clarify" her orders. There is no link to those in the helpful procedural history comment that alkali provided earlier, but if anyone has a way of making those filings available, it would be central to this discussion. As should be obvious, there's a direct link between this issue and the substance of the judge's opinion: when a judge hears from only one side, it becomes far more likely that he/she will not be forced to think through the issues carefully and precisely, which, whatever you think of the outcome, this opinion unqustionably fails to do.
8.23.2006 9:49am
rp:
For those of us still interested in whether the judge vastly overreacted by not permitting the government an adequate opportunity to brief the merits of this case, or whether the government arrogantly defied the court and refused to brief the merits, it would be helpful to see the motions and papers related to DOJ's attempts to get the judge to "clarify" her orders. There is no link to those in the helpful procedural history comment that alkali provided earlier, but if anyone has a way of making those filings available, it would be central to this discussion. As should be obvious, there's a direct link between this issue and the substance of the judge's opinion: when a judge hears from only one side, it becomes far more likely that he/she will not be forced to think through the issues carefully and precisely, which, whatever you think of the outcome, this opinion unqustionably fails to do, as many have pointed out.
8.23.2006 9:50am
alkali (mail) (www):
WRT rp: If anyone has a good way of posting those online, I can download the PDFs from my PACER account and send them along.
8.23.2006 10:07am
OrinKerr:
Alkali,

E-mail them to me at my law.gwu.edu account, and I'll post them.

Orin
8.23.2006 10:23am
alkali (mail) (www):
Prof. Kerr: okerr@law.gmu.edu doesn't accept mail from my gmail account. If there is some other address you can accept mail at, please send that address to my gmail account and I'll include the docs in my reply. Thanks.
8.23.2006 11:20am
Antares79:
Alkali - "gwu" will give you better results than "gmu" ;)

Generally - agencies and exec orders get no deferrence (Chevron or otherwise) in their interpretation of criminal statutes. I doubt if FISA qualifies as a criminal statute, but it does provide for damages. Surely this alone contemplates judicial review
8.23.2006 11:33am
Just an Observer:
Antares79: I doubt if FISA qualifies as a criminal statute, but it does provide for damages.

FISA is certainly a criminal statute, although that is not all it is.

See 50 USC 1809, which criminalizes violations. That is one of the very troubling things about this controversy: Unless the President's controversial legal theories about the AUMF or Article II trumping FISA are correct, he and his subordinates apparently are committing ongoing felonies.
8.23.2006 11:43am
alkali (mail) (www):
Antares79: Got it. Thanks.
8.23.2006 11:58am
Medis:
Back on the issue of what the Sixth Circuit will do:

Here is my guess. Since this was decided on a MSJ, the standard of review is de novo, so there is no real reason for the COA to send any issues back down to the DCT for reconsideration. Ordinarily, of course, COAs will tend to find that a party has waived issues it did not raise before the DCT. But that is a prudential rule, and the COA can waive it. So, I predict that is exactly what the COA will do: waive this rule and let the DOJ brief whatever it wants.

What I can't predict is whether the DOJ will avail itself of this "mulligan" and actually brief the merits.
8.23.2006 12:18pm
Just an Observer:
Medis,

Do you care to guess whether Judge Taylor will grant a stay of the injunction pending appeal? That matter is set for a hearing Sept. 7.
8.23.2006 12:31pm
Medis:
JaO,

I have no idea, but if she doesn't, I bet the Sixth Circuit will.
8.23.2006 12:58pm
Charles Gittings (mail) (www):
See 18 USC § 2520 (Recovery of civil damages authorized)...

* 18 USC § 2520(a)

In General.--

Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.


* 18 USC § 2520(b)

Relief.--

In an action under this section, appropriate relief includes--

(1) such preliminary and other equitable or declaratory relief as may be appropriate;

(2) damages under subsection (c) and punitive damages in appropriate cases; and

(3) a reasonable attorney’s fee and other litigation costs reasonably incurred.


* 18 USC § 2520(d)

Defense.--

A good faith reliance on--

(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer under section 2518(7) of this title; or

(3) a good faith determination that section 2511(3) or 2511(2)(i) of this title permitted the conduct complained of;

is a complete defense against any civil or criminal action brought under this chapter or any other law.

*

So what's the burden of proof in a civil case?


Charly
8.23.2006 1:15pm
A.S.:
It will be interesting to see whether DOJ moves to have the case reassigned, or whether the 6th Circuit will do that sua sponte, given what we see about the opinion and now know about the Judge's conflicts of interest.
8.23.2006 2:02pm
Anonymous Liberal (mail) (www):
Orin:

I don't claim to be an expert on the APA, but if there is really significant doubt as to whether the plaintiffs even alleged a viable cause of action, why on earth didn't the government try to get the case dismissed on that ground? That seems like just the sort of threshold issue (like standing and state secrets) that the government would have jumped all over. Unless I missed it, however, I didn't see the DOJ even bring this up.
8.23.2006 4:34pm
Jim Rhoads (mail):
From FISA:

50 USC § 1810 Civil liability
SUBCHAPTER I - ELECTRONIC SURVEILLANCE

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801(a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover -

(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;

(b) punitive damages; and

(c) reasonable attorney's fees and other investigation and litigation costs reasonably incurred.


Contrast this with the general wiretapping statute quoted above by Charles Gittings.

The general wiretapping statute allows equitable relief for its violations, but only against parties "...other than the United States..."

FISA specifically does not include equitable relief among the remedies for its violation.

Interesting.

In addition, as JAO, Lev and Orrin point out, it is not clear that the APA provides a vehicle for injunctive relief against the NSA activities under these circumstances. It seems this is especially true for a violation of FISA, since FISA has a specific remedial section which does not provide for injunction relief.

Whether or not the Government chose to present this defense, the burden is on the Plaintiff (and the trial judge) to show that there is a basis for a claim for injunctive relief here, since that is the remedy sought and granted.

In my experience, the Plaintiff's brief should at least provide the Judge with the tools to grant the relief requested. In the case of Summary Judgment granting a permanent injunction, this is even more true. Apparently that was not done in this case, or if it was, the Judge failed to use the tools she was given.
8.23.2006 9:18pm
Jim Rhoads (mail):
"injunction relief" = "injunctive relief"

D***** PREVIEW
8.23.2006 9:20pm
Anderson (mail) (www):
I think injunction relief is what you seek when you become the target of an injunction?
8.23.2006 9:21pm
Jim Rhoads (mail):
Good shot, Anderson.
8.23.2006 10:35pm
Just an Observer:
Going back to the original complaint, we find more of the missing pieces:

JURISDICTION AND VENUE

4. This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court’s jurisdiction under Article III of the United States Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative Procedures Act, 5 U.S.C. § 702. The Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. The Court has authority to award costs and attorneys’ fees under 28 U.S.C. § 2412. Venue is proper in this district under 28 U.S.C. § 1391(e). …

CAUSES OF ACTION

192. The Program violates plaintiffs’ free speech and associational rights guaranteed by the First Amendment.

193. The Program violates plaintiffs’ privacy rights guaranteed by the Fourth Amendment.

194. The Program violates the principle of separation of powers because it was authorized by President Bush in excess of his Executive authority under Article II of the United States Constitution and is contrary to limits imposed by Congress.

195. The Program violates the Administrative Procedures Act because the NSA’s actions under the Program exceed statutory authority and limitations imposed by Congress through FISA and Title III; are not otherwise in accordance with law; are contrary to constitutional right; and are taken without observance of procedures required by law.

PRAYER FOR RELIEF

WHEREFORE plaintiffs respectfully requests that the Court:

1. Declare that the Program is unconstitutional under the First and Fourth Amendments;

2. Declare that the Program violates the principle of separation of
powers;

2. Declare that the Program violates the Administrative Procedures Act;

3. Permanently enjoin defendants from utilizing the Program;

4. Award Plaintiff fees and costs pursuant to 28 U.S.C. § 2412;

5. Grant such other and further relief as the Court deems just and proper


So there is one other authority claimed for jurisdiction that we have not yet considered, which is the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq

Judge Taylor's order seems to track the plaintiff's complaint almost completely.
8.23.2006 10:59pm
Jim Rhoads (mail):
JAO:

Notice that the requirements for granting injunctive relief are not pleaded in the Complaint. Moreover, there is no explanation of how the APA's remedial provisions supplement FISA, notwithstanding FISA's remedial provisions which do not include injunctive relief.

I still think that is a fundamental problem for the Plaintiffs, don't you?
8.23.2006 11:28pm
Just an Observer:
Orin et al,

After further textual analysis, I no longer worried that there is a problem with the definition of "agency action" under the Administrative Procedure Act. 5 USC 551

I now see that such definition can be satisfied by "denial" of relief, which in turn could include "denial" of "recognition of a claim, right, immunity, privilege, exemption, or exception."

It seems to me that failure to honor the privacy interests defined by FISA and Title III would fit that definition.

That statutory coverage, as well as the very general grant of jurisdiction under the Declaratory Judgment Act, leads me to believe the cause of action is valid.

Jim Rhoads,

I see nothing in FISA, the APA or the Declaratory Judgment Act that implies that just because FISA provides a limited cause of action for damages, other relief, including declaratory judgment and injunction, cannot be sought under these other general authorities.

The APA, 5 USC 702, states clearly, "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. ..."

The Declaratory Judgment Act Provides general authority for injunctive relief based upon the declaration that the underlying laws were violated. 28 USC 2201:

In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
8.24.2006 12:31am
OrinKerr:
JaO,

Do the cases support that reading? I looked this up briefly in Dick Pierce's Admin Law Treatise yesterday, and I didn't see anything that seems to support your textual reading.
8.24.2006 12:38am
Just an Observer:
Orin,

I can't answer your question about cases. My analysis and resources are limited to the text. WYSIWYG and nothing deeper, I'm afraid. I just wanted to share what I found with that caveat, and to confess that I apparently declared a false alarm yesterday about the definition of "agency action."
8.24.2006 12:50am
Lev:
8.24.2006 1:12am
Just an Observer:
Lev: I continue not to understand how one would show that any NSA action was within 504 of the APA statute so as to be able to be subject to court action.

So you mean 5 USC 702, as stated in the complaint? I don't think Section 504 applies.
8.24.2006 1:21am
Jim Rhoads (mail):
Very creative, JAO, but a bit of a stretch IMNSHO.

Here is the definition in pertinent part:

(
13) “agency action” includes the whole or a part of an agency ... relief, or the equivalent or denial thereof, or failure to act;


(11) “relief” includes the whole or a part of an agency—
***
(B) recognition of a claim, right, immunity, privilege, exemption, or exception


Where in the complaint is an allegation that the NSA failed to recognize a "claim, right, immunity, privilege exemption or exception" contained in FISA?

Who made such a "claim, etc." prior to the lawsuit which was denied?

When, was it made? To whom at NSA? Who at NSA denied it?

Etc., Etc.

I just don't see how that theory fits the facts in the Complaint.

Where does the Plaintiff or Judge Diggs Taylor explain that?

If that is either in the briefs or the opinion, I didn't see it.
8.24.2006 1:41am
Just an Observer:
Jim Rhoads: Where in the complaint is an allegation that the NSA failed to recognize a "claim, right, immunity, privilege exemption or exception" contained in FISA?

Do you think the warrant requirement for electronic surveillance as defined by FISA does not comprise a "right, immunity, privilege exemption or exception?"

That the TSP program exists and includes surveillance requiring a FISA warrant (absent the AUMF argument of law), and that no warrants are issued under the program, were undisputed facts.

As the opinion said:

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications... . As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information. Contrary to Defendants’ arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants’ public admissions regarding the TSP.


All the who, what, where questions you raise were not necessary to be answered in order for the judge to make a declaratory judgment that the program is unlawful.
8.24.2006 2:27am
Just an Observer:
Jim Rhoads.

And, I neglected to add, my original reading that "failure to act" can be construed to mean "failure to get a warrant" is also plausible.
8.24.2006 2:44am
Jim Rhoads (mail):
The facts alleged and as stated in the various documents presented by Plaintiffs showed only that such a program existed in which certain communications were monitored without warrants. These documents also indicated, however, that certain communications were monitored after warrants were obtained.

There is no allegation in the complaint that any particular communication between any Plaintiff and any third party was intercepted by the NSA at all, either with or without a warrant. There was certainly no allegation or proof that any particular Plaintiffs' communication was monitored by NSA in violation of FISA.

Therefore it is impossible to tell whether or not the NSA failed to recognize a "claim, right, immunity, privilege exemption or exception" contained in FISA respecting any Plaintiff.

In addition, Judge Diggs Taylor entered a permanent injunction, not just a DJ, and she entered it respecting the entire program, not merely respecting the Plaintiffs. This was not a class action.
8.24.2006 2:56am
Just an Observer:
Jim Rhoads,

I take your point about the case not implicating surveillance of specific plaintiffs. Thanks.

The "failure to act" element of the "agency action" definition, however, would apply to the entire program. The "exclusive means" provision of FISA universally requires that warrants be obtained for such surveillance.

The undisputed factual elements that the judge found do apply at that meta-level: "(1) the TSP exists; (2) it operates without warrants; (3) it targets communications... "
8.24.2006 3:33am
Lev:
Just an Observer

I'm sorry, my bad. Sec. 704

5 USC§ 704. Actions reviewable

i Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

701 provides the definitions for what follows

702 describes who may file an action and details of who the defendant is and stuff like that

703 describes what court etc. can hear the action, the form of the proceeding, venue

704 describes what types of agency actions can be the subject of 702 and 703

It seems to me that if what the agency did, its agency action, is not one specified in 704, then there is no jurisdiction in any form under 702 or 703 or the APA in general.

And if the plaintiffs cannot specify what agency action, defined term, there was that is encompassed by 704, then they should be SOL.

It seems to me that the Plaintiffs cannot specify what NSA agency action, defined term and as specified in 704, they were harmed by, because all the NSA stuff is state secret.

I don't see how "there was this newspaper story about the NSAs acts and there was this press conference that mentioned the NSAs acts...and therefore the NSA hurt me" can actually satisfy the 704 requirements.

I understand that if CAIR presents some affidavits saying "there was this newspaper story about the NSAs acts and there was this press conference that mentioned the NSAs acts...and therefore the NSA hurt me" and the govt does not somehow contest them, then they can be the basis for summ j.

But that does not address the 704 issue. NSA does not do rulemaking with publishing proposed regs in the FR, final regs codified in CFR. It doesn't have administrative law judges who have open hearings, publish opinions etc. Its administrators and personnel do not make public the projects they plan and how they plan to carry them out. And all those things are what the APA was intended to address, not the acts of a national security, state secret agency.
8.24.2006 3:44am
Just an Observer:
I have one question about the record we have to study (thanks again to alkali for that). There is no government reply to the orginal complaint. Is that because we just don't have it available, or because the government did not even file one?

Also, I note that there were two days of hearings in June and July, and we have no transcript.

As Anonymous Liberal noted above, if the government was going to challenge the cause of action, this is the kind of threshhold issue typically raised at that early stage. At any rate, we have no record that the government ever did so. As I understand where things stand today, the standard of review in the Sixth Circuit will be de novo, so DOJ will get another bite at that apple in their initial brief there.

I am exploring these issues here out of curiosity, spurred by Orin's Socratic questions above. He asked how the ACLU could even get injunctive relief, and I now think that baseline question can be answered from the case record. That is, I think I better understand the case.

That is not to say that it is not arguable. We shall see. AFAIK, in this case it has not yet been argued.

It is useful and fun for us to explore these questions here. But to avoid confusing ourselves, we should not presume that the courts must resolve all Socratic questions posed in blogs. While the next level of detailed question can be asked -- such as, does the NSA's failure to get FISA warrants actually comprise a "failure to act" under the APA -- what matters most is what questions are asked and answered by the parties, and ultimately what the courts think of that.

It may yet be that DOJ will argue that the APA does not apply to the NSA program. If so, since a District judge now has held that the statute does apply, it is the government's turn to say so.
8.24.2006 11:13am
Just an Observer:
Lev: 704 describes what types of agency actions can be the subject of 702 and 703.

I don't think so. I think "agency action" is defined in the chapter's definitions section, 5 USC 701. Which, in turn, references another definitions section, 5 USC 551.
8.24.2006 11:33am
Medis:
The definition of "agency action" in 551(13) seems intended to be extremely inclusive (indeed, it uses the verb "includes").

So, I'm guessing that may be why the government would not try to make Orin's argument.
8.24.2006 2:24pm
Just an Observer:
Medis,

Thanks for pointing out that generality of "includes" in the definition's text.

Meanwhile, I have found a case, DATA PROCESSING SERVICE v. CAMP, that also makes a point about generality of the APA:

The Administrative Procedure Act provides that the provisions of the Act authorizing judicial review apply "except to the extent that - (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. 701 (a) (1964 ed., Supp. IV).

In Shaughnessy v. Pedreiro, 349 U.S. 48, 51 , we referred to "the generous review provisions" of that Act; and in that case as well as in others (see Rusk v. Cort, 369 U.S. 367, 379 -380) we have construed that Act not grudgingly but as serving a broadly remedial purpose.


That case addressed standing to sue under the APA and its application to underlying statutes. It established a concept of a "zone of interest," which precedent I suspect the plaintiffs will find comforting when the battle over standing is joined in earnest:

The question of standing ... concerns, apart from the "case" or "controversy" test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus the Administrative Procedure Act grants standing to a person "aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. 702 [397 U.S. 150, 154] (1964 ed., Supp. IV). That interest, at times, may reflect "aesthetic, conservational, and recreational" as well as economic values. Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 616; Office of Communication of United Church of Christ v. FCC, 123 U.S. App. D.C. 328, 334-340, 359 F.2d 994, 1000-1006. A person or a family may have a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause. Abington School District v. Schempp, 374 U.S. 203 . We mention these noneconomic values to emphasize that standing may stem from them as well as from the economic injury on which petitioners rely here.
8.24.2006 3:00pm
Medis:
JAO,

That reminds me that in my view, the plaintiffs have enough of an injury for constitutional standing, and indeed I think it is obvious that Congess could have given them standing under Title III/FISA. That doesn't mean they have statutory and prudential standing, of course.
8.24.2006 3:47pm
Just an Observer:
Medis,

As I understand it, the "zone of interests" is fundamentally a doctrine of prudential standing. While there may be other doctrines or prudential standing that arguably apply, this one seems to offer solace to the plaintiffs.

Doctrines of standing, from my slightly cynical perspective, do not seem to fit neatly into a rigorously defined and logical taxonomy. And the "zone of interests" concept seems rather squishy to me. On such subjects I suspect many judges are governed as much by cognitive dissonance as by reason. If a judge finds this an attractive standard to apply here, and is inclined to hear the merits, it certainly gives him something to hang his hat on. So far it seems applicable to me.

Here is an interesting law review article from the Georgetown Law Journal by Jonathan Siegel on the subject. I am only part way into reading it in the annoying online format.
8.24.2006 4:32pm
Just an Observer:
Having read Prof. Siegel's article, I wonder if the state of the "zone of interests" doctrine is so muddled that it could provide a rationale for a judge ruling either way on standing. It's almost a Rorsach test.
8.24.2006 10:27pm
Lev:
Just an Observer


I don't think so. I think "agency action" is defined in the chapter's definitions section, 5 USC 701. Which, in turn, references another definitions section, 5 USC 551.


?

"Agency action" is defined only by reference to 551.

TITLE 5 > PART I > CHAPTER 7 > § 701
§ 701. Application; definitions
(2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency action” have the meanings given them by section 551 of this title.

TITLE 5 > PART I > CHAPTER 5 > SUBCHAPTER II > § 551
§ 551. Definitions(13) “agency action” includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act;

]Lev: 704 describes what types of agency actions can be the subject of 702 and 703.

]I don't think so.

By saying that, you are saying that anything an agency does is reviewable, which means you are reading 704 out of the statute. Because 704 says:

§ 704. Actions reviewable

i Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.

That an agency does something, may arguably be an agency action, but not all agency actions are reviewable, only those that meet the requirements of 704.

Which leads me back to my question. How does anyone know what

]agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act

the NSA did? What rule, what order, what license, what sanction, what relief, what equivalent or denial thereof, what failure to act?

The entire program is secret. The procedures are secret, the guidelines are secret, the protocols are secret, who was tapped or not, eavesdropped or not, call technical data examined or not, they are all secret.

How can the plaintiff's pursue an APA act claim under these circumstances without discovery or attempted discovery of what "agency action" defined term the NSA took, and whether it was an action action for which judicial review is permitted under 704?
8.25.2006 12:13am
Just an Observer:
Lev,

I think Section 704 describes what happens in agencies that do regulatory adjudications and rulemakings, etc. It describes when such administrative actions are ripe for judicial review in Article III courts.

I don't think it says that judicial review applies only to such agencies. The definition of "agency" under Section 701 is not limited to such regulatory agencies; it includes every agency in the government, with certain enumerated exceptions.

As for your questions about the applicability of "agency action" to the NSA program, my thoughts on that were explored in exchanges with Orin, Jim Rhoads and Medis above.
8.25.2006 12:42am
Lev:
Just an Observer


I think Section 704 describes what happens in agencies that do regulatory adjudications and rulemakings, etc. It describes when such administrative actions are ripe for judicial review in Article III courts.


You are finally swerving into my point.


I think Section 704 describes what happens in agencies that do regulatory adjudications and rulemakings, etc.


Right. That's what the Administrative Procedures Act was set up for. And NSA seems not to be such an agency - alternatively, if it does do rulemakings and regulatory adjusdications, no one knows what they are because they are secret, and attempted discovered would be mandatory to have any idea if the requirements of 704 can be met.

]It describes when such administrative actions are ripe for judicial review in Article III courts.

Assuming for the sake of argument that NSA is such an agency, how would anyone know when its actions were ripe for judicial review? It's all secret.

]I don't think it says that judicial review applies only to such agencies. The definition of "agency" under Section 701 is not limited to such regulatory agencies; it includes every agency in the government, with certain enumerated exceptions.

Judicial review has to apply to an agency as defined in 701 but pursuant to 702, in a proceeding following the form of 703, for final or statutory actions pursuant to 704.

To say NSA is an agency as defined by 701, and its actions are agency actions as defined by 701/551, just leaves you having completed applying definitions. To get judicial review, the defined agency and defined agency actions have to be proper pursuant to 702 amd 704.

Definition sections do not confer any sort of jurisdiction.
8.25.2006 3:28am
Just an Observer:
Lev,

I never said the jurisdiction is conferred by the definitions sections. Rather, it is described by the basic and clear language of :

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. ...


What you are disregarding is that the ripeness restrictions in Section 704 -- and only that section -- just don't apply in an agency that is not a regulatory agency. An alternative reading is that since it has no internal adjudication procedures, all its actions are "final agency action[s] for which there is no other adequate remedy in a court" for purposes of 704. The same result obtains either way.

You seem to be arguing that because the ripeness provisions of Section 704 exist, that means that the APA was not intended to apply to the NSA and other non-regulatory agencies. If that is what Congress meant to do, why did it leave the NSA (and almost all other non-regulatory agencies) within the scope of the definition of "agency" in its Judicial Review chapter?
8.25.2006 10:56am
Just an Observer:
Lev,

Sorry, I fouled up the link and the formatting, and clicked Post instead of Preview. The blockquoted portion of by previous post was from 5 USC 702.
8.25.2006 10:59am
Just an Observer:
Just to play devil's advocate, I will note that one of the exceptions to the definition of "agency" under 5 USC 701 is "military authority exercised in the field in time of war or in occupied territory."

I suppose it is possible that the administration might argue that NSA, a Defense Department agency, is acting "in the field in time of war" when it conducts domestic surveillance.

But DOJ would actually have to make that argument to challenge the APA jurisdiction in this case, and has not done so.

As a matter of statutory construction and legislative intent, I note that Congress excepted only military authority that fits that express description. That reinforces the clear meaning of the text, showing that Congress meant to include military agencies not meeting such criteria.

One might argue that because DOJ has not challenged the APA jurisdiction on those specific grounds, that tacitly undermines the theory that the AUMF authorizes the NSA's domestic surveillance program.

As I understand the de novo posture of this case on appeal, I surmise that the government may yet make such an argument.
8.25.2006 5:27pm
Lev:
Just an Observer


the ripeness restrictions in Section 704 -- and only that section -- just don't apply in an agency that is not a regulatory agency.



Right. And therefore there is no relief available under the APA.


An alternative reading is that since it has no internal adjudication procedures, all its actions are "final agency action[s] for which there is no other adequate remedy in a court" for purposes of 704.


Earlier you read 704 out of the statute. Now, by this, you say any action by any agency may be challenged under the APA.


You seem to be arguing that because the ripeness provisions of Section 704 exist, that means that the APA was not intended to apply to the NSA and other non-regulatory agencies. If that is what Congress meant to do, why did it leave the NSA (and almost all other non-regulatory agencies) within the scope of the definition of "agency" in its Judicial Review chapter?


Because the definitions section does not confer any rights on anyone for review of anything in any forum anywhere. What confers the rights, if any, are 702-who, 703-where, and 704-about what.

By your latest reasoning, if the FBI sets a wiretap on your US phone to record your US telephone conversations with US citizens without a warrant, you have a remedy under the Administrative Procedures Act - the setting of the wiretap is a final agency action.

I don't see how that makes any sense.
8.26.2006 2:02am
Just an Observer:
Lev: By your latest reasoning, if the FBI sets a wiretap on your US phone to record your US telephone conversations with US citizens without a warrant, you have a remedy under the Administrative Procedures Act - the setting of the wiretap is a final agency action.

I think a more accurate analogy would be if the Attorney General announced that a new "Criminal Surveillance Program" had been put into place by the FBI, and that Program generally was conducting wiretaps without Title III warrants.

In such a case, I think the APA would provide jurisdiction for a lawsuit to enjoin the program.
8.26.2006 9:40am
Lev:
Just an Observer


I think a more accurate analogy would be if the Attorney General announced that a new "Criminal Surveillance Program" had been put into place by the FBI, and that Program generally was conducting wiretaps without Title III warrants. In such a case, I think the APA would provide jurisdiction for a lawsuit to enjoin the program.


1. Perhaps, to the first part.

2. With respect to the second part, would such an injunction be properly issued, permanently, based on a news conference statement, based on some individual claiming he believed he might have been caught up in it because he didn't get as many phone calls as usual? Or would the APA claim, with proper jurisdiction, have to be the AG and FBI did not follow proper rulemaking processes under the APA, published proposed regs etc for the program, public comment period, etc. etc. before putting the program into effect - TRA or Perm Injunction pending following proper rulemaking? I would agree with the latter, and have my doubts about the former.

In the NRA case, the former was the court case and there is no way the latter, public rulemaking, would occur.
8.27.2006 3:19am
Just an Observer:
Lev,

To continue the analogy, obviously the plaintiffs suing to enjoin the "Criminal Surveillance Program" would need to establish standing. No one claims that the APA automatically establishes standing, only that it provides a basis for a cause of action.

To flesh out the analogy, since the Program was confined not only to surveilling criminals (just as the "Terrorist Surveillance Program" is not confined to surveilling terrorists) there would be many persons who would be "adversely affected or aggrieved," and who thus might try to establish standing. Such persons would include those who are merely "affiliated" with criminals, members of organizations that are "affiliated," or "working in support of" criminals," or others who communicate with such persons.

As for the rest of your comment, the APA is not aimed merely at second-guessing or reviewing the internal decision-making process of the agency involved, but also can provide the basis for challenging the whole agency action on the grounds that the action violates statutes or the Constitution.
8.27.2006 9:09am
Just an Observer:
Lev,

Just to relate this back to the non-hypothetical NSA program, the undisputed facts in this case show that the agency process in question is final. According to the statements of Gonzales and others, the program in fact has been authorized by the President, it has been renewed multiple times (every 45 days) and the President has stated his intention to continue reauthorizing it.

Now, to play devil's advocate again, I note that Orin found precedent against the application of the APA to the President. But this lawsuit is against the NSA, which has followed the President's orders. So conceivably the government could attack the statutory cause of action on those grounds. But so far it has not done so.
8.27.2006 6:42pm
Lev:
Just an Observer


To flesh out the analogy, since the Program was confined not only to surveilling criminals (just as the "Terrorist Surveillance Program" is not confined to surveilling terrorists) there would be many persons who would be "adversely affected or aggrieved," and who thus might try to establish standing. Such persons would include those who are merely "affiliated" with criminals, members of organizations that are "affiliated," or "working in support of" criminals," or others who communicate with such persons.


It seems to me you are trying to establish a standard that not even FISA required - purity of those who are surveiled. FISA in a number of provisions only requires that reasonable steps be taken not to catch the inappropriate people. Purity of "the catch" is not required; impure catch does not invalidate a FISA appropriate program. People could claim they had standing to challenge a fully approved FISA program because they were caught in the program web and there was no probable cause to watch them, but they would lose so long as the reasonable steps were part of the program.

Why should whatever the NSA is doing be subject to a different standard? And how does anyone know the NSA is not taking "reasonable steps" consistent with the FISA statute so as to exclude, say, the Hitchens and ACLU type plaintiffs? If, as Bush I think said, the NSA program focuses on al Queda real time information, why wouldn't that make sense, and exclude people who are not in contact with the al Queda types?


the APA is not aimed merely at second-guessing or reviewing the internal decision-making process of the agency involved, but also can provide the basis for challenging the whole agency action on the grounds that the action violates statutes or the Constitution.


Sure, but CAIR and the other plaintiffs do not really know what the actual agency action is - it is secret. Only some general stuff has been made public. It seems to me that challenging the program is fine, but they have no idea what the program actually is unless they try some discovery to find out what it actually is and how it works.


Just to relate this back to the non-hypothetical NSA program, the undisputed facts in this case show that the agency process in question is final. According to the statements of Gonzales and others, the program in fact has been authorized by the President, it has been renewed multiple times (every 45 days) and the President has stated his intention to continue reauthorizing it.



I suppose. But


undisputed facts in this case show that the agency process in question is final


are merely the "legal process facts" alleged by CAIR. They are "legal process facts", at the moment, because they are alleged and unopposed in the legal process- that does not convert them into real facts.

I wonder how "final" the "agency rulemaking" is if the program is re-viewed every 45 days to make sure it is working appropriately, whatever that means, and is then adjusted or not and reauthorized for another short period. It sounds rather provisional to me rather than a final rulemaking that is subject to review under 704.

Separate and apart from what action the NSA actually is taking, speaking actual facts not legal process facts, how do any of the plaintiffs actually have any knowledge indication or suggestion that the actual program has had anything to do with them at all? People are afraid doesn't seem to me to be sufficient. Maybe they have been subject to it, but I don't see anything like that in actual facts, as opposed to legal process facts.


But so far it has not done so.


The government hasn't made a lot of arguments. That matters in terms of legal process, but is not particularly convincing of anything in terms of actual reality. One of the big questions here is, will actual reality, as opposed to "legal process reality" ever be allowed to enter the arena.
8.28.2006 12:28am
CharleyCarp (mail):
One thought: the other and further relief that follows a declaratory judgment includes enjoining a government program that is unconstitutional.

There's no remedies issue here.

It may not have been prudent for the government to put all its eggs in the State Secrets basket, but we'll only know the answer to that after SC review. In the meantime, although it's a risk to omit the facts upon which a Fourth Amendment merits argument could have been made, that risk was probably worth running: if they put sufficient facts on the table to make out the elements of a criminal violation -- should the various procedural defenses fail, and the alleged exemption from the Fourth Amendment prove elusive -- then criminal sanctions might follow. As it is, the worst that can happen is an injunction, the result of which is either (a) get FISA warrants in compliance with the current statute or (b) get an amendment to FISA that makes warrants as easy to get as is permissible under the Fourth Amendment.
8.28.2006 10:37am
Just an Observer:
Lev: It seems to me you are trying to establish a standard that not even FISA required - purity of those who are surveiled. FISA in a number of provisions only requires that reasonable steps be taken not to catch the inappropriate people.

No, I am pointing out that the broad net defined by the announced parameters of the "Terrororist Surveillance Program" are much wider than the published and codified standard required by FISA. The FISA standard requires "probable cause" that the target is an "agent of a foreign power," which in turn requires that such person "knowingly" perform one or more enumerated bad acts. By contrast, the announced standard of the TSP requires only "reasonable suspicion" that someone is a member of Al Qaeda, "affiliated" with Al Qaeda, a member of an "affiliated" group or "working in support of" Al Qaeda.

"Affiliated?" "Working in support of?" What the heck does that mean? A reasonable person who can be sure he is not an "agent of a foreign power" because he knows he never committed one of those enumerated bad acts still might think the loosey-goosey TSP standard applies to him.

Lev: Separate and apart from what action the NSA actually is taking, speaking actual facts not legal process facts, how do any of the plaintiffs actually have any knowledge indication or suggestion that the actual program has had anything to do with them at all?

The theory of this lawsuit is not that the plaintiffs necesarily were surveilled, but that the program exists, its announced characteristic of warrantless surveillance violates statutes and the Constitution, its announced parameters reasonably apply to the plaintiffs or their communicants, and that has created an actual harm to the plaintiffs by chilling such communications.

Again, this is a question of standing, not jurisdiction under the APA.
8.28.2006 10:39am