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Documents from the NSA Surveillance Case:
Via Alkali, I have obtained copies (or links to copies) of many of the key documents filed in the district court in the ACLU v. NSA case decided by Judge Taylor last week. Here they are, all in .pdf format:
Docket Sheet in the case as of this morning

ACLU Motion for summary judgment (filed March 9)

DOJ motion to dismiss (or in alternative for summary judgment) (filed May 25)

Order denying DOJ's motion for a stay (filed May 31)

DOJ's motion for clarification (filed June 2)

ACLU's reply memo in support of summary judgment (filed June 5)

ACLU's response to DOJ's motion for clarification (filed June 6)

DOJ's reply to ACLU's response (filed June 7)

ACLU's response to DOJ's motion to dismiss, or in the alternative for sumamry judgement (filed June 20, 50 pages)

DOJ's reply to the ACLU's response (filed June 30, 33 pages)
If I get additional documents and think they're worth posting, I'll add them to this post.
BTD_Venkat (mail) (www):
About time :)

My take is that the Govt. sought clarification as to whether the state secrets and substantive issues would be considered separately. It's unclear whether the Court ever ruled on that Motion. At least there's no docket entry.
8.24.2006 8:48pm
A.S.:
Yeah, the motion for clarification is strange. I had the impression from the supporters of the ruling that the Judge said clearly that the government would have to address the substantive issues presented by the summary judgement motion, and could not wait until after the standing/privilege issues were disposed of.

Obviously, that wasn't so clear.
8.24.2006 8:58pm
James Lindgren (mail):
I also thought that the govt's 6/2 motion for clarification was odd. Did the judge orally give them an answer? I don't see any ruling or order by the judge specifically responding to that request, unless it was subsumed elsewhere.
8.24.2006 10:11pm
jgshapiro (mail):
A.S.:

Why would standing have to be disposed of before the hearing on the MSJ? Couldn't the judge hear argument on standing at the hearing? Standing is not the same thing as a jurisdictional challenge, so you don't have to resolve it first. Or am I missing something here?

I suppose she could have been clearer on the privilege point in her denial of the stay: that she might or might not find a prima facie case based on publicly admitted facts and that the government might want to respond to the merits in the event that she did not agree that the gov't. needed the state secrets to defend against the public-fact-prima-facie case. But the government took the risk that she would find a prima facie case in the public facts by not briefing a defense to it, didn't it?

Seems to me her reasoning on the first two issues -- privilege and standing -- is entireably sensible. It's her reasoning on the merits that could use some (a lot of) work.
8.24.2006 10:12pm
Greedy Clerk (mail):
Any civil litigant that "responds" to a motion for summary judgment by a "motion to stay" would be laughed out of court. So, Jim, Orin, and the other law profs here may find it "strange" that the judge did not bend over bakcwards to the government's disrespectful "motion for clarification" those of us who have practiced in the federal courts do not. Why couldn't the government file an opposition to the motion for summary judgment? Their explanation in their motion for clarificion was downright insulting -- that they could not possibly do so because the only proper response was a motion to stay, i.e. that the only proper response was not the response called for by the Federal Rules of Civil Procedure and the Judge should have just known that the Government was implicitly claiming an exemption from the ordinary rules of civil litigation. No wonder this judge was pissed. It is always a moving target with this administration. People like Ann Althouse (and Jim by endorsing her laughable editorial) et al., who willfully ignore the merits of the absurd arguments in favor of the Government and childisly criticize the Judge for not saying "Chief Justice Warren" instead of "Justice Warren" are a joke -- they need to get out of their ivory towers.
8.24.2006 10:56pm
OrinKerr:
Greedy Clerk,

Isn't it kind of ironic that you criticize people for "childishly criticizing" opponents in the course of an ad hominem criticisms of them? In any event, I hope my posting of the court documents was sufficiently "out of the ivory towers" for your taste.

Another point worth noting is that this is no ordinary case: This is a very high-profile case that has a pretty good chance of going to the Supreme Court. In such cases, trial judges are usually very careful about exploring every issue and creating a good record for appeal (see, for example, the Moussaoui prosecution). So while such a motion may seem disrespectful in an ordinary case, I wonder if the picture isn't a bit different in this particular case.
8.24.2006 11:09pm
Greedy Clerk (mail):
Orin -- I hate to say it, but you are being used by the far right. Everytime you say that there are "serious" issues raised by this program, and do not say what you know to be true -- the program is illegal and unconstitutional -- is a score in favor of this administration and its illegal policies. History will look back at this administration and programs like this in the same way they look back at Korematsu*. People who were busy criticizing the Judge's reasoning (or worse her failure to use the word "Chief") rather than the government's laughable, but dangerous, arguments will be remembered as indistinguishable as those who made the arguments in favor of the government in the first place. People who allow their comments sections to be used as a place where others can racistly attack the Judge (I refer you to Jim's post about Althouse's "article" where commmenters started referring to the Judge as "Sistah Diggs") will be remembered as permitting what is happening to happen.

Get on the right side of history and write an article saying what you know is true. Otherwise, you will be remembered as only a tool of the right.

*I know that some here, as frequenters of Michelle Malkin's site, think Korematsu was a great thing but I am tlaking about sane people who take the constitution seriously..

[OK Responds: Greedy Clerk, I realize that you have very strong feelings about this Administration. But you're rather bizarrely misprepresenting what I have said about the NSA program. Why?]
8.24.2006 11:22pm
dbm (mail):
OrinKerr,

You are kidding with your second paragraph, right? I mean, this is a high-profile case with serious Consitutional and national security implications that has a good chance of going to the Supreme Court. In such cases, LITIGANTS are usually very careful about briefing every issue and creating a good record for appeal. Usually they don't play a game of "chicken" with the judge. So while such a motion may seem disrespectful in an ordinary case, it is even more so in this particular case.
8.24.2006 11:32pm
Just an Observer:
Having viewed the timeline in the docket sheet, I cannot find anything that tells us when Judge Taylor actually inspected the secret materials (notice of Lodging of In Camera, Ex Parte Material filed May 26) or the secret pleading (notice of Lodging In Camera, Ex Parte Reply Brief filed June 30). Am I missing something?

Also, I note that the hearing on the motion to stay the injunction pending appeal, previously scheduled for Sept. 7, has been delayed until Sept. 28.
8.24.2006 11:34pm
Lev:
Orin and Alkali

Thank you very much.

I have a question about one document. Under the rules, the defendant is supposed to file a response to the initial complaint. CAIR filed the original complaint in January so the response was due in Feb.

Do you have that one?
8.24.2006 11:36pm
will (mail):
Althouse and others are labeling this judge a judicial activist while they are faulting her for not addressing issues not raised by the parties.

Apparently, Althouse and others do not understand the very basic structure of litigation.

Perhaps next time, she can learn about the basic procedural posture of the case. Then, she can address the issues raised by the parties in the context of the procedural posture instead of just conducting a personal attack on the judge.

I agree with the others that I think the regular posters (Kerr, Volokh and others) should use their considerable legal minds to focus on this case as it was before this particular judge, and not attempt to discuss issues not raise by the government.
8.24.2006 11:39pm
BTD_Venkat (mail) (www):
Greedy Clerk I'm not sure you are right. The govt. seemed to have filed a Motion to Dismiss. The typical practice is when a motion to dismiss is denied, the responding party has to answer and then proceed to discovery. It's odd to consider the MSJ at the same time as a Motion to Dismiss (the initial responsive pleading). But the party who is denied a Mot. to Dismiss is generally provided an opportunity to further respond when that motion is denied.

I only took a quick look at the docket.

I do agree that the government handled it oddly. It is somewhat cavalier (to say the least) to request clarification and then not have filed (just in case) some sort of substantive opposition. Just in Case. You know, just in case. At least they should have briefed the legal issues. Also, in the Motion raising the state secrets issue the govt. argued it could not oppose the Motion without divulging state secrets. So maybe the judge took this to mean that the govt. would not have opposed anyway (I'm not familiar with state secrets law but does it preclude divulging these in litigation?).

At the end of the day most judges would typically explain all of this in the background section to the order.
8.24.2006 11:40pm
Anonymous Liberal (mail) (www):
I have a question about one document. Under the rules, the defendant is supposed to file a response to the initial complaint

You don't have to file an answer. You can respond to the complaint with a motion to dismiss. The government sought and received two extentions and then eventually filed a motion to dismiss.
8.24.2006 11:43pm
will (mail):
I would like to understand why all of these so called experts who have criticized this judge's ruling believe that this judge should have come up with arguments that the government never advanced.

I would suggest that they do a quick Lexis search for the phrase "the defendant (or plaintiff) never raised this issue so it is waived."

[OK Comments: Will, I suspect the reason is that no one has suggested that the merits of the case were waived. If all of the merits were waived, then presumably Judge Taylor would have just said so, right?]
8.24.2006 11:48pm
Anonymous Liberal (mail) (www):
Having now scanned through the docket, I repeat my question from a previous thread: If the plaintiffs aren't alleging a viable cause of action, as has been suggested here, why didn't the government file a 12(b)(6) motion? Why pass up the opportunity to have this action dismissed by demurrer? Perhaps they thought that would be misinterpreted politically. Perhaps they were overly confident in the strength of their standing and state secrets challenges. Or perhaps they just didn't have a good 12(b)(6) argument.
8.24.2006 11:49pm
Mark Field (mail):

The govt. seemed to have filed a Motion to Dismiss. The typical practice is when a motion to dismiss is denied, the responding party has to answer and then proceed to discovery. It's odd to consider the MSJ at the same time as a Motion to Dismiss (the initial responsive pleading).


The procedure disclosed by the links above is rather odd. The MSJ was filed before the Motion to Dismiss. Since the Motion to Dismiss was filed alternatively as an MSJ, and after two extensions to respond to the ACLU's MSJ (we know that from previous postings), it looks as if the government believed it could oppose the ACLU's MSJ by it's own Motions instead of responding as required by Rule 56. I can't imagine an ordinary litigant acting like that; it's just begging for the result it got.
8.24.2006 11:52pm
A.S.:
Having now scanned through the docket, I repeat my question from a previous thread: If the plaintiffs aren't alleging a viable cause of action, as has been suggested here, why didn't the government file a 12(b)(6) motion?

Huh? The May 25 filing was a motion to dismiss under 12(b)(1) and 12(b)(6).
8.24.2006 11:53pm
Bruce Hayden (mail) (www):
Greedy Clerk

According to what I have read of the government pleadings, such a stay is common, if not typical, in a case like this, where the State Secret privilege is asserted. One of the reasons is that until the question of State Secret privilege is resolved, it is impossible to determine what evidence a court can hear. Indeed, I still can't figure out what evidence was used in the judge's opinion (beyond that used for the 1st Amdt. claim and Standing), and, thus, can't figure out how much of it should have been excluded under the State Secret privilege.

Orin: Thanks. Don't know where you found all the government documents. The ACLU is pretty good at putting up theirs, but not as good with the other side's.
8.24.2006 11:58pm
Justin (mail):
OK, the government cannot waive a legal claim by not responding. This difference is specifically written into the Federal Rules of Civil Procedure. See, e.g. Fed. R. Civ. P. 55(e).
8.25.2006 12:04am
Justin (mail):
Indeed, though it could have been more clear about this, Judge Taylor-Diggs' opinion makes a great deal of sense through the lens of 55(e).
8.25.2006 12:05am
BTD_Venkat (mail) (www):
Bruce there's a system called pacer that houses docs filed in all cases (for courts that are on the system). All docs in this case are available via pacer.
8.25.2006 12:10am
Just an Observer:
I neglected to thank Orin and others who expended the effort to collate these links here.

For those familiar with PACER, would that system include the transcripts of the two hearings?
8.25.2006 12:20am
A.S.:
Also, in the Motion raising the state secrets issue the govt. argued it could not oppose the Motion without divulging state secrets.

This is the part of Judge Taylor's rush to judgement that I still fail to understand.

The procedural history is:
1. Plaintiffs move for summary judgement.
2. In response, the government moves to dismiss, saying it can't defend the claim without divulging state secrets.
3. Then the government moves for a stay (WHY? Can OK get that document?).
4. Judge denies stay.
5. Government moves to figure out what the denial of the stay means.
6. Judge ignores the motion for clarification and finds that government can defend the claim without divuling secrets, but then doesn't give the government a chance to actually do so.

Rush to judgement.
8.25.2006 12:24am
josh:
BTD_Venkat:

It's not strange to consider a Motion to Dismiss as an MSJ. Am I wrong, or doesn't that happen any time the parties provide materials outside the complaint. When providing evidence beyond the complaint, the court has the discretion to turn the MTD into an MSJ.

As far as the govt failing to argue merits, who here works for a large law firm? Can anyone honestly imagine the path one's career would take for such an abject failure? The judge's failure to state in her opinion, "X argument was not addressed by the defense and therefore is waived" PALES in comparison to the failure to brief the issue. The two "failures" aren't even in the same ballpark, regardless of the subject matter and probability of supreme court review. I invite Orin to ask the head of any litigation department in any major law firm if he doesn't agree.

While I agree wholeheartedly with Greedy Clerk, I would urge calm. There's no point in the emotion b/c it will never get you anywhere. I don't recall who said it, but to paraphrase, who thinks the Ann Althouses of the world would have NOT criticized the opinion even if it had been written Holmes himself?

I think Orin ultimately agrees with the result of the opinion, but for those as emotionally charged as Greedy Clerk (and I) who feel likewise, we all should be concerned about some of the analytical omissions in the opinion. If you really want an opinion to stand up, it has to be bulletproof, and I think the intellectually honest analysis done by Orin demonstrates that it isn't. My best hope is that an appeals court using de novo review will be able to fill the gaps.

I would very much like to see the inevitable debate Orin has with Geoff Stone at U of C next semester. That should be fun.
8.25.2006 12:25am
A.S.:
The judge's failure to state in her opinion, "X argument was not addressed by the defense and therefore is waived" PALES in comparison to the failure to brief the issue.

The government said that it couldn't defend on the merits because to do so would reveal state secrets. The judge didn't rule on this claim by the government until the same time as she ruled on the motion for summary judgement.
8.25.2006 12:31am
James Lindgren (mail):
I wrote:


I also thought that the govt's 6/2 motion for clarification was odd.

Greedy Clerk wrote:


So, Jim, Orin, and the other law profs here may find it "strange" that the judge did not bend over bakcwards to the government's disrespectful "motion for clarification" those of us who have practiced in the federal courts do not.

I found the government's motion strange, not the judge's response or lack of one.

And to echo Orin's comment, why must your responses be so consistently ad hominem? You obviously have strong opinions about the merits of arguments. Why not express them without ad hominem attacks on the people who post and comment here?
8.25.2006 12:37am
Mark Field (mail):

When providing evidence beyond the complaint, the court has the discretion to turn the MTD into an MSJ.


Yes, but only for 12(b)(6) motions: "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." FRCP 12(b).


The government said that it couldn't defend on the merits because to do so would reveal state secrets


That doesn't excuse the failure to file any opposition. The government could and should have disputed the SUF with as much particularity as it could; indicated where it couldn't due to lack of discovery and/or privilege; and submitted all legal arguments it could. Filing a cross motion is NOT enough. Beard v. Banks, 126 S.Ct. 2572 (June 28, 2006).
8.25.2006 12:44am
Lev:
Anonymous Liberal

Thanks
8.25.2006 12:51am
Bruce Hayden (mail) (www):
will,

I haven't finished all the new stuff that Orin has posted yet, but I might suggest reading the Defendant's Motion to Dismiss, etc. of May 25 to get an idea of some of the issues that were not addressed in the judge's opinion. Mostly, of course, it involves the State Secret Doctrine, and why the Court shouldn't be able to determine most of the issues that she ultimately did. Needless to say, the opinion is silent on how these points were overcome. But it also brought up a number of other defenses, etc. that were also not addressed in the judge's opinion. And remember, this motion was one of those disposed of in the judge's decision, so it was before her at the time.

Besides, I don't think that Ann's point was ever that Judge Taylor was an activist, per se, but rather, that she appears to be one from her opinion. And, to an extent, that is also what Tribe was saying in his letter about the decision, that from his point of view, the problem with it was how it was written, not what it concluded (Ann may think it was decided incorrectly, but isn't really saying, while Tribe was fairly explicit about his views there).
8.25.2006 12:53am
Christopher Cooke (mail):
Having read some of the briefing, it seems clear the DOJ's strategy was to get an all-or-nothing result--dismissal on state secrets grounds. The ACLU's strategy was to obtain a ruling on the publicly admitted facts and the undisputed facts about who the plaintiffs were and how they could be affected by the TSP. So, once the judge rejected the DOJ's premise that state secrets were necessary to adjudicate the plaintiffs' claims, she could properly rule on whether the publicly admitted facts about the TSP, together with undisputed facts about the plaintiffs, gave plaintiffs standing and the ability to prove their claims. As a former district court law clerk, and as a federal court practitioner for 16 years (at a very large firm, and at the federal government), I see nothing procedurally improper about what the judge did. Essentially, either the plaintiffs should have won or lost, on the standing and substantive issues, based on their undisputed individual facts and the admitted facts about the TSP. I think the Court of Appeals will rule one way, or the other, and not remand. I think the DOJ's strategy ---dismissal on state secrets grounds--- was probably designed with the idea that it could be used nationwide, for each of the cases challenging some aspect of the TSP by someone (e.g., the suit against ATT in San Francisco, a criminal case in the SDNY), to shut down all manner of lawsuits. The problem is, of course, that a "one size fits all" approach may not be persuasive because of the different strategies that different plaintiffs (or criminal defendants) may choose to adopt in their individual cases. It seems clear that the ACLU anticipated this very tactic, and tried to build a case AROUND the state secrets doctrine, by arguing that it didn't matter if the particular plaintiffs' calls were intercepted (they had standing anyway, for various reasons), and that the President and AG admitted to violating FISA (and to facts that are tantamount to admissions they violated the 4th Amendment). So, I think it was fine for Judge Diggs to rule, yeah or nay, on the facts and legal arguments presented. And, that is what the parties wanted: no one was asking for additional time to conduct discovery, for example. In sum, I must agree with those posters who noted that the Bush Administration's politically driven decision to talk about and justify the TSP (to score points against their opponents) appears, temporarily at least, to have backfired on them in the courtroom, and not just here, but also in the Northern District of California case, where Judge Vaughn Walker (a very smart judge) ruled against the state secrets dismissal motion for similar reasons.
8.25.2006 12:58am
Bruce Hayden (mail) (www):
I borrowed links from Orin's post here to the new documents uploaded to volokh.com, and updated my own list of pleadings, etc., which has a couple more of the earlier pleadings. Hope this doesn't violate any of your terms and conditions - but 99% of those downloading will do so from here, so any bandwidth stealing should be de minimis.
8.25.2006 1:00am
Just an Observer:
Also, in the Motion raising the state secrets issue the govt. argued it could not oppose the Motion without divulging state secrets.

A.S.: This is the part of Judge Taylor's rush to judgement that I still fail to understand.

[recites procedural history]


That recitation omits two material steps:

1) Judge inspects secret stuff in camera.

2) Judge finds government claim that the secret stuff is necessary to present a valid defense to be "disingenuous and without merit."

I still wonder where that inspection step fell in the timeline.
8.25.2006 1:07am
Bruce Hayden (mail) (www):
Christopher Cooke

Of course, we don't know for sure what the government's plan really was, but my reading of its pleadings so far is that plan A was as you suggested, a dismissal on State Secret grounds, and plan B, if plan A was rejected, was that a determination be made of what evidence was admissible be made in view of the State Secret privilege before proceeding on the merits.

About the only evidence that I have been able to figure out looks totally clean, from their point of view, is the reduced traffic from known or suspected terrorists to the plaintiffs, which supported the 1st Amdt. claim. But in their motion to dismiss, they pointed out why most of the rest of Plaintiffs' undisputed facts should be inadmissible.
8.25.2006 1:07am
Bruce Hayden (mail) (www):
Also, the reason that I see a remand with directions to apply the State Secret doctrine to the Plaintiffs' undisputed evidence (and show the results) in order to determine whether or not it had been applied correctly. This would seem a lot simpler to me than if they did it themselves. The only way that I could see a dismissal would be if they did it on the grounds that the plaintiffs didn't have standing, after rejecting the 1st Amdt. violation on legal grounds.
8.25.2006 1:13am
Just an Observer:
A.S.: The government said that it couldn't defend on the merits because to do so would reveal state secrets.

So why could DOJ still not do what the judge asked: Write a brief based on everything, legal and factual, that is not secret? Obviously, the brief could renew the claim that secret material could support other arguments.

Even the government motion of May 26 included redacted sections.
8.25.2006 1:18am
jgshapiro (mail):
Assume that the government lost because of a bad all-or-nothing litigation strategy based on its assertion of state secrets privilege, and because it encountered a judge who did not like the TSP and was not predisposed to give the government a second bite at the apple in defending the TSP after rejecting said privilege.

Will an appeals court, or the Supreme Court, really affirm on procedural grounds in a case of this magnitude? After all of the judge-as-umpire analogies offered by Roberts in his confirmation hearing, and by others elsewhere, I just can't believe that the federal courts will let the federal government lose in this type of case on these kind of grounds. The federal government is not really an equal player in the federal courts, it is a little more equal than everyone else. (They don't call the SJ the "Tenth Justice" for nothin'.)

They might well let the government lose on statutory or constitutional grounds -- AFTER the government has had another chance to brief its case, but judges being human and this being a very high profile case about a wartime surveillance program, both of which (the program and the case) are the subjects of pending congressional legislation, I have a hard time buying that the Sixth Circuit or the Supreme Court will say: the government waived the merits by not briefing them, and therefore, the injunction stands.

I suspect the DOJ was thinking the same thing in adopting its live-or-die-by-the-state-secrets-privilege strategy.
8.25.2006 1:23am
alkali (mail) (www):
A.S. writes:

Then the government moves for a stay (WHY? Can OK get that document?).

I will send it to Prof. Kerr.

In response to Just an Observer: unfortunately, the 6/12 hearing transcript is not available online so far as I can tell.
8.25.2006 1:25am
Just an Observer:
jgshapiro,

I don't think anyone is actually saying the government "waived the merits." There were undisputed facts, which the judge found supported a prima facie case for summary judgment; DOJ did not raise procedural issues that some here think it should have; and the arguments on the substantive legal issues -- the AUMF and Article II theories widely ballyhooed in political venues -- were mentioned without much weight or conviction.

DOJ still can raise those legal issues in the Sixth Circuit. I don't know if it is too late to dispute the facts it did not dispute in the lower court.
8.25.2006 1:45am
Just an Observer:
alkali,

Thanks. There also should be a transcript from July 10 filed sooner or later.
8.25.2006 1:48am
alkali (mail) (www):
There also should be a transcript from July 10 filed sooner or later.

Nothing has yet been filed but I suspect it will be the same non-event. It has to do with the odd way that court reporters are compensated (essentially, they sell copies of their work to the parties and interested onlookers).
8.25.2006 1:55am
Kazinski:
OK and JL,
It is obvious that Greedy Clerk suffers from Bush Derangement Syndrome. He doesn't care about the law or legal arguments, he cares about dealing Bush a political setback. This blog goes over the line by trying to look at both sides of the issues involved rather than just settling on any "Bush loses" rational and sticking to it. That is what Judge Taylor did, and the opinion shows it. It is worth analyzing the opinion because it is going to be the starting point for the appellate process, but it certainly isn't worth paying a whit of attention to on its own merits.

This is pretty closely related to EV's post on selecting blogging topics. Not only is GC going to tell you what topics to post on, he is going to take another step and tell you what your position should be. But there is a simple solution greedyclerk.blogspot.com is wide open.
8.25.2006 3:44am
Medis:
jgshapiro,

I agree. Waiver in the court below is a discretionary matter, and I am betting the government will be able to brief whatever it wants before the Sixth Circuit. What they will do with that opportunity is another matter.

On a more general point:

I remain very interested in the government's assertion of the State Secrets privilege with respect to the actual merits. I still haven't detected the slightest hint of an argument that the Program may not involve electronic surveillance within the meaning of FISA, for which the government is not following FISA procedures (nor obtaining any other sort of judicial review before or after the fact, as may be required by the Fourth Amendment). In other words, I see no suggestion that the government is disputing what Gonzales said about the Program.

Rather, the government's basic argument appears to be this: whether or not the President can bypass FISA (and any other applicable statutes or provisions of the Constitution) depends on the nature and magnitude of the threat posed by terrorists, and the degree to which the Program would be helpful in dealing with that threat. Those are secret matters, so the government cannot defend the Program without revealing secrets.

To me, it is quite obvious that this argument depends on the proposition that there is some sort of balancing test involved in these issues. For example, the idea seems to be that whether or not Congress can pass binding laws regulating the government's surveillance of electronic communications depends on whether the President is right in his determination that those regulations are not well-suited to these circumstances. But if you reject that basic balancing approach as a legal matter--as, incidentally, I think one should--then I think you are left with no reason to uphold the government's State Secrets defense, at least as applied to the merits.

Of course, this is not necessarily what people blogging and commenting here (or elsewhere) might think is the government's best defense. In fact, my sense is that some people eventually returned to the assertion that Gonzales' description of the Program should be disregarded precisely because they eventually recognized the weakness of the government's actual defense of the Program.

But again, that doesn't appear to be the government's actual argument, and they seem to be pretty much litigating the case exactly the way they have defended it in public (where they have also basically made the argument that since the President has determined the Program is the best way to deal with the threat in question, Congress (and the Constitution) cannot tell him otherwise).

Which, when you think about it for a second, makes perfect sense. In other words, shockingly enough, maybe the government has been broadly honest about the general outlines of the Program and the basic legal logic behind it, which is why their litigation strategy looks like this.

Again, though, I think some people refuse to accept that possibility because they know, after all we have discussed, that if the government depends on this argument, they are in great jeopardy of losing in court. And I agree with JaO that the government is not exactly thrilled about having to make these arguments in court, likely for the same reason (particularly now, they know they are likely to lose if a court actually gets to the merits of their arguments). But if some were hoping the government was going to revert to a better argument than the ones they have insisted on so far, and perhaps are still hoping that will happen on appeal, I think they may continue to be disappointed.
8.25.2006 7:38am
A.S.:
2) Judge finds government claim that the secret stuff is necessary to present a valid defense to be "disingenuous and without merit."

But this is in the decision, right?

If she found this, why didn't she THEN permit the government to present a defense?

To those who said that the government should have presented what it could based on non-secret stuff: the government said it couldn't. This was not rejected by the Court until the decision, as far as I can tell.
8.25.2006 9:30am
paul (mail):
I have little experience with the Federal Rules of Civil Procedure so please excuse my ignorance if I am missing something obvious. Here is my take of what was going on between the lines.
First, I think it was improper that the Judge did not explicitly rule on the government's motion to dismiss based on the State Secrets doctrine prior to reaching her decision on the merits of the MSJ.
If she had denied the government's motion to dismiss, then I think that the government would have immediately filed an interlocutory appeal, arguing that such an appeal is permitted under the colleteral order doctrine. I haven't researched whether such an interlocutory appeal would be permitted, but it seems to me to fit the requirements for the collateral order doctrine.
My speculation is that the Judge did not issue an interlocutory ruling on the government's motion to dismiss precisely because she did not want this issue addressed on appeal prior to her issuing her decision on the merits.
The government for its part did not think it could appeal the order denying its request for a stay, because it did not appear that this was intended as a ruling on the merits of its motion to dismiss. The Motion for clarification was a round about way of asking the Judge to rule on the Motion to Dismiss or to at least write something that would allow the government to argue the Judge had implicitly denied its motion to dismiss.
I think that Judge acted improperly by not issuing a ruling on the governments state secret's issue prior to addressing the plaintiff's MSJ. By failing to issue such a ruling, the Judge denied the government the opportunity to seek appellate review of the state secret issues.
Again, I am far from an expert in this area so rebuke me gently if I've entirely missed the boat on this.
8.25.2006 9:46am
Just an Observer:
A.S. To those who said that the government should have presented what it could based on non-secret stuff: the government said it couldn't.

No. The government said it needed the secret stuff to mount a valid defense, based on some theory we know little or nothing about. It never said why it could not write a brief based upon what is not secret. Neither have you.

If DOJ lawyers wrote such a brief, it presumably would include the "serious arguments" on the law that commenters such a Althouse claim it has to make. (I notice that you used to place great weight in this blog on the "legal arguments" spun in the so-called "white paper." But now you are eager to disavow their significance because they were based on a huge hypothetical.)

So far Bush and his advocates have only been willing to argue the law through such press-releases, demagogued sound bites, political maneuvering, surrogate op-eds and anonymous blog comments -- everywhere else but in a real court.

The thin pleadings DOJ did make on the merits merely hinted at these "arguments." Taylor's opinion is best read as a challenge to the President's lawyers: If you have a legal argument to make, show up in court and actually make it.

It will be interesting if the President's laywers continue the same tactics in the Sixth Circuit and beyond. Judge Taylor is not the only jurist to rebuke this administration for its contemptuous gaming of the courts. Michael Luttig's extraordinary reaction to the shell game played over Padilla was another.
8.25.2006 10:32am
will (mail):
I think the government lawyers had been watching The World Series of Poker, trying to bluff and intimidate their way out of actually arguing the merits of this case.

"State secrets!!!" is all they seem to want to say. "I would love to argue this case, but state secrets prevent me from doing it!" What a red herring.
8.25.2006 10:58am
Just an Observer:
paul: First, I think it was improper that the Judge did not explicitly rule on the government's motion to dismiss based on the State Secrets doctrine prior to reaching her decision on the merits of the MSJ. If she had denied the government's motion to dismiss, then I think that the government would have immediately filed an interlocutory appeal, arguing that such an appeal is permitted under the colleteral order doctrine.

Other commenters have noted that there was an opportunity for an interlocutory appeal May 31, when the judge denied the government's motion to stay consideration of summary judgment pending resolution of the state-secrets claim. Yet no such appeal was made.
8.25.2006 11:13am
Bruce Hayden (mail) (www):
JaO

A lot of those serious arguments are in the government's pleadings that were before the court at the time she made her decision. They just weren't in the form of a response to the motion for summary judgment, but rather were in the government's motion for summary judgment, reply to plaintiffs' response to that, and its motion to clarify (later later may or may not have been before the court at that point - I couldn't tell). Yes, they could have added more, but given that they didn't know what the judge would ultimately determine to be admissible after filtering by the State Secret doctrine, I think it would have been hard.

Part of the problem that I see with the opinion is that the plaintiffs were asserting multiple theories. For example, who are the harmed parties for the 4th Amdt., FISA, and Title III violations? If the answer is one or more of the plaintiffs who declared a good faith belief that they were surveiled, then the government's respose was first that this is speculative, and therefore not adequate. Secondly, in order to determine whether an actual violation occurred, it would be necessary to utilize information protected by the SS privilege. And, finally, that even if they had been surveiled, it may have been subject to a FISA or Title III warrant, which would again require information protected by the SS privilege. If, on the other hand, she based her findings on a general theory that some people were obviously surveiled (something to that effect was also plead by plaintiffs), then the government's response was that this is speculative and not specific enough to support such a finding, esp. when the result is an injunction shutting down an ongoing international surveilance program deemed necessary for the national defense by the President. But, we don't know which theory she picked, and what evidence she used, because of her failure to first rule on the SS privilege before moving on to the plaintiffs' summary judgement motion (as requested by defendant), and her failure to "show her work".
8.25.2006 11:25am
Bruce Hayden (mail) (www):
JaO said:
No. The government said it needed the secret stuff to mount a valid defense, based on some theory we know little or nothing about. It never said why it could not write a brief based upon what is not secret. Neither have you.
I think that you are misreading the government's briefs. I thought that they were fairly explicit on their view of the privilege, and they went through the various claims by the plaintiffs and showed why material they asserted was protected by the SS privilege was essential in determining the claim, and, thus, the claim had to be dismissed. Different facets of plaintiffs' case had different problems under the SS doctrine, according to the government's filings with the Court.
8.25.2006 11:36am
Hugo Black (mail):
Then the government moves for a stay (WHY? Can OK get that document?).

This is a crucial question. Was the gov't just stalling (i.e. insulting the judge and the legal system) or did they have a legitmate argument to stay? Would love to see that doc.
8.25.2006 11:37am
Just an Observer:
Bruce Hayden,

There are two well-known legal theories that administration advocates have advanced in political venues in support of the NSA prorgam:

1) That the AUMF somehow authorized such surveillance in spite of FISA.

2) That the President has "inherent" constitutional authority under Article II that could override FISA.

I agree that the barebones case for the AUMF-trumps-FISA theory was made here. It just was not argued with much weight. Judge Taylor's explanation rejecting these thin arguments was correspondingly spare. Her opinion -- which is representative of most mainstream legal commentary -- dealt with the arguments in front of her, and that issue at least is presented to the Sixth Circuit.

On the Article II theory, there are several variants floating around out of court. Ultimately, such a theory must articulate a position with respect to the constitutionality of FISA. The government brief continued to make hints without articulating such a position.

Judge Taylor corrected noted that DOJ merely "suggested the unconstitutionality of FISA," and appropriately did not engage an argument that was not really made. Quite obviously, the reason DOJ does not articulate the same argument at which it hints is that doing so would tee up the question for Supreme Court review. That argument, if squarely presented to the current court in a way that could not be ducked, would lose 8-1 or 9-0.
8.25.2006 11:49am
Starwind:
Medis notes:

I still haven't detected the slightest hint of an argument that the Program may not involve electronic surveillance within the meaning of FISA, for which the government is not following FISA procedures (nor obtaining any other sort of judicial review before or after the fact, as may be required by the Fourth Amendment). In other words, I see no suggestion that the government is disputing what Gonzales said about the Program.

Rather, the government's basic argument appears to be this: whether or not the President can bypass FISA (and any other applicable statutes or provisions of the Constitution) depends on the nature and magnitude of the threat posed by terrorists, and the degree to which the Program would be helpful in dealing with that threat. Those are secret matters, so the government cannot defend the Program without revealing secrets.


The TSP is essentially searching for terrorist needles in the global communication haystack, ostensibly doing 'pattern searches' endeavoring to identify terrorist networks, cells, abettors, as well as targets and operational plans - the theory being they communicate with each other in essentially recognizable patterns, with increasing frequency/intensity as an operation nears readiness.

Formerly, with human intelligence leads (agents planted inside cells) there was direct 'triggering' knowledge of whom to wiretap. But with TSP, the technology requires wiretaps first, analysis second (searches) and warrants last if the pattern and content analysis proves fruitful. FISA's provision for wiretap warrants after the fact may be (in the administration's view) too burdensome and problematic.

The reason may be, to electronically search for a needle in a haysack, one must cull the entire haystack first, straw by straw, comparing each against a theoretical 'model' of what the needle looks like. That is not done in 'real time'. Rather the entire haystack (all global communications) are recorded and saved, and then subsequently re-scanned offline (searched) for potential needles.

The TSP, ostensibly, when scanning is not interested initially in the content of any particular communiqué but the pattern of who communicates with whom (starting with "known" terrorists), when, in what sequence, etc. If a pattern match is approximated, then the content of all communiqués in the group comprising the pattern is further analyzed. Warrants for analyzing these communiqués could be obtained under FISA.

The problem at that point is,

1) all communiqués innocent and not have already been recorded and retained in a database and minimally calling patterns of innocent people analyzed, and;

2) some warrant applications could be well after the expiration of FISA's 'grace period', and;

3) the volume of warrants (commensurate with the volume of analyzed communiqués) would likely exceed the capacity of the presently constituted 3-man (iirc) FISA court, and;

4) were FISA to reject some warrant apps (likely), that ostensibly might 'break' the TSP algorithms, because what previously were 'communcation links' in a larger pattern have been declared to be illegally obtained and presumably deleted from the database which inturn would likely prove problematic for subsequent pattern scans, and possibly further impair the justification for other FISA warrant applications.

Even assuming the speculation above is false, I believe it demonstrates that a generic explanation can be composed for the purposes of an in camera, ex-parte brief without divulging actual secrets. If need be, some secrets like wiretap points in AT&Ts SF offices, as alleged, and actual ongoing threats might be disclosed (in camera, ex-parte), but again some of these particulars are already public.

But upon giving such a brief the cat would be out of the bag, and the administation's TSP at the mercy of the courts, and that is what they don't care to risk, understandably. And so they claim and posture that such a brief can't even be composed without revealing states secrets. Regardless, the FISA court is cleared to hear such a brief, and it would be their purview, and the cat would still be out of the bag.
8.25.2006 12:10pm
Bruce Hayden (mail) (www):
Medis said:
I remain very interested in the government's assertion of the State Secrets privilege with respect to the actual merits. I still haven't detected the slightest hint of an argument that the Program may not involve electronic surveillance within the meaning of FISA, for which the government is not following FISA procedures (nor obtaining any other sort of judicial review before or after the fact, as may be required by the Fourth Amendment). In other words, I see no suggestion that the government is disputing what Gonzales said about the Program.
Agreed that they aren't disputing the AG's statements, per se, but rather that he made high level statements, and it is the details that count - and it is the details that are protected by the SS privilege.

Part of their argument as to the 4th Amdt. claim is that 4th Amdt. jurisprudence requires specific injury to specific plaintiffs (instead of generalized injury to undefined people), and both the fact of surveilance and who is surveiled is protected by the SS privilege. Also, there are a myriad of 4th Amdt. exceptions, including, in particular here, exigent circumstances, and those exigent circumstances, and their applicability to certain surveilance of certain people (even if plaintiffs could show they were surveiled, which they can't), is also protected by the SS privilege.
Rather, the government's basic argument appears to be this: whether or not the President can bypass FISA (and any other applicable statutes or provisions of the Constitution) depends on the nature and magnitude of the threat posed by terrorists, and the degree to which the Program would be helpful in dealing with that threat. Those are secret matters, so the government cannot defend the Program without revealing secrets.
Not exactly, and you have to carefully distinguish here between statutes and the Constitution. IMHO, the Constitutional arguments are easier to dispatch here than the statutory ones, from the point of view of the government. Nevertheless, part of the government's argument is that whether FISA can control is to some extent determined by how far into the President's core Article II powers and responsibilites this is, and that can't be determined without recourse to information protected by the SS privilege. In other words, they are pushing a balancing test, instead of what many here see as a bright line test, in Jackson's category III, lowest ebb, situation. And then positing that because the balancing would require inadmissible evidence, no balancing can be done.
To me, it is quite obvious that this argument depends on the proposition that there is some sort of balancing test involved in these issues. For example, the idea seems to be that whether or not Congress can pass binding laws regulating the government's surveillance of electronic communications depends on whether the President is right in his determination that those regulations are not well-suited to these circumstances. But if you reject that basic balancing approach as a legal matter--as, incidentally, I think one should--then I think you are left with no reason to uphold the government's State Secrets defense, at least as applied to the merits.
A minor quibble first. It isn't a question of whether Congress can pass such a law, but rather, whether it applies in this situation because it would hamper the President too much in his core responsibilities to protect this country.

You and I do seem to agree that the government's position seems to imply balancing. The place where we disagree is, of course, whether it is warranted. I still think that when we get far enough into a president's core Article II powers and responsibilities, and far enough from Congress' Article I powers, the balance will found to tip in his favor - despite Hamdan. I do suspect though that this fundamental debate will not be resolved that quickly. We shall see.
Of course, this is not necessarily what people blogging and commenting here (or elsewhere) might think is the government's best defense. In fact, my sense is that some people eventually returned to the assertion that Gonzales' description of the Program should be disregarded precisely because they eventually recognized the weakness of the government's actual defense of the Program.
The government's justification for not ruling the TSP illegal based on the AG's description is primarily that it is the details that count in this case, the details are protected by the SS privilege, and his description of the program is a high level description that purposely avoided those specifics.
But again, that doesn't appear to be the government's actual argument, and they seem to be pretty much litigating the case exactly the way they have defended it in public (where they have also basically made the argument that since the President has determined the Program is the best way to deal with the threat in question, Congress (and the Constitution) cannot tell him otherwise).
As noted above, that is a bit simplistic.
Which, when you think about it for a second, makes perfect sense. In other words, shockingly enough, maybe the government has been broadly honest about the general outlines of the Program and the basic legal logic behind it, which is why their litigation strategy looks like this.
I don't see that. My view is that their first concern is the operational security of the specifics of the TSP, and that is the basis for their reliance on the SS privilege. Of course, we are all reading tea leaves here, and our personal biases come into that reading. So, I am more likely to trust the administration than many are here.
Again, though, I think some people refuse to accept that possibility because they know, after all we have discussed, that if the government depends on this argument, they are in great jeopardy of losing in court. And I agree with JaO that the government is not exactly thrilled about having to make these arguments in court, likely for the same reason (particularly now, they know they are likely to lose if a court actually gets to the merits of their arguments). But if some were hoping the government was going to revert to a better argument than the ones they have insisted on so far, and perhaps are still hoping that will happen on appeal, I think they may continue to be disappointed.
As usual, let's agree to disagree here, and get some work done today.
8.25.2006 12:12pm
paul (mail):
Just an Observer:
paul: First, I think it was improper that the Judge did not explicitly rule on the government's motion to dismiss based on the State Secrets doctrine prior to reaching her decision on the merits of the MSJ. If she had denied the government's motion to dismiss, then I think that the government would have immediately filed an interlocutory appeal, arguing that such an appeal is permitted under the colleteral order doctrine.

Other commenters have noted that there was an opportunity for an interlocutory appeal May 31, when the judge denied the government's motion to stay consideration of summary judgment pending resolution of the state-secrets claim. Yet no such appeal was made.

It is not obvious to me that the government could take an interlocutory appeal of the denial of the stay. To be a collateral order, the order must: "finally determine claims of right separable from, and collateral to, rights asserted in the action" An order denying a stay does not "finally determine" any claim of right.
8.25.2006 12:13pm
DJR:
Christopher Cook's is the correct analysis.
8.25.2006 12:21pm
Bruce Hayden (mail) (www):
Then the government moves for a stay (WHY? Can OK get that document?).

This is a crucial question. Was the gov't just stalling (i.e. insulting the judge and the legal system) or did they have a legitmate argument to stay? Would love to see that doc.
A minority of one, but I don't see them as stalling. The basic problem is that until the State Secret question is resolved, and then applied to the evidence submitted by the plaintiffs, the government really can't respond fully. In order for a judge to come to a legal decision s/he must apply the law to the facts. But in this case, the admissibility of 95% of the facts is disputed. They are left with trying to keep those 95% out at the same time that they have to respond to 100% of the facts proposed by the plaintiffs. The result is a lot of hypothesizing: "we don't think this fact is admissible, but if it were, then we would make this defense if this other fact is admissible, but a different one if it isn't". That sort of thing. Their point was really that it would clean up the litigation a lot and make things easier on everyone, including the Court, if the judge would just rule on what is admissible first, and then everyone could tailor their briefs accordingly.

Also, of course, there was the implication that most, if not all, of the case would disappear after application of the State Secret doctrine. And that is what a lot of pundits are faulting the government for, putting so many eggs in that one basket. Nevertheless, I see their basic point as valid - that it is almost impossible to defend this sort of case when you don't know what most of the admissible facts are.
8.25.2006 12:26pm
volokh watcher (mail):
What's interesting is DOJ is moving on to the 6th Circuit -- and not filing a petition for cert. See 28 USC 2101(e) (petition for cert may be filed anytime prior to judgment by a CofA). [Orin - correct me if I'm wrong here.]

That strikes me as part of the broader strategy to do two things.

First, play a "four corners" offense. The administration has clearly been in no rush to get any rulings on the merits of the legal issues. Hence, the razor-thin arguments in the DCt before a judge whom they could attack politically in the event the govt lost.

If the Administration were serious about getting a speedy "final" ruling on the merits, DOJ could have filed for a cert petition and skipped the 6th Cir altogether. (But Justice Stevens and Hamdan loom large.)

Instead, it's now off to the 6th Cir.

And the 6th Cir. would seem to be a more receptive place for the Administration's case.

Right now, the en banc 6th has 14 active judges: 1 Carter, 1 Reagan, 1 Bush-I, 5 Clinton, 6 Bush-II. Those are pretty good odds for the Administration.

If the Administration should lose before a 3-judge panel, en banc review would seem to be the next step.

Then, whatever happens, it's on to SCOTUS.

My point, though, is that this issue is at least a couple of years--or more--away from final resolution.

So if you're the Administration, that's what you'd want.

Delay, delay, delay.

But, it's delay coupled with a strong dose of politics.

Why make much of an argument before a DCt judge who fits nicely into a Rovian profile of "activist" (despite enforcing a statute enacted by a popularly-elected branch), whose decision can then be kicked around as politically driven -- regardless of whether that's true.

By the time the issue hits SCOTUS, Justice Stevens may have been replaced.
8.25.2006 12:27pm
Third Party Beneficiary (mail):
Something that I haven't seen discussed, but which seems highly relevant to the applicability of the state secrets privilege is the nature of the claims. The state secrets privilege was originally developed as a species of sovereign immunity in the context of contract and tort cases. The claims here are for constitutional violations based on a pattern of conduct, not specific technical details of the program. An analogy would be a 42 USC 1983 lawsuit against a police officer for beating a suspect -- whether the police officer used a nightstick, a baseball bat, or a lead pipe is most likely irrelevant to the question of liability; it's the beating that's at issue, not the object used in the beating. Similarly, whether or not the surveillance here used communications protocol X53J or V21A.1 is irrelevant to the question of whether the surveillance was made without a warrant, which the is actual fact at issue for the case.

Another thing I haven't seen discussed is the issue of treating the state secrets privilege like attorney-client/work product privilege, i.e., while the exact contents of classified documents may be privileged, the general facts represented by those documents are not. I mean, there are presumably classified documents out there that state, "Beijing is the capital of China," but I don't think any party to litigation could refuse to answer the deposition question, "What is the capital of China?" on the grounds that information is included in a classified document.
8.25.2006 12:35pm
Christopher Cooke (mail):
Paul: on the stay issue, the government would seek a writ of mandamus from the 6th Circuit, it would not technically file an appeal from a final judgment. I have sought such writs, and there is a high standard for getting them, but I would think that the government's petition would be carefully considered given the stakes, the TSP, and the high profile nature.

I tend to agree with Medis' analysis: from reading the briefs, the DOJ was basically living with the AG and President's public pronouncements about the TSP, but arguing that the details mattered, and they couldn't reveal those without compromising state secrets, which is why the case should be dismissed. That seems to imply that the nature of the terrorist threat, the operational details of the TSP, and presumably, the practical inability of resorting to the Foreign Intelligence Surveillance Court (which you would only know, if you knew the operational details of the TSP) were, in the DOJ's view, relevant to the legal issues before the judge and state secrets, hence the DOJ's strategy. On the last point (why FISA isn't good enough), I think the DOJ would argue these details are needed to understand why there should be an exigent circumstances exception to the 4th amendment warrant requirement for this type of program, given the nature of the threat. I predict dismissal of the 4th Amendment and APA (FISA) claims on standing grounds; I don't know enough about the 1st amendment claims, but they seem weak enough to be addressed and dismissed on the merits.
8.25.2006 12:45pm
Mark Field (mail):

It is not obvious to me that the government could take an interlocutory appeal of the denial of the stay.


I agree, but writ review was still available as an option. Given the circumstances, I'm surprised the government didn't seek that.


I think it was improper that the Judge did not explicitly rule on the government's motion to dismiss based on the State Secrets doctrine prior to reaching her decision on the merits of the MSJ.


Remember that (1) the MSJ was filed months before the Motion to Dismiss, and (2) the Motion to Dismiss was not a proper opposition to the MSJ.

Under the FRCP, the defendant ALWAYS has the ability to file a motion to dismiss before any MSJ can be filed; the rules deliberately structure the time deadlines that way. The government delayed quite a while before bringing the Motion to Dismiss (I assume it had an extension of time, since otherwise the Motion was untimely). During that delay, it sought and received two extensions of time to oppose the MSJ. It never did so.

As others have already commented, this behavior is just inconceivable for an ordinary litigant. I'll go further and say that any lawyer in private practice who did this would, justifiably, be sued for malpractice.
8.25.2006 12:47pm
Medis:
I think we need to more carefully separate out three different possible ways in which the States Secrets privilege could be relevant: standing, the plaintiff's prima facie case, and the government's defenses. I also think it is worth keeping in mind that Judge Taylor did not hold that any secret material should be given to the plaintiffs, but rather that they didn't need that material for this part of their case (as opposed to the data-mining part of their case, which she dismissed).

On the standing issue, Judge Taylor found that the plaintiff's own reports of their communications combined with the government's public admissions about the Program established standing. This is a complex issue, but I don't see a State Secrets problem as long as the plaintiffs are content to rest on these facts. And I think it is obvious the government could at least brief why the undisputed facts in the record were not adequate to establish standing, even as it argued that the plaintiffs would need secret material to actually establish standing. Indeed, these are perfectly compatible arguments which can be made without the government revealing any secret material.

As an aside, if the Sixth Circuit finds that the plaintiffs must establish that their communications were in fact surveilled in the Program, not just that they and/or the other parties to their communications had adequate reason to believe that their communications could be surveilled, then this could be a way for the plaintiffs to lose on State Secrets grounds.

On the plaintiff's prima facie case, again Judge Taylor found that the government's public admissions about the Program were sufficient. This is also a complex issue on the merits, but the plaintiffs appear content to rest on the available public information and I have yet to see the government disputing its prior admissions. And again, I think the government has no excuse for not briefing the merits of the plaintiffs' prima facie case as based solely on the undisputed facts.

As an second aside, obviously the Sixth Circuit could disagree on the merits with some or all of Judge Taylor's decision (although as we have discussed, I think the statutory arguments alone are enough for the plaintiffs). I also think here is where the government will get a "mulligan", if they choose to use it--which they may not, for fear of actually getting an adverse ruling on the Legal-Theories-That-Must-Not-Be-Named.

Finally, I think the government's "best" States Secret argument was with respect to its defenses, because at least there the plaintiffs cannot simply choose to rest solely on the undisputed facts and the public record. But here is where Judge Taylor actually viewed the government's material, and concluded without reservation that it did not provide a defense. And again, the government could at least provide legal arguments establishing the existence of the defenses it claims to have, even if it could not reveal its grounds for the factual predicates of the defenses (which, again, seem to be solely regarding matters such as the nature and magnitude of the threat and the helpfulness of the Program).

As a final aside, it will be interesting to see if the Sixth Circuit reviews the secret material as well, and whether it reaches the same conclusion as Judge Taylor. As I noted above, it is entirely possible to think that the government's secret material is in fact irrelevant, provided that as a legal matter, these issues are not subject to a balancing test.

In sum, I think there are some specific issues that the government may not have been able to brief without revealing secret material. But the standing and prima facie merits arguments actually made by the plaintiffs and used as the basis of Judge Taylor's decision could have been addressed by the government without revealing any secrets. In contrast, the government plausibly could not completely brief its defenses without revealing secrets, but on that specific point we have a specific ruling by Judge Taylor.
8.25.2006 12:47pm
Anderson (mail) (www):
Christopher Cook's is the correct analysis.

Seconded. If his lack of paragraphing led anyone to skip his comments, go back &read 'em.

--The timeline we had a few posts back referred to some gov't pleading where they raised Rule 56(f). Adobe's search function isn't turning it up in the above pleadings; for that matter, I thought that this pleading was June 6.

If anyone knows what pleading that is, RSVP, merci beaucoup.
8.25.2006 1:00pm
Medis:
Bruce,

In this case, I don't see why we can't actually agree to agree. We seem to agree that the government's theories on the merits depend on various balancing tests, and that their State Secrets argument with respect to the merits (as opposed to standing) depends on their claim that they can't show how these balancing tests would apply to the Program without revealing secret material. Of course, if they are wrong about there being a balancing test that would save the Program, then their State Secrets arguments lose their necessary legal predicate, and I strongly suspect that is what Judge Taylor concluded.

And accordingly, where we disagree, of course, is over whether the relevant issues are in fact subject to a balancing test (although I think the Fourth Amendment issue is close--it depends on whether you can categorically declare warrantless surveillance where a statute requires a warrant to be unreasonable). I'll note that I would be happy to present my arguments to a federal court, including the Supreme Court, because I am quite confident that I would win at least on the statutory grounds--and I'm not sure the same can be said of the government. But in any event, I think we do agree on the central issues.
8.25.2006 1:06pm
Just an Observer:
Bruce Hayden,

Your assertion that "the admissibility of 95% of the facts is disputed" (a completely made-up number, AFAIK) ignores or distorts rather important parts of the record.

1) The judge found a prima facie case for summary judgment based on undisputed facts, most of them provided in public statement by adminstration officials. No secrets -- no discovery at all -- was sought to establish this case.

2) Nothing in the DOJ brief that I can find even says clearly that the secret stuff is all "facts." It's just secret stuff that is claimed to relate generally to the tapestry of the case. There certainly was no assertion that the secret stuff would contradict the undiputed facts establishing the prima facie case above.

3) The judge did inspect the secret stuff and found that its disclosure was not necessary for the government to mount a valid defense. Having seen the secret stuff, she even rebuked the government for making the assertion.

The state-secrets doctrine is an evidentiary privilege that says some secrets may be withheld from disclosure. It is not a general rule that says the case must stop if the government says it has secrets. The judge agreed with the government that secret stuff exists, but the government failed to persuade her that it mattered to the case.

Suppose the secret stuff comprised the following:

a) The government has information that Al Qaeda has key personnel at certain locations in Pakistan.

b) The FBI is investigating a tip that Osama bin Laden is driving a cab in the District of Columbia.

c) The Pentagon has a plan to nuke Iran.

d) There is a secret OLC legal memo allowing torture, detention camps and warrantless domestic-to-domestic wiretapping, based on some novel theory never made public.

All of that is secret, and privileged; none of it would provide a reason to stop this case; and it arguing that it would is "disingenuous and without merit."
8.25.2006 1:07pm
woodsey (mail):
Has the government explicitly admitted or denied that TSP violates FISA? If so, disregard the rest.

With no public declaration about such a violation, it might reveal a state secret to even deny the program violates FISA because that denial would set parameters on what the program cannot be.

Without an admission of violation, how could the judge rule that FISA was violated?

From my reading of her opinion, without a FISA violation there could be no finding of a 4th Amendment violation without additional facts, which I assume would be state secrets. With no 4th Amendmet violation, there is no 1st amendment violation. With no 1st amendment violation, there can be no standing.
8.25.2006 1:20pm
alkali (mail) (www):
One interesting thing is that DOJ moved twice for an extension of its time to respond to the complaint, was opposed (unscuccesfully) by Plaintiffs both times, and Plaintiffs even moved for reconsideration of one extension (again, unsuccessfully). You can read about this on the docket.

In ordinary civil litigation, short extensions of time to respond to a complaint (say, 2 weeks to 2 months) are not uncommon and are routinely stipulated as a matter of professional courtesy. The exceptions tend to be extremely urgent matters like litigation related to corporate takeover fights.

I have not sent the briefs to Prof. Kerr because there are a lot of them (and they're short and not very interesting), but the gist is that the ACLU argued that its compplaint is very urgent because, among other examples, attorneys speaking to clients on the phone can't be sure their conversations are confidential as long as the program continues. I think this has at least some merit as an argument: let's say the government installed a camera in your bedroom -- would you be willing to wait six months to have a judge hear the question of whether it ought to be removed? (I agree that's an more extreme case: the point is that this is a case about ongoing and potentially offensive conduct and not, say, a fight about who owes money to whom.)

DoJ argued that a limited number of attorneys are available to respond to these kind of suits, which are proceeding all over the country, and so a short extension was appropriate. The court agreed with DOJ. I would have too.

I think this undercuts any suggestion that Judge Taylor was hell-bent on denying the government its procedural rights. If there is a problem with Judge Taylor's ruling, the problem is with the substance, not any failure by the parties or the judge to abide by the Federal Rules of Civil Procedure or routine civil litigation custom and practice.

That little fight is interesting to me because it is certainly an aggressive litigation tactic on the part of the ACLU. If I were the lawyer for the ACLU, I might refuse to agree to the extension, tell DOJ it would have to get relief from the court, and file something denominated a "response" (as opposed to an "opposition") saying essentially that while we respect the Court's discretion to manage the docket, this case involves ongoing offensive conduct and DOJ shouldn't be permitted to drag the case out. That would make the substantive point to the court without setting yourself up to lose a motion which you can be reasonably certain you will lose.
8.25.2006 1:20pm
Julian:
Hey, thanks for posting these Orin. Very helpful.
8.25.2006 1:29pm
Just an Observer:
Medis,

When you discern that the government has a secret balancing-test theory, you are more skilled than I am in reading between the lines. I have not distilled even that much from what DOJ wrote. Could you explain how you came to think this?
8.25.2006 1:29pm
Starwind:
Medis writes:

On the standing issue, Judge Taylor found that the plaintiff's own reports of their communications combined with the government's public admissions about the Program established standing. This is a complex issue, but I don't see a State Secrets problem as long as the plaintiffs are content to rest on these facts. And I think it is obvious the government could at least brief why the undisputed facts in the record were not adequate to establish standing, even as it argued that the plaintiffs would need secret material to actually establish standing. Indeed, these are perfectly compatible arguments which can be made without the government revealing any secret material.

The TSP is essentially a global "electronic fishing expedition". The defendants have not disputed that. The plaintiff's have said, "Ok, we're fish and here is specific proof of harm because others likewise view us as fish targeted by a known, undisputed fishing expedition". The government has not once argued any actual limits or selectivity on what communications are culled.


As an aside, if the Sixth Circuit finds that the plaintiffs must establish that their communications were in fact surveilled in the Program, not just that they and/or the other parties to their communications had adequate reason to believe that their communications could be surveilled, then this could be a way for the plaintiffs to lose on State Secrets grounds.


I don't see how a competant court could not find the plaintiff's have standing. If, hypothetically, it were public knowledge, undisputed by the state, that warrantless house-to-house searches were conducted across an entire city, and someone said, "Ok, I'm a lawful resident within that city and therefore I was subject to an unlawful search" why must a specific individual prove their membership in an otherwise undisputed, non-specific, general class?

Now if at some point the court requires NSA to show reasonable cause that the specific plaintiffs were in fact not surveilled, I don't see how NSA can do that without revealing secret specifics of who was in fact surveilled and that plaintiffs are not included in that list, or that contrary to public disclosures, the electronic taps are not generic but selective.

I don't see how the NSA can make this last argument as the technology for "tapping" photoelectronic fiberoptic links (as in AT&Ts SF offices) does not lend itself to selectivity - either all calls are copied or no calls, that is the nature of fiber optic links.

But ultimately, it would seem standing pivots on whether the courts (SCOTUS) will permit the government to hide behind an undisputed lack of specificity, while burdening the plaintiff to prove specificity. If allowed, the government can then "lawfully" wiretap everybody, and claim states secrets on specific identities of everybody, and hide behind the plaintiffs inability to specifically prove they're a member of "everybody".

The state could then "lawfully" conduct house-to-house searches across the land, publically disclosing they're searching "everybody", taking care to always conduct the search when someone (or their neighbors aren't home or looking), and then defy plaintiffs to prove they were in fact specific targets of what is publically admitted in general. I can envision the government responding, "Well, *maybe* we just haven't gotten to your house yet, and you can't prove otherwise, can you". And so the plaintiff's house may or may not have been searched, yet, under an admitted non-exclusive house-to-house search policy.

But can't policies (or programs like the TSP) be recognized as potentially harming as yet identified plaintiffs?

Where would the sense be in ruling plaintiffs must overcome a burden of specificity while allowing the government the refuge of non-specificity?
8.25.2006 1:31pm
alkali (mail) (www):
Apropos of Starwind, to point out the issue that also troubles me most:

Suppose the feds start doing Patently Unconstitutional Thing X, by which I mean the kind of thing which if I described it explicitly would get me tagged for a Godwin's Law violation.

I sue the feds to enjoin X. The feds say, "um, state secrets."

Presumably the court has to do some kind of analysis to determine if the state secrets doctrine is applicable.

1) What is that analysis?

2) How does that differ from what Judge Taylor actually did?

3) And, given that her decision apparently rested in part on examination of non-public evidence, how do we know that it differs?
8.25.2006 1:43pm
Mark Field (mail):

Has the government explicitly admitted or denied that TSP violates FISA?


At his press conference on December 19, 2005, 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, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence."

In short, yes it violates FISA subject to the AUMF argument.
8.25.2006 1:49pm
Wonderland (mail):
It seems to me that standing is the only real issue in this case. But that troubles me, because I'm not sure how any plaintiff could establish standing to challenge this (or a similar) program if the very fact which they would be have prove to establish standing -- that the plaintiff was, indeed, personally surveilled -- is a state secret that the government refuses to disclose.

I mean, let's look at a hypothetical situation with facts more stark than the current case. Imagine that there are several catastrophic terrorist attacks within the US, and evidence conclusively proves that the attacks were carried out by several cells of home-grown American Muslim fundamentalists. And further imagine that, subsequently, the Executive publicly claims the authority, under Article II of the Constitution, to electronically intercept all purely domestic calls involving Muslims without getting warrants as required by FISA or Title III.

Is it conceivable that plaintiffs bringing suit to enjoin the program would be thrown out of court for lack of standing, because the government refused to disclose whether those particular plaintiff had indeed been surveilled? Would the federal courts be powerless to redress such statutory and constitutional violations simply because the combination of widely generalized harm and government secrecy makes it impossible for an individual to prove standing?

Taking away the purposefully inflammatory nature of the hypothetical facts above, and assuming that what the plaintiffs in the ACLU v. NSA case allege is true, isn't this precisely what is at stake in the instant case?

And, given this, isn't the more flexible standing approach taken by the judge in this case the correct one?
8.25.2006 1:55pm
Dan Hamilton:

unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress


It is only breaking FISA if a warrant would be required and there was no "authorized by statute or by Congress"
that said a warrant wasn't required.

Also he is saying "there is" a "otherwise authorized by statute or by Congress".

This is not a admission that FISA was broken. It is an admission that FISA didn't cover what the NSA was doing.

The Judge would need to show that Gonzales was wrong about the "otherwise authorized". Then FISA MIGHT be broken by the NSA.
8.25.2006 2:00pm
Wonderland (mail):
I see Starwind beat me to the punch, making a similar, if not virtually identical, point. A point which, I think, will be the paramount question in this case. Because it seems fairly clear that, if standing is established, the DOJ has no good legal argument to defend on the merits, especially in light of Hamdan.
8.25.2006 2:03pm
Christopher Cooke (mail):

It seems to me that standing is the only real issue in this case. But that troubles me, because I'm not sure how any plaintiff could establish standing to challenge this (or a similar) program if the very fact which they would be have prove to establish standing -- that the plaintiff was, indeed, personally surveilled -- is a state secret that the government refuses to disclose.


I think you hit the nail on the head: there may very well be violations of FISA and the 4th Amendment here, on a vast scale.

So, will the Court of Appeal and the Supreme Court use standing to duck these issues by essentially saying, the plaintiffs need to know state secrets to prove standing--i.e., were they surveilled---but they aren't entitled to know such secrets, so their case is dismissed?

Or, will they get to the merits of these issues and likely hand a big defeat to the President? I predict the standing route will be tempting for some judges, and the likely result. Professor Jonathan Varat (of UCLA) wrote a law article on how courts use standing as an excuse to refrain from deciding controversial issues that might impact their legitimacy with the public. I think this is such a case.
8.25.2006 2:16pm
Mark Field (mail):

This is not a admission that FISA was broken. It is an admission that FISA didn't cover what the NSA was doing.


Gonzales specifically said, in relevant part, "the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance..." While FISA does contain an exception for cases which don't require a warrant, Gonzales said this program does require one (absent the AUMF, of course). Thus, FISA does cover the program.

Heck, if FISA did NOT cover the program, what's all the fuss about? The whole dispute exists precisely because FISA does cover it.
8.25.2006 2:18pm
Medis:
JaO,

As an aside, I should note I am in fact just guessing, but it is an informed guess.

I think we can look primarily at their Motion to Dismiss.

First, it is interesting to note where text is redacted. For example, looking on Page 9, there is text redacted at the end of the section titled "The Continuing Terrorist Threat Posed by al Qaeda." The next two sections, "Intelligence Challenges After September 11, 2001" and "NSA Activities Critical to Meeting Post-9/11 Intelligence Challenges", are entirely redacted.

Second, we can look at the merits arguments, such as they are. For example, on pages 35-38, the government suggests various arguments to the effect that the court would have to understand the nature of the threat (which they claim amounts to a state of war), and then also the various facts about the Program (which they claim would show why the Program allows the government to deal with this threat in a way FISA would not). Only then, the government argues, could the court understand how "the President's decision not to cede control over this vital intelligence collection effort to the potential delays and uncertainties of a judicial process is well-supported and constitutional."

So, I read into this extended argument the idea that whether or not the President has to follow FISA (and similarly whether or not he ever has to seek warrants under the FOurth Amendment), depends on what I have called a balancing test (although it might also be called a "total circumstances" test, and so on). Basically, as I see it they are saying we have to weigh the merits of FISA and the procedures it contains, or indeed any judicial process, against the nature of the threat and the benefits of bypassing those procedures (whether statutory or constitutional). And the government contends that if the court knew what the President knew, and performed this assessment, it would agree that the President was authorized (either by the 2001 AUMF or perhaps just the Constitution itself) to bypass FISA (and any other constitutional requirements to the effect that he should be getting something like a warrant).

That, at least, is what I got out of their Motion brief.
8.25.2006 2:26pm
Medis:
Starwind:

In general, I don't think that we know that your description of how the Program works is accurate (it may be a good guess, but I don't think it has been established). But the government has loosely described some selectivity: in various places, they have suggested something along the lines that the targets are people who are suspected of being terrorists, members of terrorist organizations, or of being affiliated with terrorists/terrorist organizations.

Obviously, that is a broad description, particularly the last part (what does it take to be suspected of being affiliated with a terrorist organization?). And I gather the plaintiffs basically argued that they contact enough people who fit that broad description that they reasonably believe their communications are subject to surveillance.

On a general point:

I think it is both right that Gonzales affirmed that the surveillance was covered by FISA and also that he claimed that FISA wasn't violated despite the fact that they didn't follow the FISA procedures. As they subsequently made clear, their primary theory at the time was probably that the 2001 AUMF gave them the authorization they needed to bypass FISA. As we subsequently discussed, that argument was always unlikely to fly in light of the "exclusive means" language in Title III, and it was pretty much dealt a death blow in Hamdan (where the court quickly dismissed the idea that the 2001 AUMF could somehow trump a more specific statute on a particular issue).
8.25.2006 2:39pm
Mark Field (mail):
Medis, I agree.
8.25.2006 2:53pm
Starwind:
Medis writes:

But the government has loosely described some selectivity: in various places, they have suggested something along the lines that the targets are people who are suspected of being terrorists, members of terrorist organizations, or of being affiliated with terrorists/terrorist organizations.

Yes, they've so characterized their targets - the fruits of analyzing their communiqués culled from the larger unrestricted universe of all communiqués collected, saved and analyzed for pattern and content.

The issue is not how the administration characterizes the fruits of their warrentless surveillance, it is the unrestricted scope and scale of the warrentless surveillance to begin with.

Of course terrorists are the targets. That goes without saying (being charitable).

But a vastly larger community than just terrorists are being surveilled, without warrant - no selectivity on the communications tapped, collected and saved has been acknowledged.
8.25.2006 2:53pm
Medis:
Starwind,

But have they admitted the Program works that way?
8.25.2006 3:04pm
Just an Observer:
alkali: Suppose the feds start doing Patently Unconstitutional Thing X, by which I mean the kind of thing which if I described it explicitly would get me tagged for a Godwin's Law violation.

I sue the feds to enjoin X. The feds say, "um, state secrets."


This hypothetical gets to the troubling heart of the state-secrets issue in general, but I don't think ACLU v NSA reaches that heart. The government wants to morph the case into a state-secrets case, but it really is not that at all.

To begin with, the President and the AG, along with other senior officials, publicly and proudly have announced they are doing the NSA program, and no one disputes that it is ongoing.

The plaintiffs are not asking for secret material, and the judge is not proposing to give it to them.

Now, one can hypothesize cases that do fit the Godwin standard and would depend on discovery of state secrets to litigate. There some of the existing precedent -- strong but not settled -- that supports the state-secrets privilege is very troubling because it seems to rule out a balancing test between the harm of allowing X and the state's interest in protecting secrets.

The question of constitutional harm versus security interest is being raised, at least incrementally, in Judge Walker's recent ruling on state-secrets privilege in the Hepting case. The way I read Walker's opinion, he is trying to ooch toward a balancing test in spite of precedent. His ruling is being appealed to the Ninth Circuit.
8.25.2006 3:32pm
Starwind:
Medis:

But have they admitted the Program works that way?

The technology requires that it work that way.

The bulk of modern public and private communications travels over telco backbone trunks composed of fiberoptic links.

Wires carrying electromagnetic wave signals are lossy. One can measure by the radiative losses, capacitance changes, and even "stealing" some of the voltage amplitude off the original signal (by making electrical contact with the bare copper wire, say with an aligator clip), at any point along a wire and obtain a true sample of the original signal. The original signal (albeit weaker after being sampled and losing some of its energy) continues to its destination.

This signal may be only one communication (if the wire tapped is going into your house phone) or it may be multiple multiplexed communications (if the wire tapped is at a neighborhood junction box, etc.).

But unlike copper wires, fiberoptic transmissions can not be sampled or sensed. There is no equivalent "aligator clip" that can grip around a fiber optic cable and "sense" the light waves within. A light wave or photon travelling down a photo-optic fiber is not lossy. It doesn't radiate and to sample it means to interrupt and destroy it. Technologically, while you can "listen in" on an electromagnetic wave signal, you cannot "listen in" on a photo optic lightwave. Think about how would you "sample" a laser beam? You can't, without interrupting it (with mirrors) copying it (with prisms). And laser beams aren't tucked away inside fiber optic cables.

That is why the NSA has to get the cooperative participation of AT&T, et.al. to install fiberoptic taps in telco backbone centers and nodes (like in SF). Even if NSA could find a single fiber optic strand going into your house, technologically it can't be listened in on. It must be interrupted, copied, and resent.

So a fiberoptic 'tap' is used which essentially receives the original lightwave(s) essentially destroying that particular lightwave in the process of receiving it, but it then makes two copies of what was received and destroyed, sending one copy on to the destination, while shunting the second copy off for storage and analysis.

Because of the informational capacity of fiberoptics, each fiber strand can carry thousands of simultaneous communications. This is similar to the older wire multiplex concepts except that the numbers are vastly higher for fiberoptics.

Fiberoptic multiplexing is essentially two fold. Within a single lightwave, fragments of conversations, emails, website posts, are transmitted serially, with each fragment having a header and footer that contains origination, destination plus other control and management properties, as well as the information content of the fragment. Then, depending on the fiberoptic technolgy and equipment, multiple multiplexed lightwaves (at different frequencies) can share the same single fiberoptic strand.

But to know the origination/destination info for pattern analysis, and the content (to look for phrases like "suitcase nuke") the entire multi-strand fiberoptic cable must be interrupted, information copied, then the information streams demultiplexed, fragments extracted and reassembled into entire communications, then analyzed.

All that is done offline, only after all communications have been surveilled can they be selectively analyzed and filtered.

The foregoing is all based on how current telco fiberoptic and telecommunication technology works, and its inherent limitations and requirements.

But (and now I'm speculating on the TSP behavior) all communications are retained in data storage for subsequent re-analysis - archived and never discarded. Ostensibly the TSP doesn't know when an otherwise innocent citizen may turn out to be a member of a sleeper cell.
8.25.2006 3:54pm
Medis:
Starwind,

But as far as I know, the government has never even confirmed that this particular program involves tapping fiberoptics.

Anyway, I just wanted to check that you were speculating (which is fine, but it isn't going to have much legal significance).
8.25.2006 4:00pm
dbm (mail):
Anderson,

Don't know if you've found this already, but the only 56(f) reference I've seen is in the NSA's June 2nd Motion for Clarification. It's one paragraph on page 8, and not what I expected. I had assumed, based on the normal use of the rule, that the NSA had argued that 56(f) would entitle it to a continuance of the SJ to give it time to conduct discovery, but the NSA simply hadn't specified what discovery it sought (the point has been made that the gov't already controls all the facts, so discovery by the gov't is kind of pointless).

That turns out not to be the case at all. The NSA brief restates the core of 56(f):

"where it 'appears from the affidavits ... 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 make such other order as is just."

The italics are from the brief, and indicate what relief the NSA actually sought. The NSA did not ask for a continuance under 56(f), as I expected. Instead it used the "such other orders" language to make yet another argument and request for dismissal based on the states secrets argument.

I don't think I've ever seen so many eggs crammed into a single basket.

Great discussion going on, by the way.
8.25.2006 4:06pm
Starwind:
Medis:

But as far as I know, the government has never even confirmed that this particular program involves tapping fiberoptics.

No, I don't believe the government has confirmed they are tapping fiberoptics, but the taps themselves are a matter of public record:

AT&T leaks sensitive info in NSA suit
8.25.2006 4:08pm
Anderson (mail) (www):
Thanks, dbm, that's been eating at me, and work's kept me too busy to read the briefs. (Hey, Adobe? Your new search engine sucks. Bring back the 5.0 version.)

There must be some really dispirited lawyers working on these NSA cases, unless they're gung-ho John Yoo types who actually believe all this Article II stuff.
8.25.2006 4:13pm
Medis:
Starwind,

Asd an aside, judging from that link, AT&T didn't admit their existence, but just suggested that if they existed, they could have benign purposes.

Anyway, the more important point is that the Program in this lawsuit is not necessarily connected with what is going on in various other lawsuits.
8.25.2006 4:15pm
John Lederer (mail):
Quick note to Medis:

I have installed fiber optic splitters (taps). They are a passive device that use optics ( a "beam splitter cube") to split the signal. Except for installation there is no interruption of the signal and no copying. The signal is weakened in rough proportion to the design of the tap (50/50 and 80/20 are common). About $500.
8.25.2006 4:41pm
John Lederer (mail):
I hasten to add, not as surveillance device!
8.25.2006 4:43pm
Starwind:
Medis:

Asd an aside, judging from that link, AT&T didn't admit their existence, but just suggested that if they existed, they could have benign purposes.

Agreed, AT&T has not admitted to any particular purpose behind the taps and neither comfirmed nor denied their existance. But the judge notes here Court Order denying Govt and ATT motions to dismiss:

p.39-40, "If the goverment's public disclosures have been truthful, revealing whether AT&T has received a certification to assist in monitoring communication content should not reveal any new information that would assist a terrorist and adversely affect national security. And if the government has not been truthful, the state secrets privilege should not serve as a shield for its false public statements. In short, the government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communication content."



But we are, at this point, debating whose fiberoptic taps they are, rather than questioning how such taps must work.

More documents here:

EFF's Class-Action Lawsuit Against AT&T - Legal documents
8.25.2006 4:47pm
Christopher Cooke (mail):
Having now read Judge Walker's decision in Hepting v. AT&T, which includes a very helpful discussion of Supreme Court and Court of Appeals precedent regarding the state secrets doctrine, it seems the government's best state secrets argument is that it needs to reveal such secrets to put on a defense, at least to the 4th Amendment claim.

I think the government's other arguments --especially, that the "very subject matter" of the lawsuit is a state secret-- were weak. After all, the President and the AG have publicly acknowledged this program, which distinguishes it from the Masri case in the ED VA (challenging the CIA's allegedly secret renditions program) and from the Totten case (involving a spy who claimed he had a secret espionage contract with Abe Lincoln). Here, the subject matter has been official disclosed, it is the details of the TSP that have not been disclosed (officially).

So, if the plaintiffs get around the standing hurdle, they should only lose on the state secrets ground on their 4th Amendment claim, if at all. As an aside, I can see why the details of the program may be relevant to show why the government didn't have to get a FISA warrant or one via the wiretap statute (e.g., it is not practical for millions of intercepts needed to run the program). And, the government would want to show that there was no 4th Amendment violation because no reasonable expectation of privacy was infringed by the TSP, or it was only minimally infringed, and that these privacy expectations are outweighed by the specific terrorist threats and the government's compelling need for this information. Thus, I can see the basis for asserting that the government can't make this showing without revealing state secrets.
8.25.2006 7:12pm
Starwind:
Christopher Cooke writes:

I can see why the details of the program may be relevant to show why the government didn't have to get a FISA warrant or one via the wiretap statute (e.g., it is not practical for millions of intercepts needed to run the program).

Govt Atty to FISA court: "Your honors, rather than burden you with millions of FISA wiretap applications, we'll just not stipulate to millions of counts of warrantless wiretaps, and save you from doing your statutorily mandated jobs"

And, the government would want to show that there was no 4th Amendment violation because no reasonable expectation of privacy was infringed by the TSP, or it was only minimally infringed, and that these privacy expectations are outweighed by the specific terrorist threats and the government's compelling need for this information.

Govt Atty to FISA court: "Oh, and your honors, did I mention those millions of warrantless wiretaps to which we're not stipulating include millions of innocent US citizens, who in our judgement, have no reasonable expectation of privacy when they pick up their phones (er, well... at least it's outweighed by the fruits of those millions of warrantless wiretaps that we're saving you from having to adjudicate).

BTW, your honors, what did you think of those recent Homeland Security alerts wherein we neither caught anyone nor did any attacks materialize? The fruit from those warrantless wiretaps has really paid off, haven't they your honors? ... Um, your honors? ..."
8.25.2006 7:38pm
Christopher Cooke (mail):
Starwind, don't get me wrong, I am just making an argument; I think the program is likely illegal.
8.25.2006 11:54pm
Starwind:
Yes Christopher I understood you. I do in fact value objective analysis of pros and cons.

I would expect government attorneys to make every argument in their favor, and I was employing a bit of hyperbole to illustrate the disingenuousness of their position, not your analysis.
8.26.2006 2:06am
Patriotic Clerk (mail) (www):
Orin, you asked what you did to motivate Greedy Clerk to attack you. Greedy Clerk attacked you because your biases — what you focus on and what you ignore or cover up — strongly suggest that your sympathies lie far more with your former colleagues at the DoJ than with democracy or the integrity of our legal system. Otherwise in addition to severely criticizing Judge Diggs-Taylor for her style you would have criticized your colleagues for their misbehavior in pleading this case, such as failing to argue the merits, as is well documented in the above comments. Your former colleagues are deliberately playing games that no parties, however powerful — especially if they are powerful — should be allowed to play.
<br>Your former colleagues' argument that the American executive has the Caesar's <i>imperium</i> and their extention of the state secrets doctrine to constitutional cases are also pathological. In other words they are legally frivolous, which you refuse to admit. But the common meaning of "frivolous" doesn't capture the evil nature of making such arguments in a democracy. The people who are making these arguments are not merely misguided, and they are not merely making poor arguments. They are evil, in the same way and for the same reasons that the people who promoted dictatorship in earlier eras of history were evil. Your former colleagues have displayed, not mere contempt of court, but ample contempt for our legal procedures and the Constitution. You have conspicuously overlooked or severely underplayed the substantive logs in your former colleagues' arguments in favor of focusing on the stylistic mote in the judge's opinion.
8.26.2006 5:36pm
Twill00 (mail):
Wow. Patriotic Clerk came close to a Goddard statement.

If we *guess* that whole conversations are being intercepted, and stored forever for later viewing by shady government shadow-drones, then there must therefore be a violation of rights. (NOTE - someone please calculate how much storage is required each hour of the day for this alleged system - it's impossible.)

Given this massive permanent omniwiretap, anyone who argues that the government might have a case (even if the tapping isn't proven and might not really be occurring) is therefore in league with the devil. More than most lawyers, that is.

But what if the conversations themselves are not intercepted? What if only the phone numbers are decoded and retained? Does a person have a reasonable expectation of privacy of the telephone numbers of who calls him and who he calls? Why? When lives are at stake?

It seems like most of the issues in the case can only be solved with the specific classified details of the programs in mind. How anyone could argue otherwise (unless they believe that standing can obviously be denied for some reason) is beyond me. Assuming that AG public statements are admissable as "undisputed facts" - wow. Can I use any AG statements I want as "undisputed facts" now on democraticunderground?? ROFL.

In fact, what if the entire supposed program is a disinformation campaign designed to make life more difficult for the enemy? If they *think* they are being intercepted, then their communications are suppressed. And less people will die because of it. For free.

Then, any leaked details with regard to the program (or lack thereof) would be direct damage ot our war effort. Any argument that that would be a state secret?

I'm not arguing that that is the case, that if we cannot prove that a violation has occurred, then there is nothing to fight over. Tra la tra la. There aren't many Pollyanas on this blog that argue that point. Most people on both sides - outside the "Bush derangement syndrome" set - seem to be merely arguing the particulars of the case, from their varied experiences, and guessing where it might go. Interesting to follow.

I cannot believe that our system can allow the government to assert the ability to do practically anything it wants to, without review by *someone*. On the other hand, I cannot believe that our system can *survive* if our defenses are continually laid bare before the enemy. Balancing is necessary.

This whole thing cries out for a clarification of the constitution, perhaps an amendment, but I can't think of any that wouldn't make the situation worse. We need the executive to have the power to *do* things, or thousands to millions of people will die from the omission. But we need to make sure that the power is not abused, specifically with regard to regular privacy and criminal activity. But we need to set reasonable expectations of privacy, and the unrestricted right to phone terrorists and enemy combatants without fear of interception is just unreasonable.

It will be interesting to see how this plays out.
8.27.2006 1:22am
Starwind:
Twill00 writes:

Balancing is necessary.

Agreed. Sufficient balancing may in fact have already been done. But that isn't measurable when one "side" refuses to put their argument on the scales, now is it. If it isn't measurable then it can't be ascertained what, if any, adjustment is needed.

And an administration that claims it needs more surveillance yet can't seem to effectively act on the surveillance it already has/had (potential terrorists streaming across open borders, fabricated or exaggerated threat of WMDs pretext for attacking Iraq) combined with a refusal to even ask congress for changes to FISA indicates the problem is not one of law, but one of judgement.

This whole thing cries out for a clarification of the constitution

The consitution is crystal clear. No unreasonable warrantless searches/seizures. Congress further clarified with FISA no warrantless surveillance wiretaps.

We need the executive to have the power to *do* things, or thousands to millions of people will die from the omission.


Arguably, thousands have already died (e.g. in Iraq) because the executive abused its power to do things (e.g. falsified or exaggerated intel on Iraq's WMDs), and no one has denied the executive the power to act reasonably (e.g. eject Saddam Hussein from Kuwait in 1991, or dismantle the Taliban in Afghanistan, or re-org the government's security apparatus into the Dept of Homeland Security post 9/11).

But we need to make sure that the power is not abused, specifically with regard to regular privacy and criminal activity.

Well that is the problem isn't it. How to prevent abuse when the abuser refuses to be scrutinized, let alone constitutionally/stautorilly checked.

How does the Legislature play its constitutional role of "checking" the Executive with further legislation (enhancing FISA for instance) when the administration argues that newly enacted regulations don't apply to that Executive by "fiat" of either executive orders or signing statements?

How does the Judiciary play its constitutional role of "checking" the Executive when the administration argues the Judiciary has neither constitutional nor stautorial purview and refuses to argue the merits of that Executive's authority?

But we need to set reasonable expectations of privacy, and the unrestricted right to phone terrorists and enemy combatants without fear of interception is just unreasonable.

I think it entirely reasonable to expect that when a law-abiding US citizen picks up their phone, their call is not being tapped without a warrant, or when a law-abiding US citizen puts their letters in the mail their contents are not read, and addresses not recorded without a warrant, or where a law-abiding US citizen resides within the continental US, their homes, vehicles, offices, bank deposits, be free from search and seizure without a warrant.

I think it entirely reasonable that the administration not be permitted its own cloak of privacy for its activities designed to strip away my privacy - the administration has no private authority to strip my constitutionlly protected privacy.

If FISA is somehow inadequate in regulatory statute or logistical capacity to give the administration the warrants for which it claims it has justifiable need, then it needs to argue the merits of its case to get the changes required.

But denial and evasion of the issue only serve to demonstrate the need for the Judiciary to check the Executive's track record of that very same denial and evasion.

Its about the reasonable expectation of lawful citizens to not be surveilled without lawful warrants, and their constitutional expectation that a judge either issue those warrants or adjudicate when they haven't, or do you think that unreasonable?
8.27.2006 11:08am
Starwind:
Twill00 also asks:

(NOTE - someone please calculate how much storage is required each hour of the day for this alleged system - it's impossible.)

A reasonable question.

A meaningful calculation would depend upon knowing (or approximating) the daily average comm traffic through the various global telcos and which telcos have in fact cooperated with providing traffic taps/shunts and how much is 'plucked' from thin air by monitoring satellite transmissions or even monitoring cell tower transmissions.

That quantitative calculation I can't do.

However, I can offer an informed qualitative answer based on the commercially available computer technology procurable by the NSA, that equipment providing thousands of teraflops of processor capacity are easily available, as are thousands of gigabytes of memory, thousands of terabytes of disk, and thousands of petabytes of offline storage (tape and tape-like), with services to install and cable it together are all available from US computer technology vendors. The NSA need only write them a check.

Consider also that commercial telco's now already store the call info for every phone in the world. Admittedly, it is stored in geographically dispersed datacenters of different companies, and archived over time to successively slower and larger technologies (from disk to tape to CDROM, etc). But there are no technological obstacles to reinventing a portion of that capacity within the NSA, and storing call content as well.

Consider also that Google for instance stores a fair portion of the internet content now, indexes and searches it within seconds. Again, duplicating what Google already does inside the NSA is technically and logistically feasible.

The commercial technology to store and process what can be collected is not a problem. Collecting it at feasible intercept points is the largest logistical problem. Everything else can be solved by scaling-up with existing commercial products. A large task, yes, but it is not rocket science, and is implementable with GSA-list products and services, plus a lot of custom software and consulting, no doubt.
8.27.2006 12:17pm
Starwind:
I did some "back of the envelope" estimations.

From How Much Information, I note that for example:

400 Terabytes: National Climactic Data Center (NOAA) database;

5 Exabytes: All words ever spoken by human beings.

Also note that 1 petabyte storage systems can now be obtained from:

[Capricorn Technologies] which requires 16 racks or about 2 cabinets over maybe 9 square feet, for about $2M.
or
[EMC] which requires about 126 square feet, for about $4M see [EMC]

Given 5 exabytes (5,000 petabytes) will hold "all the words ever spoken by human beings" then an NSA datacenter only need be:

at least 9 x 5,000 = 45,000 sqft with storage equipment costing $10B = $2M x 5,000;
or
at most 126 x 5,000 = 630,000 sqft with storage equipment costing $20B = $4M x 5,000.

Plus computers, mainframes likely, to process the data looking for terrorist calling patterns (costs and footprints not estimated).

So, using 2 or 3 "Walmart supercenters" as buildings plus storage equip costs ranging from $10B to $20B, and given the fiberoptic taps leaked by AT&T lawyers (AT&T leaks sensitive info in NSA suit noted earlier), the technological feasibility of the NSA to collect and store "all the words ever spoken by human beings" ought to be plainly evident.
8.27.2006 3:37pm