Today the U.S. Court of Appeals for the Sixth Circuit held that none of the plaintiffs in American Civil Liberties Union v. National Security Agency have standing to challenge the program and dismissed the case. Judge Batchelder wrote the opinion for the court. Judge Gibbons delivered a separate concurring opinion, and Judge Gilman dissented. I can virtually guarantee that this is not the last we have heard of this case.
UPDATE: From Judge Batchelder's opinion for the court:
in crafting their declaratory judgment action, the plaintiffs have attempted (unsuccessfully) to navigate the obstacles to stating a justiciable claim. By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm — this is typical of declaratory judgment and perfectly permissible. But, by proposing only injuries that result from this refusal to engage in communications (e.g., the inability to conduct their professions without added burden and expense), they attempt to supplant an insufficient, speculative injury with an injury that appears sufficiently imminent and concrete, but is only incidental to the alleged wrong (i.e., the NSA’s conduct) — this is atypical and, as will be discussed, impermissible.From Judge Gibbons concurring opinion:Therefore, the injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is imminent and concrete (i.e., the burden on professional performance) does not support a declaratory judgment action.
The disposition of all of the plaintiffs’ claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory. For this reason, I do not reach the myriad other standing and merits issues, the complexity of which is ably demonstrated by Judge Batchelder’s and Judge Gilman’s very thoughtful opinions, and I therefore concur in the judgment only.And from Judge Gilman's dissent:
My colleagues conclude that the plaintiffs have not established standing to bring their challenge to the Bush Administration’s so-called Terrorist Surveillance Program (TSP). A fundamental disagreement exists between the two of them and myself on what is required to show standing and whether any of the plaintiffs have met that requirement. Because of that disagreement, I respectfully dissent. Moreover, I would affirm the judgment of the district court because I am persuaded that the TSP as originally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).And:
The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier. Mootness is not a problem because of the government’s position that it retains the right to opt out of the FISA regime whenever it chooses. Its AUMF and inherent-authority arguments are weak in light of existing precedent and the rules of statutory construction. Finally, when faced with the clear wording of FISA and Title III that these statutes provide the “exclusive means” for the government to engage in electronic surveillance within the United States for foreign intelligence purposes, the conclusion becomes inescapable that the TSP was unlawful. I would therefore affirm the judgment of the district court.
That may be the next avenue, assuming this decision stands.
everyone may potentially have their calls intercepted, so no one has grounds to challenge the program.
Does anyone else feel that there are a substantial number of federal judges who use the standing doctrine to avoid deciding hard cases?
Dude, that's what it's for. Especially where you define "hard cases" as "those unfavorable to the government."
Requiring proof of a "case or controversy" is one thing, but judicially-invented standing doctrine should not be used as a cloak for executive malfeasance -- the origins, indeed, of the "state secrets" doctrine (covering up a gov't screwup).
Wm13, how exactly was the TSP subject to decision by "democratic processes"?
"Platonic guardians" is pretty much what the Executive has asserted it's empowered to be.
So the trick is to hurt many people to avoid judicial review? I'm sure glad the Supreme Court judges in Brown saw things differently.
Don't worry; the present Court will have that Brown outlier fixed in a little bit.
Zathras, you aren't really paying any attention to what I am saying. Obviously Brown involved a disadvantaged minority, and a readily identifiable one. Quite the opposite of the sort of case that creates standing problems. You might try reading Carolene Products and Ely's "Democracy and Distrust" to gain a better understanding of the issues (though I don't want to be thought of as endorsing Ely's overall theory of judicial review).
I'm curious -- In your view, is this decision correct on the law or incorrect on the law? You mention the likelihood this outcome would happen, and the policy consequences of it (which you find troubling). Any thoughts on which of the opinions most accurately and faithfully applies the existing binding precedents? That's the most important question to me, at least. Although of course others need not share that interest. And of course, if you'd rather not respond, no problem.
1) Are there any convincing arguments why standing *should* be granted to plaintiffs in this case?
2) Is it disingenuous for a judge to hold no standing, but also conclude that if there were standing, the plaintiff would probably win? Does this ever happen?
We had elections in 2004 (before the disclosure of this particular program, but I'd argue that the voters knew quite well what they were getting when they reelected Bush) and 2006, we're having another one in 2008. If the voters dislike this program, they have ample opportunity to vote for congressmen, senators, and a president who would get rid of it.
As a practical matter--and standing is at essence a practical doctrine--it seems to me that the injury that results from unauthorized searches is one that is well-recognized by the law. Moreover, the question of whether warrantless surveillance violates the Fourth Amendment and/or FISA presents a relatively narrow legal question for resolution for the courts. So I don't see how it would be such a big deal for the courts to take up the issue on the merits.
As a further practical observation, I'm glad this was resolved on standing -- and I hope the Supreme Court doesn't take it up on the merits. My guess is that the outcome would likely be a 5-4 decision resulting in a reduction of Fourth Amendment protections, based on indulgence of the executive branch's unchallenged assertion that "national security" requires such a program.
The miraculous thing is that all the Bush administration had to do was to get (secret) warrants from the (secret) FISA courts who never deny anything, and they would be fine.
This is the other problem with standing: even if the plaintiffs got the relief they sought (compliance with FISA) their claimed harm (chill on their overseas communications) would not be redressed because the FISA courts themselves provide for secret warrants. The plaintiffs being secretly surveilled are in the same position they would have been if secret warrants had been issued.
Well, considering that Scalia considered the mere possibility that George W. Bush might not win if all the votes in Florida were counted sufficient to not merely grant Cert, but shut down the recount being conducted in accordance with state law under the supervision of a state judge, I'm not sure that concepts like "standing" and "potential harm" have any discernable boundaries.
And given the consistency with which Rhenquist and O'Conner's replacements have sided with the three remaining judges who comprised the Filthy Five, the current Supremes are likely to turn questions of standing and potential harm into a "crapshoot"---with the emphasis on the first syllable of that word.
This is silly for many reasons. Voters were supposed to be aware of the fact that Bush was secretly violating the FISA law because he secretly received legal opinions saying that the Constitution allowed him to do so? While defending the PATRIOT ACT on the campaign trail, Bush expressly said that all wiretaps required warrants. Was the public supposed to "know" that he was lying?
And what, pray tell, is the point of electing new congressman and senators when the law already says that the wiretaps are illegal? What are they going to do, underline it?
What do you think a court is going to do? Underlining is all courts ever do.
The FISA court did deny a significant number of warrant applications (a few percent of the total IIRC, without going back and looking up numbers). I don't think it was any more a rubber-stamp than the average judge reviewing warrant applications.
I agree with your second point, which Judge Anna Diggs Taylor tried to evade by ruling that this conduct violated the First Amendment - although since a warrant cannot excuse a speech-chilling First Amendment violation, her opinion would have meant that getting warrants still wouldn't have been sufficient to permit these wiretaps.
Nick
Congress did incoprporate those principles into law with FISA but the only court which has specifically analyzed the affect of FISA on the President's authoritiy ruled that FISA could only enhance the President's inherent article III authority, it couldn't restrict it:
And of course:
So for those of you worried that the Government (because it is not just this adminstration) has suspended your civil liberties and is going to start rounding you up, you need only worry if you are "agents or collaborators" of a foreign power. And rightly so.
18 U.S.C. 2511(f) reads:The judge read this as being divided into separate parts, the most notable here being the first: In other words, if the communications involve foreign intelligence operations from international or foreign communications, Title III does not apply. The rest of this last quoted section is combined with the other by "or", indicating that in either case, Title III doesn't apply.
Then we come to FISA. The relevant section would likely be 50 U.S.C. 1801(f)(2) which states that: But the plaintiffs could not prove that it applied:
It happens routinely in the class action context -- the court concludes that even though the complaint states a claim on behalf of somebody, the putative class representative him or herself isn't a member of the class and therefore has no standing to bring the claim.
As an aside, why is Batchelder's opinion first? Is it strictly because she's alphabetically first, since Gibbons joined only in the judgment?
Per the Constitution, I would be willing to sign on as one of the two required witnesses charging the ACLU with treason, for giving aid and comfort to the enemy. Same for the NYT, for that matter. How 'bout them apples, samuil?
The outcome was likely because of the peculiar situation of the plaintiffs -- the gov't conceded it was spying but invoked "state secrets" to deny plaintiffs any evidence that would support their particularized claims. Under the highly, um, "flexible" law on standing, that left plenty of room to find against plaintiffs.
Neither Batchelder's opinion nor Gilman's seems to me in the least hackish or lame; but standing doctrine is in no small part a matter of judicial policy, and I disagree with Batchelder on the policy issue.
Under this standard, why would someone for who there was probable cause for a crime existing, but the government unjustifiably failed to seek a warrant, have any standing? It seems like the legal difference you are noting (and I realize this is your interpretation of the court's opinion, and not necessarily your own), is not one that courts have found historically relevant.
Now comes the interesting constitutional issue - are 70% of Americans guilty of treason, or just Gallup and Pew, who discover and report this information? Or maybe there's a middle ground here - just the people who responded (incorrectly) to the survey?
I wonder if the government needs a warrant to subpoena Gallup and Pew to find out the culprits.
Don't feed the bears -- er, trolls.
The original standing was based on 1st Amdt. chilling. But the chilling can't be quantified since it is also possible that any interception is warranted. Remember, on the other end of the calls are most likely the type of people whom FISA warrants were designed to surveil. So, given that it is also known that the NSA is getting warrants for calls with this class of people, the plaintiffs can't really say that there wouldn't have been as much, or at least almost as much, chilling, if warrants were always being acquired, as opposed to sometimes.
Would that allow standing, under the 6th Circuit's reasoning? Or is that still an open question?
(Tossing this out b/c I am, not lazy, but actually too busy to study the op right now. Ignore as needed.)
It would be altogether unsurprising if the Republican appointees to the Sixth Circuit found a way to uphold the program, however disingenuous they would have to be in order to get there. As for the Supreme Court's Lickspittle Five, this case could be just the vehicle for writing an expansive view of executive power into the Constitution. Who knows, these five might even sua sponte overrule Youngstown Sheet &Tube.
It's the same thing for doing away with habeus. You can claim all you want that it's a special circumstance used only for terrorists, but the whole point is that without it we have no way of knowing if who it was used on was a terrorist in the first place.
Can you tell us what you mean by "listen in?" In the past this would mean someone was wearing headphones and actually using their ears to monitor the call. In the context of today's modern packet switched newtorks what do you mean by "listen in?"?
As I recall, it was 5 out of 20,000. An amended version of one of the 5 was later approved.
Nick
Often the point isn't to get a conviction, but to gather intelligence about people so their plans to blow us up can be stopped. If intelligence from a conversation between A and B tells us that C is planning a bombing, then resources can be deployed to prevent C from carrying out his plan.
Exactly right. The problem with the legal eager beavers is that they do not understand that everything does not have to end up in the courtroom. This is the very problem the CIA and FBI had prior to 9/11.
Wait, what?!? Since when is giving one's opinion trolling?? Comment on my proposal if you like; it was based on specific Constitutional language.
If you're gonna call names instead of formulating a reasonable response, we'll have to settle the matter with a hot dog eating contest.
That only seems to be half of the information needed to determine whether or not the FISA court is really a rubber stamp. If only (that) 1% of applications needed modification, then it's not a rubber stamp, but if more than 1% needed modification/rejection but didn't receive it, then it'd seem fair in my mind to call it a rubber stamp. And I guess if much less than that 1% really needed the modifications asked for, then it's tingodding.
Basically, knowing they did modify, or even flat-out reject, 1% of applications isn't all that helpful without also knowing how many they should have modified or rejected.
Especially since, depending on how you look at it, 1% isn't all that an impressive a total. You know, "anything less than at least a 10% rejection rate is a rubber-stamp".
Perhaps we need a special court to determine how many they should have rejected?