Sixth Circuit Reverses Judge Taylor on NSA Surveillance Case:

The opinion of the Sixth Circuit is here, via Howard. The panel divided 2-1, with three separate opinions. Judge Batchelder and Judge Gibbons concluded that the plaintiffs lacked standing to sue because they had no evidence that they were actually subject to monitoring under the Terrorist Surveillance Program.

  As I understand it, the plaintiffs in the case had argued that they thought they might be covered by the TSP, but had no particular reason (other than the apparent existence of the program) to think they in fact had been or were to be monitored. Their claimed injury-in-fact was that they were holding back on sending international communications out of fear that they were being monitored. The main question in the case was whether this claim was sufficient to establish standing to challenge the legality of the TSP program.

   Judge Batchelder’s opinion goes through the complaint claim-by-claim, explaining her reasons why the plaintiffs either lacked standing for each claim in light of this alleged injury or why the plaintiffs lost on the merits (or both). I am no expert in standing doctrine, but based on my quick read I tend to think this was the right approach and that the result seems correct.

  Judge Gibbons’ opinion argues the standing issue more broadly, reaching the same result as Judge Batchelder. Judge Gilman dissented, arguing that the attorney-plaintiffs had alleged sufficient harm to have standing. Judge Gilman then reaches the merits of the case, concluding that “the Bush Administration’s so-called ‘Terrorist Surveillance Program'” violates FISA and rejecting the “inherent authority” claim.

  (Oh, and in case you’re wondering at home, yes, the four opinions issued in this case do neatly match a political narrative. Judges Batchelder and Gibbons were appointed by Republicans, Bush Sr. and Bush Jr, respectively; Judges Gilman and Taylor were appointed by Democrats, Clinton and Carter.)