Some good clarification and looking-forward analysis from GMU law professor Orin Kerr – bottom line is that it’s likely Judge Taylor will be reversed.
More on the NSA Domestic Surveillance Case and Its Chances on Appeal: The excellent comment thread to yesterday’s post ( http://volokh.com/posts/1156190208.shtml ) on the NSA domestic surveillance case showed that there were a bunch of procedural aspects of the case that I was missing, and I wanted to follow up about those issues because they change the picture of the issues the Sixth Circuit faces on appeal. (Normally these things would have been clear from reading the district court opinion, but the opinion didn’t include them. I haven’t been following the case closely, so many thanks to those who were and helped fill us in.)
The key dynamic that emerges from the commentary thread yesterday is that Judge Taylor asked DOJ to brief the merits of the case, and DOJ essentially refused to do so. (Procedural history of the case here: http://volokh.com/posts/1156190208.shtml#134982 ) DOJ’s argument, if I understand it, was that it couldn’t brief the merits without divulging state secrets; Judge Taylor evidently disagreed, and so took DOJ’s refusal to brief the merits as a failure to dispute the facts and ruled against it. The civ pro people on the earlier thread seem to disagree whether this was proper; I’m not familiar enough with the issue of the top of my head to know which side is right, and it’s far afield from my area of expertise so it’s not something I’m planning to research, so I’m not sure of how that issue should be answered.
Assuming it was correct as a procedural matter, I gather DOJ made a bit of a gamble: I gather the folks at DOJ figured that Judge Taylor was going to rule against them one way or the other, so it was better to just let her do that and head to the Sixth Circuit (and if necessary, the Supreme Court) to duke out the issues if need be in a more hospitable forum.
What does this tell us about the future of the case on appeal? Well, if the Sixth Circuit judges agree that reaching the merits was procedurally proper, obviously it provides one less reason to reverse. On the whole, though, I still think it seems likely that the Sixth Circuit will reverse, and if they don’t, that the Supreme Court will. Here’s my thinking: in order to affirm, a higher court would have to agree that a) the resolution was procedurally proper, b) the plaintiffs have standing, and c) the case can go forward under the state secrets privilege, and d) there is a winning substantive cause of action that supports injunctive relief. Maybe I’m missing something, but I believe the ACLU would have to win on all four of these claims to have Taylor’s judgement affirmed.
That doesn’t seem very likely to me. For example, on (d), none of the causes of action that Judge Taylor used to support the injunction seem persuasive to me; the only viable cause of action at this stage seems to be one that she didn’t cover, FISA. If we’re at a procedural stage that it can be understood that the TSP constitutes “electronic surveillance,” then an appellate court could hold that FISA blocks the TSP and that DOJ’s AUMF argument is unpersuasive as a matter of law. But this hinges on an issue that I asked before, and that no one seems to have an answer to: does FISA permit injunctive relief? I don’t see how it does, for the reason mentioned in my earlier post ( http://volokh.com/posts/1156128315.shtml ), and if it doesn’t I’m not sure how it can permit the injunction. …