T Nation

NSA Domestic Surveillance Case

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. …

Also, a great op-ed in the NYT from U of Wisconsin law professor Ann Althouse:


[i] TO end her opinion in American Civil Liberties Union v. National Security Agency ? the case that enjoins President Bush?s warrantless surveillance program ? Judge Anna Diggs Taylor quoted Earl Warren (referring to him as ?Justice Warren,? not ?Chief Justice Warren,? as if she wanted to spotlight her carelessness): ?It would indeed be ironic if, in the name of national defense, we would sanction the subversion of … those liberties … which makes the defense of the nation worthwhile.?

As long as we?re appreciating irony, let?s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations. . . .

Look at that juicy quotation from Judge Taylor?s ruling: ?There are no hereditary kings in America and no powers not created by the Constitution.?

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn?t arguing that he?s above the law. He?s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they?ve concluded that the program is legal. Why should the judicial view prevail over the president?s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge?s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law. . . .

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge ?must of necessity expound and interpret? in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine ? this constitutional limit on her power ? in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge?s word about what the law means over the word of the president? If the judge?s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There?s irony for you.[/i]

For anyone interested in primary docs, here you go:


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 ( http://volokh.com/files/docket.pdf )

ACLU Motion for summary judgment (filed March 9) ( http://www.aclu.org/images/nsaspying/asset_upload_file640_24453.pdf )

DOJ motion to dismiss (or in alternative for summary judgment) (filed May 25) ( http://www.aclu.org/pdfs/safefree/nsa_govt_motion_dismiss.pdf )

Order denying DOJ's motion for a stay (filed May 31) ( http://www.aclu.org/images/nsaspying/asset_upload_file983_25726.pdf )

DOJ's motion for clarification (filed June 2) ( http://volokh.com/files/2_June_2006_DOJ_motion_for_clarification.pdf )

ACLU's reply memo in support of summary judgment (filed June 5) ( http://www.aclu.org/pdfs/safefree/plaintiffreply20060605.pdf )

ACLU's response to DOJ's motion for clarification (filed June 6) ( http://volokh.com/files/6_June_2006_plaintiffs'_response_to_DOJ_motion_for_clarification.pdf )

DOJ's reply to ACLU's response (filed June 7) ( http://volokh.com/files/7_June_2006_DOJ_reply_on_motion_for_clarification.pdf )

ACLU's response to DOJ's motion to dismiss, or in the alternative for sumamry judgement (filed June 20, 50 pages) ( http://volokh.com/files/20_June_2006_plaintiffs'_response_to_DOJ_motion_to_dismiss_or_for_SJ.pdf )

DOJ's reply to the ACLU's response (filed June 30, 33 pages) ( http://volokh.com/files/30_June_2006_DOJ_reply_on_its_motion_to_dismiss_or_for_SJ.pdf )

If I get additional documents and think they’re worth posting, I’ll add them to this post.

For anyone who is interested, on appeal the 6th Circuit reversed, and the 3-judge panel just ruled 2-1 that the plaintiffs don’t have standing to bring the suit.

Here’s the opinion: http://www.ca6.uscourts.gov/opinions.pdf/07a0253p-06.pdf

Here’s some initial summary analysis:



I find it ridiculous that they ruled the ACLU has no standing since they cannot prove they are victims…

How do you prove you are a victim of a secret and warrant-less surveillance?

Seems like this would grant the government free reign to conduct such surveillance since no one could prove they were specifically being victimized…