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August 18, 2006

The domestic spying opinion

Publius calls a federal judge's recent opinion on the illegality of the NSA warrantless wiretapping program a legal atrocity and Scott Lemieux describes the legal reasoning behind the opinion as defective.

Publius thinks it's inappropriate that the opinion is based on the judge's interpretation of the Constitution and the FISA law, plus a set of undisputed claims about the nature of the government's secret spying program (known in the opinion as "TSP", short for "the secret program").

Note that the government invoked national security privilege to avoid confirming or denying that it spied on the people trying to sue it.

Publius considers it outrageous that, "The Court — in its infinite wisdom — decided prior to any discovery that it had seen enough facts to determine that none of them are necessary to any viable defense that may or may not be raised."

Publius knows way more about the law than I ever will, but as a matter of logic, I think he's off-base.

In order to appreciate the structure of the opinion, it is important to consider the order in which the government's challenges would have to be addresed. In this case, the first question raised by the government was whether these particular plaintiffs had standing to sue the government for violating their legal and constitutional rights by TSP. People can't just sue over laws or programs they dislike. In order to have standing to sue, you have to convince a court that you have been directly impacted by the law or policy you're launching the lawsuit against.

In this case, the plaintiffs are a coalition of lawyers, journalists, scholars, and activists who regularly communicate internationally with those whom the government considers to be members of al Qaeda, members of groups affiliated with al Qaeda, or agents of al Qaeda or its affiliates. According to the president and other senior officials, TSP is a warrantless wiretapping program directed against people in the USA who call or email that kind of suspicious person.

The plaintiffs believe that the government has monitored their calls. However, more importantly, they claim that they belong to a class of people whom the government asserts the right to spy on. These two claims are distinct, the second being far more important than the first.

The plaintiffs argue that the program infringes on their constitutional rights because the government's assertion of the right to spy on them hampers their ability to conduct certain constitutionally-protected kinds of business.

For example, the lawyers say they can't effectively represent their overseas clients because they cannot offer their clients privileged communications, and the journalists say they can't report the news because their sources are no longer willing to talk them on the phone or through email. Many of the plaintiffs also have to spend extra time and money traveling to meet their contacts in person because they know that their telephone lines and emails aren't secure. The government disputes none of this.

Therefore, the plaintiffs argued, their First Amendment rights too free speech and freedom of association are violated by the existence of the secret program. Ultimately, the court agreed sided with them.

Recall that the government refused to confirm or deny that it spied on any of the plaintiffs. Government lawyers say they can't reveal their domestic espionage targets without compromising national security. Naturally, that's very convenient for the government, because at first glance, the plaintiffs' right to sue depends on their ability to establish that they were spied on.

So, here's why the judge dragged in the First Amendment issue before specifically addressing the Fourth Amendment issues: If the government had admitted to spying on the plaintiffs, the suit could simply have been about the plaintiffs' rights under the Fourth Amendment and FISA. Alternatively, if the government denied spying on these people, the case could then have advanced to the discovery phase, in which each side would have had the right to collect evidence to settle the factual dispute before the court.

During the discovery phase, the plaintiffs would ordinarily have had the right to demand government documents, internal emails, and other evidence that they were, in fact, the victims of domestic spying.

However, due to to the sensitive national security issues involved in this case, the plaintiffs even promised upfront not to ask anything that wasn't already public information. They said they were prepared to rest their case on the public statements that the president and senior members of the United States government had made regarding TSP. But that wasn't good enough for the government.

Note that the government did not dispute that potential for spying interfered with the plaintiffs' businesses. Nor did it dispute that the plaintiffs' concerns for their clients and their own interests were  well-placed, given the scope of TSP. Obviously, the government didn't accuse the president of lying about the scope of TSP.

Rather, the government maintained that the plaintiffs' inconvenience was merely due to their own anxiety about being spied on, which it argued was merely subjective and not "constitutionally congnizable."

In general, a hypothetical risk isn't enough to give someone standing to sue. Since the government invoked privilege to preempt any inquiries about whether the plaintiffs were in fact being monitored through TSP, the risk of surveillance might seem to be hypothetical--because, as far as the court was concerned, there was no admissible proof that the people suing the government were actually monitored. That might have been enough to derail the suit altogether.

However, the judge concluded correctly that the warrantless wiretapping program isn't a hypothetical risk for these plaintiffs. The plaintiffs aren't claiming that they were injured because the government spied on them. Rahter, they claim they have been injured because TSP places them in a category of persons who are no longer secure from unreasonable search and seizure. The government does not contest that the plaintiffs are being intimidated and/or inconvenienced in their work, nor does it dispute that they are fair game for domestic spying, nor does it contest that there is a direct causal connection between being insecure from unreasonable search and seizure and being less effective in one's constitutionally-protected duties as a lawyer, journalist, or activist.

Most importantly, the government didn't contest the scope of the domestic spying program, as described repeatedly by the president and senior officials.

Therefore, as far as the court is concerned, it's a mutually acknowledged fact that these plaintiffs have been marked by the state with a big red "FEDS, LISTEN HERE" sign, and that this branding makes it harder for them to do their jobs.

Now, you might argue that this inconvenience isn't a violation of the plaintiffs' constitutional rights. To me, the biggest question is whether these interferences actually violate the plaintiffs' right to free speech. That's a technical issue that I'll set aside for the moment.

However, I submit that all the relevant factual issues are known, and therefore that Publius's central objection is unpersuasive. The issue is whether the government has the right to spy on people who belong to certain groups without warrants, and in contravention of FISA.

Clearly the government has no general right to spy on people without warrants as a matter of law. The Fourth Amendment and FISA are sufficient to invalidate this program.

Note that the government has only offered legal defenses of the president's power to spy on people without warrants. These are constitutional arguments, not factual claims. The relevant fact is that the United States at war, a dubious assertion, but not one contested in this case, AFIAK. 

This lawsuit is about the existence of a program with a certain undisputed scope. The specific facts, which the government declines to discuss, are not relevant. The case must rest on the stated justification for the program, not hypothetical extraneous circumstances that the government might not be able to reveal.

The Fourth Amendment and FISA violations are the backbone of this opinion. Some critics have argued that raising the First Amendment issue is a distraction from the main issue. However, the discussion about the plaintiffs' First Amendment rights serves a vital role in the larger decision-- to establish the plaintiffs' standing to sue.

You can argue that any constitutional rule has exceptions in theory but this opinion doesn't hinge on the facts of any specific case. We know because government chose to preempt any discussion about the merits of any specific accusation of spying. There are no specific secret circumstances that would authorize the government to create a program like the one they acknowledge for the reasons they cite. As far as the government is concerned, their authority stems from the U.S. being at war, a circumstance which allegedly authorizes the president to disregard the law and the constitution at will.

These are not secret facts. No details about who is or isn't being targeted by this program are relevant. Theoretically, any individual might be a legitimate target for sci-fi-level bizzarofacts that we can only imagine, but this lawsuit is about the legitimacy of a program that targets a defined class of people for publicly disclosed reasons.

This case is about the existence of a program with an undisputed scope that is impinging upon the security of the plaintiffs in an undisputed way--in violation of their Fourth Amendment rights and federal law. The fact that some plaintiffs are also having their First Amendment rights violated in virtue of their inability to guarantee attorney-client privilege or report the news is their foot in the door for this lawsuit.

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The [plaintiffs] aren't claiming that they were injured because the government spied on them. They claim they have been injured because they secret program places them in a category of persons who are no longer secure from unreasonable search and seizure. The government does not contest that the plaintiffs are being intimidated and/or inconvenienced in their work, nor does it dispute that they fit the description of people who are fair game for domestic spying.

Actually, the plaintiffs' claim to standing is slightly more complicated, but (at least in my opinion) even stronger, than that. The plaintiffs allege -- and the government (at least according to Judge Taylor's opinion) didn't dispute -- that overseas clients, witnesses and sources with whom they communicate professionally have refused to communicate with them by phone or internet, because they fear the communications will be intercepted.

On that theory, it is at least arguably irrelevant whether the plaintiffs themselves have in fact been targets of the surveillance program; it is enough that they fall within the targetted class, and that their overseas contacts thus reasonably believe their communications may be intercepted. As such, they've suffered actual harm as a proximate result of the program.

Suffice it to say, I disagree with Publius and Scott Lemeix in the merits of the opinion. The fact is that most trial court opinions aren't terribly well reasoned, at least by the standards of academic analysis. That seldom makes much difference as to what happens on appeal.[f.n.]

The virtue of Judge Taylor's opinion, in my view, is that she takes some strong swipes at the Bush Administration's claims to "inherent power" derived from the President's role as "Commander in Chief". The money quote in the opinion, as far as I'm concerned, is this:

"We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution.


[f.n.] Well, actually, I'm making an assertion here for which I don't have robust empirical evidence. This would make for an interesting piece of socio-legal research that I ought to take up some time. But, it is a well-settled legal rule than an appellate court may affirm a lower court on any grounds, even if it disagrees with the particular grounds on which the lower court decided the case. Appellate Courts are well accustomed to reasoning through legal issues themselves, and will hardly shy away from the task just because the trial judge didn't do such a thorough job.


Op, I think we agree about the basis of the plaintiffs' legal standing. I probably didn't state my case clearly enough.

The plaintiffs need a causal connection between TSP and their undisputed problems representing clients, reporting the news, agitating for political change, etc. The causal connection is that they belong, by the governments' admission, to a class targeted by the TSP. Therefore, they are losing clients, not representing clients as well as they should be able to, not reporting important news, operating with diminished political effectiveness, and so on.

"We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution.

Fortunately Commander Codpiece found a way around these ridiculous "constitutional" constraints that activist judges are always invoking to hamstring our efforts in the War on the Struggling Globe of Extremely Violent Extremist IslamoCommuNazis: He passed the Presidential Empowerment Act. It was approved unanimously, 1 - 0.
God save the Chimp!

"...the government maintained that the plaintiffs' inconvenience was merely due to their own anxiety about being spied on, which it argued was merely subjective and not "constitutionally congnizable."

In other words Big Brother may or may not be watching you, but you'd better just shut up and learn to like it because it's none of your business anyhow. Swell.

The administration's audacity is once again breathtaking. They institute a massive program that essentially repeals a constitutional amendment, then claim that no one, least of all people directly affected, has any legal standing to object.

We'll see just what the new Bush Supreme Court is made of when this case gets there. It doesn't smell good so far, and I'm not particularly optimistic that we don't have ourselves a heap of authoritarian Federalist Society dung.


enjoyed this post. as you correctly note, everything turns on whether facts are or aren't disputed. i'm going to write on this later, but the mere fact that the ACLU says they're undisputed doesn't make it so. i've gone back and looked at the briefs now and the government disputes a lot - and says (correctly i think) that taking pieces of public statements here and there isn't sufficient for creating a record of offical "undisputed facts."

think of it like this - aclu says X facts are admitted and conceded. however, whether a constitutional violation happens depends on X PLUS Y (where Y is the facts not yet known). For instance, let's say I shoot someone. Let's call the victim Lush Rimbaugh. The ACLU is essentially saying, "he shot Rimbaugh. everyone one saw it. it's public - that's murder. case closed - give me summary judgment" i would respond, "yes, I shot him, but he was coming at me with a knife." Thus, shooting is "X" and the justification is "Y." X+Y (not X alone) is the universe of relevant facts. and the reason we have discovery is to learn about that universe

Alternatively, the government could say that "X" is not really X at all, but "not-X" or Xish or something different than what the ACLU says. The government may be right, they may be wrong, but the fact that they say it precludes summary judgment at this early stage

but again, you're absolutely right that this debate turns on whether all the facts necessary are known

Op, I think we agree about the basis of the plaintiffs' legal standing. I probably didn't state my case clearly enough.

Yeah, I think it was me who didn't state my point clearly enough. I meant to elaborate on, not "correct", your point. That's the problem with lawyers -- we're used to expressing disagreement, so when we agree, it doesn't always sound like it!

Lindsay:

The relevant facts are assertions such as the claim that the United States is at war, a dubious factual assertion, but not one contested in this case, AFIAK.

As a side note: Why do Constitutional originalists not insist that Congress declare war for the United States to be in a state of war since that is what the Constitution dictates unequivocally?

Well, having expressed disagreement with Publius earlier, I should say that his comment here helpfully clarifies my understanding of his criticism of the opinion.

The problem arises here because of the "state secrets" issue. In a normal case, the defendant can't merely say "I dispute the plaintiff's facts". If they could, nobody could ever get summary judgment, because anyone could simply insist there's a factual dispute. (To be more precise, I'm referring to the normal circumstance, where a motion for summary judgment follows discovery. Publius is absolutely correct in noting that this case was still at the pre-discovery pleadings stage, which is an important distinction.)

The difference is that, where the "state secrets" privilege applies, the government, unlike a normal defendant, can defeat summary judgment by saying, "we have information that would refute the plaintiff's facts, but we can't produce that information, because it would disclose a state secret." (This is why the distinction between the pleadings and discovery stages turns out not to make much practical difference in this case -- because the government would assert the state secrets privilege against discovery anyway.)

I understood Judge Taylor to be saying it didn't matter, in this case, what information the government might have but be unwilling to disclose, because, as a matter of law, there aren't any facts that would justify the warrantless surveillence under the TSP. In other words, unlike Publius's (very good) example, in this case, the law wouldn't recognize any "justification" or similar affirmative defense. The government is, in any event, required to follow the FISA procedures. (I don't read Judge Taylor's opinion -- as some critics like Doug Kmiec do -- to say that the TSP would be unconstitutional even if authorized by statute; rather, I think Judge Taylor merely meant that, absent any statutory authorization, and in the face of a statute that on its face prohibits such action, the TSP exceeds the President's constitutional authority.)

So, it comes down to whether the factual dispute (assuming there is one) is "material" --i.e. whether there are any conceivable facts that would make a legal difference. If so, then summary judgement wouldn't be proper. But, if not, then this is, as the court presumes, a question of law suitable for summary adjudication on the pleadings and affidavits.

right - and what the court could have done is said "look, i'm not ending the case. It goes forward. What you disclose, I'll consider. What you don't I won't. Now, go out and build your record and argue the case based on these paramters."

I haven't read the opinion yet, but I have to say that I find the prudential portion of the standing argument a bit odd. The set of folks who want to be "strong" on national security tend to be pretty significant secrecy-boosters. It seems like allowing for fairly broad pre-discovery judgments is a pretty secrecy-enabling practice - a convenient little national security exception to the advisory opinions prohibition, if you will.

So even if I disliked this holding, if I were a national security strongman I'd be way down with the standing and judgment-on-pleadings issue.

There is a rule for what you're supposed to do if the other side is asking for summary judgment, and you think you need for there to be discovery. It's Rule 56(f). You make a showing, and the motion is put off so that discovery can take place. Did the government do this? No, and it couldn't have shown that there is any discovery it needed to take from the plaintiffs that would bear on the constitutionality of the program. Courts can always hear summary judgment at the outset of the case -- there's a provision of Rule 12 that controls this -- and the burden is on the party that doesn't want to see a summary judgment to properly resist it.

Publius: '...and what the court could have done is said "look, i'm not ending the case. It goes forward. What you disclose, I'll consider. What you don't I won't. Now, go out and build your record and argue the case based on these paramters." '

Did you miss the part where the court ruled that the governments claims were "disingenous" Publius?

Why should she extend them an invitation to tell more lies? And why would they lie if the facts supported them?

Their claims rest on the notion that the president can do anything at all regardless of the law. That assertion fails as a matter of logic on any set of facts: there is nothing in the Constitution that would permit an absolute dictator.

I can sure tell you were trained in analytic philosophy. Well done.

Discovery wouldn't have mattered here, as any allegedly relevant facts are all in the possession of the government and the government could have produced them if it chose to. Instead, the government said, "we can't produce the facts because they are state secrets." The court could have said, "sorry, I disgree. I deny your motion to dismiss on state secrets grounds. Now go ahead and produce whatever additional evidence you are willing to produce, and I'll consider the motion on the merits." That is what publius thinks it should have done, and that would have been within her discretion.

On the other hand, she had full authority to say, "You had your chance to come forward with facts, and you decided not to do it. The motion is properly before me now and I will rule on it." District judges do this all the time.

So publius is just wrong to say that the opinion is a legal "atrocity." He owes the judge an apology for the insult, and he owes the reading public an apology as well.

It's Rule 56(f). You make a showing, and the motion is put off so that discovery can take place. Did the government do this? No ...

The timeline quoted at the VC and Publius's blog includes this item:

On June 2, DOJ moved for a "clarification" of the courts order, which was basically a motion for reconsideration, but pointed out that certain portions of the briefing it had already filed addressed plaintiffs' motion, and also suggested that there were Rule 56(f) issues (i.e., the government could show facts in dispute if it were granted discovery).

Is this true? Does anyone know of a copy of the June 2 memorandum of law, or has anyone read it?

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