NSA Wiretap Program ruled Unconstitutional

[TheDoctor]

Try reading what I wrote again:

1. Congressional Democrats were briefed on the program from its' inception.
2. Not one of them complained until the NY Times published.
3. And none of them, TO THIS DAY, have called for the program to be halted.

Which of these statements is wrong?

Again, the briefings did not comply with the law. The appropriate committees were not brief and the briefings that were done were done in violation of the law. It is amusing that misstatements in a civil depo are a big deal to conservatives but out right violations of the laws on briefing of Congress are okay. The briefings that you are so proud of were illegal and inadequate. The law is clear here and an impartial source has come down pretty hard on the bushies for playing games with these briefings. If the rule of law is to be respected, then bush needed to brief congress in accordance with the law. Of course respect for the rule of law is a foriegn concept to the bush administration.

 

[TheDoctor]

But, as long as you are posting Tribe's embarassment, I'll take the opportunity to post my favorite smack down (so far...) from a legal blogger:...!

Gee, you are relying on a conservative poster who is complaining that Tribe uses big words. Sounds like this poster like you does not understand the issues.

 

[bsnyder]

Again, the briefings did not comply with the law. The appropriate committees were not brief and the briefings that were done were done in violation of the law. It is amusing that misstatements in a civil depo are a big deal to conservatives but out right violations of the laws on briefing of Congress are okay. The briefings that you are so proud of were illegal and inadequate. The law is clear here and an impartial source has come down pretty hard on the bushies for playing games with these briefings. If the rule of law is to be respected, then bush needed to brief congress in accordance with the law. Of course respect for the rule of law is a foriegn concept to the bush administration.

He's like a wind up toy, the Energizer Bunny, or something.

 

[TheDoctor]

This is from Professor Balkin. http://balkin.blogspot.com/

Why did Judge Taylor rush out such a sloppy opinion in the way she did? Some people have speculated that it was to hog all the glory for herself. But that's not the only possible reason. Judge Taylor has been on the bench for many years, and, presumably, she knows how the appellate process works. In this post, I try to show that strategically, at least, Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal.

Judge Taylor knew that most of other lawsuits challenging the NSA program were being consolidated in California, and hers might be as well. She might have wanted to ensure that the 6th Circuit got to pass on the NSA case in addition to the 9th Circuit. The more circuit courts that passed on the case, the greater the chance that one of them would hold the way she thought the case should come out, and present a favorable record on appeal to the Supreme Court. But more important, she might have noted that the Supreme Court regularly reverses the 9th Circuit, and that the judges on the 6th Circuit might do a better job with the case, or, at the very least, their work would be viewed with less skepticism by the Justices.

Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal.

Judge Taylor's opinion did both of these things in her opinion. First, she raised as many claims on the merits as she could think of, even if her analysis skated over the surface and didn't provide the best arguments for both sides. This puts the Justice Department in an interesting position. The DOJ takes the view that courts can't possibly resolve the legal issues on the merits because state secrets are involved. But because of Judge Taylor's scattershot approach, it will have to make arguments on appeal showing why her arguments are wrong on each issue; that will undercut its claim that the legal issues can't be disposed of without revealing privileged information.

Second, Judge Taylor found as a matter of fact that the secret materials she viewed ex parte don't affect the resolution of the case, except for the data mining claim. If that is a pure question of fact, it is subject to the clearly erroneous standard. Of course, if it is a mixed question of law and fact-- which I think it is-- it is subject to more searching appellate review. But either way, Judge Taylor made factual findings that help the plaintiffs on appeal, even if her analysis of the merits is rejected. It may not be accidental, then, that Judge Taylor spent more time on the state secrets issue than she did on the merits. She may have reasoned that the 6th Circuit would do the merits over anyway, but as a trial court judge she could have the most effect on the procedural issues.

Because Judge Taylor undercut the DOJ's state secrets arguments in the ways I have suggested, on appeal the DOJ will probably emphasize standing even more than it already has. But here's where Judge Taylor's rather innovative First Amendment argument comes into play. To win on standing, plaintiffs need not win on the merits; they need only show that they raise colorable claims of rights violations that injure legally protected interests that courts can remedy. The first amendment argument-- that the secret program chills protected expression and association-- is not a very good argument in its current form, but it is a colorable argument. It will take some work to defeat it. And that fact helps secure the plaintiffs' standing. By making what is not a particularly good argument about the First Amendment, Judge Taylor enabled the 6th circuit to address what is really the best argument-- that the NSA program violates Congressional law, in particular FISA.

Judge Taylor's opinion isn't really very good as a discussion of the merits. But district court judges know that this isn't the only thing that matters. Time will tell whether Judge Taylor's work on state secrets and standing pays off and keeps her ultimate judgment-- that the NSA program is illegal-- from being overturned.

Contrary to the assertions, the opinion may well make it hard for the bushies and the bushie DOJ to overturn the ruling. The bushies are going to have to argue the merits of the NSA wiretap program and there they lose.

 

[bsnyder]

This is from Professor Balkin. http://balkin.blogspot.com/ Contrary to the assertions, the opinion may well make it hard for the bushies and the bushie DOJ to overturn the ruling. The bushies are going to have to argue the merits of the NSA wiretap program and there they lose.

Gee, a judge working to game the system that hard? Just part of the Rule of Law that you stand up for, right?

Seriously, if she's capable of being this crafty, why not just write an acceptable opinion on the merits of the case instead? Especially when it's such a slam dunk, as you keep reminding me. It doesn't even have to be a brilliant opinion, but it does at least have to avoid the current situation where you and the NY Times Editorial Board are the only voices who would possibly call it "well written".

 

[Mugg Mann]

Gee, a judge working to game the system that hard? Just part of the Rule of Law that you stand up for, right?

Seriously, if she's capable of being this crafty, why not just write an acceptable opinion on the merits of the case instead? Especially when it's such a slam dunk, as you keep reminding me. It doesn't even have to be a brilliant opinion, but it does at least have to avoid the current situation where you and the NY Times Editorial Board are the only voices who would possibly call it "well written".

Without even looking hard to see who else there was, the following newspaper editorial boards disagree with you, devalue your attempted spin, and fully support the judge's decision:

Boston
http://www.boston.com/news/globe/ed...s/articles/2006/08/20/more_casualties_of_war/

Minneapolis
http://www.startribune.com/561/story/621110.html

Detroit
http://freep.com/apps/pbcs.dll/article?AID=/20060818/OPINION01/608180345/1068/OPINION

Pittsburgh
http://www.postgazette.com/pg/06231/714677-192.stm

Los Angeles
http://www.latimes.com/news/opinion/la-ed-nsa18aug18,0,584074.story?coll=la-opinion-leftrail

Charlotte
http://www.charlotte.com/mld/charlotte/news/opinion/15301577.htm


Combined with the supreme court ruling on the tortue of prisoners, the initiation of procedings into the legality of Bush's opinion of signing statements and now this, this is an administration that needs to be reigned in as quickly as possible.

 

[bsnyder]

Without even looking hard to see who else there was, the following newspaper editorial boards disagree with you, devalue your attempted spin, and fully support the judge's decision:

Boston
http://www.boston.com/news/globe/ed...s/articles/2006/08/20/more_casualties_of_war/

Minneapolis
http://www.startribune.com/561/story/621110.html

Detroit
http://freep.com/apps/pbcs.dll/article?AID=/20060818/OPINION01/608180345/1068/OPINION

Pittsburgh
http://www.postgazette.com/pg/06231/714677-192.stm

Los Angeles
http://www.latimes.com/news/opinion/la-ed-nsa18aug18,0,584074.story?coll=la-opinion-leftrail

Charlotte
http://www.charlotte.com/mld/charlotte/news/opinion/15301577.htm


Combined with the supreme court ruling on the tortue of prisoners, the initiation of procedings into the legality of Bush's opinion of signing statements and now this, this is an administration that needs to be reigned in as quickly as possible.

My contention has never been that no one supports the judge's decision. Plenty do. But they don't think it was a well-reasoned opinion, on the merits of the case.

But, I DO stand corrected. The L.A. Times editorial and the Mineapolis Star-Tribune editorial actually praised the judge on the merits, not just the result, although both pointed out that it may very well be reversed on appeal. The others just praised the opinion's result, and said nothing about the quality of the opinion itself.

So, we've got 3 of the most liberal editorial boards in the country, and Kyle, praising the judge's legal reasoning. And I do have to give props to the NY Times - at least they (unlike the LAT and the Strib) ran a news article that correctly informed their readers of the low regard the legal community had for the judge's skills, even as their Editorial page was painting a completely different picture. I had to LOL at one of the comments at althouse.blogspot.com in response to Tribe's nonsense:

And then there's also the way the press used to consult the conlawprofs at Harvard and Yale, and maybe Chicago and Stanford and confine their quotes to the pronouncements of these scholars. (I wonder which lawprofs advised the NYT that Judge Taylor had "eviscerated" the administration's arguments. It'd be funny if it was Tribe.)

 

[Geoff_M]

The law made provisions for a 72-hour window of opportunity to get a warrant from a FISA court that had been set up specifically for that purpose and in the 28-yr history of FISA, only ONE warrant had ever been turned down. That's the practical application in the real world.

Debate on this subject is all well and fine, but let's not throw in myths or only give half of the story. First the "72 hour window"... The public perception is that the government is allowed a 72 hour "free pass" to eavesdrop while the government attempts to get a FISA warrant. However, there's some fine print that comes along with the "72 hour emergency order". Before any eavesdropping can begin, the AG must certify that a "factual basis for issuance of an order" exists. In other words, the AG must declare that enough information has been gathered that will satisfy the probable cause conditions for a full FISA warrant application (which is expected to be filed after an emergency order). So for starters, the data collection cannot actually begin until the AG signs off on the order... so there's an automatic built in delay. Also such an emergency order wouldn't likely be allowed for things like an investigative "hunch" that would not offer the needed probable cause.

As for the "only one application has ever been turned down" comment... again, that's not quite the full story. After 2001, the FISA Court started to modify warrants as never before. As per the Seattle PI:

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court's operation. In 20 of the first 21 annual reports on the court's activities up to 1999, the Justice Department told Congress that "no orders were entered (by the FISA court) which modified or denied the requested authority" submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004 -- the most recent years for which public records are available.

The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.

Link

The paper speculates that Administration frustration with the modifications may be one of the reasons they opted to bypass the FISA court in the cases of some international call monitoring.

Also as for the data for the most recent year available, here's the FISA report to Congress for 2004: http://www.fas.org/irp/agency/doj/fisa/2004rept.pdf
You'll note that the FISA court made modifications to 94 warrant applications in 2004. You'll also note that the Bush Administration made 1,758 FISA applications that year. That's a bit odd for an Administration that's supposedly thumbing its nose at FISA.

Oh, and one quick note to Doc... Since you seem to hold the word of Larry Tribe in high esteem, I'd wonder if you'd post some of his recent comments regarding the "ABA signing statement" kerfuffle???

 

[TheDoctor]

Gee, a judge working to game the system that hard? Just part of the Rule of Law that you stand up for, right?

Seriously, if she's capable of being this crafty, why not just write an acceptable opinion on the merits of the case instead?

Her opinion was acceptable on the merits of the case. The DOJ was not contesting the merits of the case but only seeking to get the case dismissed on procedural grounds. Remember the definition of Civil Procedure that I quoted from the Unoffiicial Lawyer's Handbook? The bushies are doing their best to avoid reaching the merits of the issues.

As to the procedural issues, Professor Balkin has very good explanation for Judge Taylor's rulings. Anything that forces the DOJ to argue the merits of the wiretap program is a good thing. The analysis on the standing issue is very good. Again, standing is the type of issue that attempts to avoid the merits of the case and the courts normally do not favor rejecting a case on standing issues (look at the Delay case).

 

[TheDoctor]

This editoral points out one of the key issues raised by Judge Taylor's ruling, i.e. that bush is lawbreaker. http://www.fayettevillenc.com/article?id=240033

the president and the attorney general want to argue that their warrantless wiretapping program is “critical” to the security of the United States, do you think for one instant that the Supreme Court would refuse to hear an emergency appeal of a U.S. district judge’s ruling that it’s unconstitutional?

So what do we get instead?

Administration sources, speaking anonymously, quickly set about smearing Judge Anna Diggs Taylor: She was appointed by a (Gasp!) Democrat, and was divorced from a congressman who was later convicted of taking kickbacks. An academic was trotted out to spill scorn over the judge’s amateurish ruling (which, as those who read it can hardly help see, is nothing of the kind)......

The operant word, which has nothing to do with indignation or disappointment, is panic. The White House has for months frantically worked to keep this issue out of the Roberts Court. The president has been scrambling to get a political settlement that would enable him to lose without losing face. In fact, he personally subverted his own Justice Department’s effort to conduct an internal review of the program.

What accounts for the panic is that the administration’s impassioned arguments are hooey. The Constitution does not secretly give him the authority to do what the Constitution explicitly forbids. But he did it anyway — routinely broke laws that mandate prison terms, and publicly stated after the program was blown that it had been created on authority exclusive to him.

Taylor did nothing more than steer the disputants through the legal straits to the obvious conclusion regarding a free-wheeling, unaccountable spy plan that has tapped many but nabbed next to none: That particular authority is exclusive of everybody, presidents included. Indeed, it never was the framers’ intent “to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.” The president has a choice: back down, or continue trying to sell his offensive against Amendments 1 and 4 to an increasingly skeptical public.

 

[bsnyder]

Again, standing is the type of issue that attempts to avoid the merits of the case and the courts normally do not favor rejecting a case on standing issues (look at the Delay case).

Did she cite the Delay case, in her ruling?

 

[TheDoctor]

Did she cite the Delay case, in her ruling?

I doubt it but will look tomorrow. The point is that the GOP does not want to litigate these issues on the merits but want to hide behind procedural arguments to avoid the merits of these issues. In the Delay case, the GOP really pushed the standing issue and lost. Here the bushies are only really argueing the standing issue and the state secrets doctrine (which before this was very limited) and lost both issues. Evidently, the DOJ did not attempt to brief the merits of the issues and used all of their pages for briefing on standing and state secrets. Putting all of your eggs in one basket is a dangerous tactic.

Again, the GOP has adopted the definition from the Unofficial Lawyers Handbook and are trying to use procedural tricks to avoid discussing the issue. Gee, you are focusing on attacking the author of the opinion instead of wanting to discuss the substance or merits of the decision, i.e., whether bush's wiretap without warrant program is legal. I guess that the GOP may owe the author of the Unofficial Lawyer's Handbook some royalties for stealing their concept.

 

[Charade]

Again, the briefings did not comply with the law. The appropriate committees were not brief and the briefings that were done were done in violation of the law. It is amusing that misstatements in a civil depo are a big deal to conservatives but out right violations of the laws on briefing of Congress are okay. The briefings that you are so proud of were illegal and inadequate. The law is clear here and an impartial source has come down pretty hard on the bushies for playing games with these briefings. If the rule of law is to be respected, then bush needed to brief congress in accordance with the law. Of course respect for the rule of law is a foriegn concept to the bush administration.

So why didn't those that were briefed speak out long long ago? Surely they must have known the briefings were illegal. Or were they just incompetent?

 

[TheDoctor]

So why didn't those that were briefed speak out long long ago? Surely they must have known the briefings were illegal. Or were they just incompetent?

If they spoke, then they would have been accused of leaking national secrets and vilified just as you have vilified the NYT.

Why is complying with the law such a difficult concept for the bush white house? The bushies believe that they are above the law under the theory of a unitary president. Luckily the courts are rejecting the concept of the unitary president and holding that we do not have kings in the United States.

 

[Charade]

If they spoke, then they would have been accused of leaking national secrets and vilified just as you have vilified the NYT.

So which is more important (assuming the TSP is illegal which I believe it isn't regardless what that crackpot judge said) a President breaking the law (both with the TSP and an illegal briefing) or national secrets?

Why is complying with the law such a difficult concept for the bush white house? The bushies believe that they are above the law under the theory of a unitary president. Luckily the courts are rejecting the concept of the unitary president and holding that we do not have kings in the United States.

They don't believe they're above the law, they don't believe they are breaking the law.

 

[JoeEpcotRocks]

If they spoke, then they would have been accused of leaking national secrets and vilified just as you have vilified the NYT.

Why is complying with the law such a difficult concept for the bush white house? The bushies believe that they are above the law under the theory of a unitary president. Luckily the courts are rejecting the concept of the unitary president and holding that we do not have kings in the United States.

There's that "king" word again.

If everything is so black and white in your legal world, we do we have judges, courts, lawyers, etc. who have different opinions on what is legal and not? And why oh why would we need "courts of appeal" ? And how come if everything is so clear, the Supreme Court does not always vote unanimously?

Why is this such a difficult concept for you? Or are you just bitter about some past elections?

 

[TheDoctor]

Back to the substance. The State Secret defense is the main defense raised by the DOJ in this case. It is at best a weak defense. Here is a good analysis by John Dean. http://writ.news.findlaw.com/dean/20060616.html

The American Civil Liberties Union is the lead plaintiff in a federal lawsuit requesting that the National Security Agency (NSA) be enjoined from its ongoing violation of the Foreign Intelligence Surveillance Act (FISA) via its program of telephone surveillance of Americans. Joining the ACLU as plaintiffs are a number of attorneys, scholars, journalists and others who have been adversely affected by the program. The plaintiffs argue that the NSA program violates not only FISA, but also the Constitution's First and Fourth Amendments.

The U.S. Government, through its Department of Justice attorneys, has been desperately trying to get this case -- currently pending in the U.S. District Court for the Eastern District of Michigan -- dismissed. To this end, DOJ attorneys have invoked the "state secrets privilege" -- claiming, in essence, that the government cannot explain its actions because they involve national security. ....

Because of the increasing use of the "state secrets" privilege, it has been more closely studied in recent years. For example, University of Texas political scientists William Weaver and Robert Pallitto, after reviewing all the reported cases, have concluded that "the state secrets privilege … [is] now [being] judicially mishandled to the detriment of our constitutional system." This mishandling, they contend, is occurring because "the courts have unwisely acquiesced to executive power on this matter."

As one commentator nicely states it, the state secrets privilege was "born with a lie on its lips." When the government says "national security," the federal courts seem to cower. Yet anyone who has worked in this area knows that seldom is nation security truly at stake when the government claims it to be. Typically, the invocation of national security borders on being a hoax.....

When Judge Taylor conducts the July 12 hearing on the Administration's invocation of the "state secrets" privilege as a basis for dismissing the suit, she will face a classic dilemma facing all federal judges who must rule on the "state secrets" privilege: How is the judge able to know whether the government is making a legitimate claim?

The ACLU seems correct that the government's factual admissions here make the case for FISA violation, in particular, rather cut-and-dried, as a legal matter. Accordingly, the invocation of the state secrets privilege appears more a sword than a shield: A method to dispose of the case without litigating the legality of the government's actions.

But the paradox of the state secrets privilege is that the government can invoke it without saying exactly why, and many federal judges -- and, as noted, government attorneys -- have met this invocation with deference, mindful of the constitutional separation of powers.

Such deference, however, has not been earned by the Executive Branch. Solicitor General Griswold was snookered by Defense Department bureaucrats. Government officials admit that not less than half -- if not as much as ninety percent -- of classified information is incorrectly classified. Yet many federal judges follow the line of state secrets cases that are obsequious to the Executive Branch's claims when they relate to national security. They should not. By doing so, they are not truly fulfilling their role as constitutional co-equals of the Executive Branch. They are not checking, nor are they balancing. They are merely abdicating.

Many judges seem to believe that they must abdicate, for they are not competent to make determinations regarding national security matters. The truth is that, in fact, they are probably more competent than the agenda-driven officials within the Executive branch who make such determinations. Judges are experienced at weighing facts and their implications, and they certainly have the power to gather the information necessary. And life-tenured federal judges -- beholden to no one, and in no fear of job repercussions -- are able to be far more impartial than Executive Branch officials can ever be. It is no surprise that Executive Branch officials are grossly overprotective of secrecy; for them, that is the safest course.

Tom Blanton noted in his essay that "judges have many tools at their disposal for inquiring into and testing the government's claims" when invoking the state secrets privilege, including appointing "special masters with expertise and security clearances." (Special Masters may be appointed by federal courts to report back to the court when complex factual matters arise.)

Such a ruling could halt the growing abuse of the "state secrets" privilege by President Bush and Vice-President Cheney -- who have already used this privilege more aggressively than any presidency in history, and recently have only been increasing its use. While precise numbers -- because not all cases are reported -- are hard to come by, a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases."

It appears that the state secrets doctrine is just a way for the bushies to try and avoid the merits of this case.

 

[bsnyder]

I doubt it but will look tomorrow. The point is that the GOP does not want to litigate these issues on the merits but want to hide behind procedural arguments to avoid the merits of these issues. In the Delay case, the GOP really pushed the standing issue and lost. Here the bushies are only really argueing the standing issue and the state secrets doctrine (which before this was very limited) and lost both issues. Evidently, the DOJ did not attempt to brief the merits of the issues and used all of their pages for briefing on standing and state secrets. Putting all of your eggs in one basket is a dangerous tactic.

Again, the GOP has adopted the definition from the Unofficial Lawyers Handbook and are trying to use procedural tricks to avoid discussing the issue. Gee, you are focusing on attacking the author of the opinion instead of wanting to discuss the substance or merits of the decision, i.e., whether bush's wiretap without warrant program is legal. I guess that the GOP may owe the author of the Unofficial Lawyer's Handbook some royalties for stealing their concept.

Okay, I get it. In your view, the standing doctrine and state secrets privilege have no validity in our judicial system other than as a procedural "trick".

 

[LuvDuke]

Anybody up for a game of "Twister"?

 

[bsnyder]

Anybody up for a game of "Twister"?

You mean that game that the Democrats in Congress love to play?

They've gotten so good at it that they were able to justify overwhelming bipartisan support for confirming General Hayden's nomination as CIA director. This in spite of the fact that he was in charge of that NSA wiretap program, the one they all proclaim is illegal (but don't actually say we should stop utilizing it). And they were able to do it, and still give cover to those Democrats who have national aspirations in 2008 and need to appease the Far Left wing that's taking over their party.

Yep, they all look like pretzels these days.