Thursday, August 17, 2006

ACLU, et al., v. National Security Agency, et al.

I have taken a preliminary look at Judge Anna Diggs Taylor's decision enjoining the NSA's Terrorist Surveillance Program. Whether or not you think she got it right, the opinion is embarassingly simplistic. She simply doesn't address the issues that have divided legal commentators since the existence of the program was disclosed. For example, she finds that the program violates the Fourth Amendment without addressing any of the arguments that many, if not most, commentators have found to have established that it doesn't. She thinks that the program "obviously" violates the Fourth Amendment without addressing any of the potential exceptions to a warrant requirement (e.g., by analogy to border searches which do not require warrants or a "foreign intelligence" exception left open by the Supreme Court in the Keith case). All she really does is say that the "bill of rights" must be relied notwithstanding Congress' Authorization for the Use of Military Force in conducting the War on Terror, but that doesn't answer the question of what the "bill of rights" requires with respect to the gathering of foreign inteliigence from international communications.

She may have done this because she wanted to resolve the case without getting hung up on the government's assertion of the "state secrets" privilege. The government had argued that the case had to be dismissed because disclosure of the program's details would reveal state secrets and harm the national interest. She agreed that the government had properly asserted that privilege, but went on to rule anyway, saying that she didn't need to know the details of the program. A more thorough and intelligent analysis of the Fourth Amendment issues might have required that.

I think there is still a good chance that the case will get kicked for lack of standing. Only people who have suffered a sufficently concrete injury are able to sue and none of the plaintiffs here could show that any of their communications had been monitored. She held that there was standing because the plaintiffs alleged that their sources were deterred from speaking on the phone due to the existence of the program. But the Supreme Court has held that an allegation that communication is chilled by the mere existence of a survaillance program does not confer standing. She tried to distinguish that case by arguing that the plaintiffs here alleged that their sources really wouldn't talk on the phone amd that there is a more direct relation between the TSP and the calls they want to make than was present in the prior case. That might work (its a lot better than the Fourth amendment analysis). It does respond to a natural inclination to avoid a Catch -22 (i.e., you can't challenge our program for monitioring your calls in secret because you don't know if we did it and we won't tell you if you did it because it's a secret), but it isn't self evident. Any program of goverment surveillance - even the FISA court and the taps that it orders - may have a chilling effect on persons who may be subject to them. Does that mean that those persons could challenge the constitutionality of those programs without demonstrating that any of their communications had been monitored? I don't know that the Sixth Circuit (or the Supremes) will want to open that door.

In short, I think this is far from the last word and, as a first one, its not well put.


Dad29 said...

Any program of goverment surveillance - even the FISA court and the taps that it orders - may have a chilling effect on persons who may be subject to them.

Viz. the popularity of radar detectors on the roads.

Jay Bullock said...

Rick, I wonder what you think of the notion, advanced by Marty Lederman and Glenn Greenwald that one reason Judge Taylor's ruling was so thin is that the Justice Department never raised the objections that you and others outside the case do? In other words, she couldn't rule on "potential exceptions to a warrant requirement," for example, if the DoJ didn't bring them up in the first place.

Rick Esenberg said...


It's fair to say that a judge normally won't address arguments not raised by the parties, but I don't know that this applies in a case like this. Nor do I know that it is fair to say that the US did not raise the arguments that she failed to address. Nothing in the posts to which you link establish that. And even if the government had not made extremely obvious arguments, you can't enjoin the government's position in time of war without addressing the issues that you know are there.

I think there is no way to say that this was a good effort. And I have yet to hear of any one who says that it was. Liberals and conservatives seem to agree that this opinion was, legally, illiterate.

But I also acknowledge that the other side could make a much stronger argument than she did and that, on appeal, the fact that she mailed it in won't (much) matter. What I am saying is that this opinion means nothing because it does not represent an engagement with the legal issues presented.

Jay Bullock said...

Thanks, Rick. I've been thinking for a couple of days now that perhaps she recognized that her decision would, basically, be a place-holder anyway, knowing that SCOTUS would start from scratch.

Anonymous said...

I can't stand these conservative judges, the ones that think the Constitution is worth preserving.