Wednesday, July 11, 2007

Analysis of recent NSA spying decision

Marty Lederman at Balkanization has an in-depth analysis of the recent decision of the 6th Circuit appeals court to side with the Bush administration in the NSA spying case. As does Dan Solove at Concurring Opinions. Lederman says:

"Judge Gilman was the only judge to reach the merits. He did the right thing -- he ruled on the FISA question without reaching the First and Fourth Amendment questions. And he held, correctly, that the TSP program violates FISA, and that enactment of the AUMF does not alter that result. His analysis of the statutory question (pages 58-61) is excellent. He also holds that FISA is constitutional as applied to this program, i.e., that the President does not have an Article II power to disregard the statute (pp. 62-63). I think this conclusion is correct, too; unfortunately, Judge Gilman could have done more to defend it -- he merely holds (quoting the Jackson concurrence in Youngstown) that the President's Commander-in-Chief authority is at its "lowest ebb" here, without fully explaining why the President loses at the lowest ebb in this case.

The standing analyses of the three judges are complicated -- real FedCourts inside baseball. I think it will be difficult to explain to laypeople what constitutional value is served by not allowing the courts to reach the merits...

Let's put it this way: This is not a case in which the govenment's alleged unlawful conduct did not harm anyone and in which the judiciary is therefore merely being asked to sit in judgment of a coordinate branch's lawfulness -- something that arguably is better suited for the political branches. There is no doubt that many, many U.S. persons were legally injured by the TSP program (at least to the effect their statutory rights under FISA were violated). Indeed, it is almost certain that some of the plaintiffs and/or their clients were surveilled under TSP (and would not have been surveilled, certainly not to the same extent, if the NSA had complied with FISA -- see below). Therefore, even if one accepts the modern Supreme Court standing doctrine, there are some plaintiffs out there with standing to sue -- at worst, we simply can't tell who those persons are. (Moreover, such indeterminacy and uncertainty about the scope of the program actually increases the number of persons who fear such surveillance and whose speech is therefore chilled.) And it is highly likely that there are persons with standing among the plaintiffs themselves.

Where that is the case, and where the only reason we cannot identify for certain which plaintiffs were surveilled is because of the wrongdoer's own secrecy, wouldn't that argue for at least a rebuttable presumption that there are some in the plaintiff class with standing? Indeed, isn't that presumption even stronger here because the NSA is unwilling even to claim, let alone to prove, that it did not surveille any of the plaintiffs or their clients in the TSP program? (If the NSA did not, in fact, surveille any of them, I can think of no good reason -- certainly not a so-called state secrets privilege -- why the agency could not inform the court of that fact.)"

Solove makes a similar point and does a first amendment chilling speech analysis:

"The plaintiffs claimed that the NSA wiretapping violated, among other things, the First Amendment, Fourth Amendment, and the Foreign Intelligence Surveillance Act (FISA).

According to Judge Batchelder's opinion, the plaintiffs could not establish standing because they could not directly prove that they were subject to surveillance. One of the problems with the court's reasoning is that there is little way for the plaintiffs to find out more specific information about whether particular plaintiffs' phone calls have been wiretapped...

Judge Batchelder also concluded that it was unclear whether the potential chilling effect of the surveillance on the plaintiff's freedom of speech "can fairly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant...

One of the difficulties with this line of reasoning is that it runs contrary to the very rationale behind warrants. Judge Batchelder seems to be suggesting that obtaining a warrant has no impact on whether people are chilled in their expression. But according to the rationale behind the warrant requirement, it is the process of the government having to justify its searches before the judiciary that gives us the assurance that we can exercise our freedoms without the fear of improper government surveillance... There is a big difference between a system of highly regulated surveillance subject to oversight and limitation and a system of unregulated surveillance without oversight or limit beyond the whims of the executive branch."

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