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Judge Orders DOJ to Expedite Release of NSA Documents:
The first judicial opinion touching on the NSA domestic surveillance program was issued today, and it didn't go well for the Bush Administration.

  The case involved a skirmish over a FOIA request made by the Electronic Privacy Information Center (EPIC) in December for discoverable documents relating to the program, and in particular EPIC's request for expedited processing of its request. EPIC sought the following items from DOJ "from September 11, 2001 to the present concerning a presidential order or directive authorizing the National Security Agency ('NSA'), or any other component of the intelligence community, to conduct domestic surveillance without the prior authorization of the Foreign Intelligence Surveillance Court":
(1) an audit of NSA domestic surveillance activities;
(2) guidance or a "checklist" to help decide whether probable cause exists to monitor an individual's communications;
(3) communications concerning the use of information obtained through NSA domestic surveillance as the basis for DOJ surveillance applications to the FISC; and
(4) legal memoranda, opinions or statements concerning increased domestic surveillance, including one authored by John C. Yoo shortly after September 11, 2001 discussing the potential for warrantless use of enhanced electronic surveillance techniques.
  The decision issued today considered EPIC's motion for a prelimary injunction ordering DOJ to comply with its request within 20 days. DOJ's position was that the request should be expedited, but that it should not be required to set a date by which the request would be answered.

  Judge Kennedy rejected DOJ's position, and ordered DOJ to review the documents, determine what is discoverable, and comply with the request in 20 days. Some of the language was particularly notable:
  Under DOJ's view of the expedited processing provisions of FOIA, the government would have carte blanche to determine the time line for processing expedited requests, with the courts playing no role whatsoever in the process. When pressed at the preliminary injunction hearing as to what delay would be excessive enough such that a court could properly invoke its authority to compel production, counsel for DOJ was unable or unwilling to give an answer. Rather, DOJ's counsel suggested that the court and the requestor simply must take at face value an agency's determination that more time is necessary, regardless of the time that has elapsed since the request was filed. DOJ's position is easily rejected.
  As EPIC suggests, DOJ's reading of the statute would give the agency unchecked power to drag its feet and "pay lip service" to a requester's "statutory and regulatory entitlement to expedition." . . . . Adopting the government's position—that an agency has unfettered discretion to determine how long is practicable for processing expedited requests—would require the court to abdicate its "duty" to prevent "unreasonable delays in disclosing non-exempt documents."
  . . .
  Beyond losing its right to expedited processing, EPIC will also be precluded, absent a preliminary injunction, from obtaining in a timely fashion information vital to the current and ongoing debate surrounding the legality of the Administration's warrantless surveillance program. President Bush has invited meaningful debate about the warrantless surveillance program. David E. Sanger, In Shift, Bush Says He Welcomes Inquiry on Secret Wiretaps, N.Y. TIMES, Jan. 12, 2006. That can only occur if DOJ processes its FOIA requests in a timely fashion and releases the information sought.fn9
  [fn9: DOJ argues that "[b]ased upon the information that the government has already made public . . . plaintiff is fully able to participate in the current public debate." Def.'s Opp'n at 18. This argument is quickly rejected, for as EPIC correctly argues, "a meaningful and truly democratic debate on the legality and propriety of the warrantless surveillance program cannot be based solely upon information that the Administration voluntarily chooses to disseminate." Pl.'s Reply at 8 (quotation omitted).]
  . . .
  . . . Finally, given the great public and media attention that the government's warrantless surveillance program has garnered and the recent hearings before the Senate Judiciary committee, the public interest is particularly well-served by the timely release of the requested documents.
  DOJ counters that a preliminary injunction will actually harm the public interest. Specifically, DOJ suggests that requiring the agency to finish its processing within twenty days will increase the chances that the agency will inadvertently disclose exempted documents. . . . To be sure, the court does not wish for DOJ to inadvertently release exempted materials.. . . However, "[m]erely raising national security concerns cannot justify unlimited delay." Id. Congress has already weighed the value of prompt disclosure against the risk of mistake by an agency and determined that twenty days is a reasonable time period, absent exceptional circumstances, for an agency to properly process standard FOIA requests. Here, DOJ has not yet made any specific showing that it will not be able to process the documents within the time period sought by EPIC. Vague suggestions that inadvertent release of exempted documents might occur are insufficient to outweigh the very tangible benefits that FOIA seeks to further—government openness and accountability.
  It's only a district court decision, of course. And as critics of the opinion will surely point out, it's a district court decision issued by a Clinton-appointed judge. But my guess is that we'll be seeing more decisions along these lines in the future.

  Thanks to Howard for the link.
Joe Jackson:
I read the whole decision, and am left wondering whether this judge has ever heard of Chevron.
2.16.2006 1:37pm
Choosing Sides 2:
How is this a Chevron case? There are no agency rules. Even if such rules existed, without an allowance for comments, they would only be valued for their persuasiveness.
2.16.2006 1:42pm
alkali (mail) (www):
Chevron is applicable in cases where the agency is charged with administering that statute. DOJ is not charged with administering FOIA (though it is, like most all other federal agencies, subject to that statute).
2.16.2006 1:43pm
boonelsj (mail):
Yeah, I don't get how Chevron is applicable here either. Is there something not in Orin's excerpt we're missing?
2.16.2006 1:45pm
Joe Jackson:
To be more specific, I think the block quote above should have included the paragraph that immediately precedes it in the full text:

DOJ argues that the "as soon as practicable" language ... should be interpreted to impose no concrete deadline. Rather, according to DOJ, the court should interpret expedition under FOIA to require merely that an agency move a request "to the head of the line." ... Moreover, DOJ insists that courts should defer to an agency's determination that it is giving priority to a request and processing it "as soon as practicable."

This all seems pretty reasonable, and is certainly in line with the deference shown in other areas.
2.16.2006 1:46pm
A.S.:
The first judicial opinion touching on the NSA domestic surveillance program

Let's face it, the opinion has nothing at all to do with the legality of the NSA program. It's solely a FOIA case. While Orin summarizes the case pretty well, that first sentence seems pretty misleading.
2.16.2006 1:54pm
Justin (mail):
I've rarely heard of a blanket policy of giving deference to the REGULATED target of a statute been argued before.

Regardless, while the judge should be MINDFUL of the government's claims and pragmatic issues, it seems that absent a Chevron or some other delegation issue, it is a JUDGE who gets the final say on the interpretation of "as soon as practicable"
2.16.2006 2:00pm
Anderson (mail) (www):
Not even controversial, folks:
When pressed at the preliminary injunction hearing as to what delay would be excessive enough such that a court could properly invoke its authority to compel production, counsel for DOJ was unable or unwilling to give an answer. Rather, DOJ's counsel suggested that the court and the requestor simply must take at face value an agency's determination that more time is necessary, regardless of the time that has elapsed since the request was filed.
What federal judge is going to take that seriously? If the court says, "Counsel, give me an idea of how long is too long," you don't shrug.
2.16.2006 2:05pm
OrinKerr:
A.S. writes:

Let's face it, the opinion has nothing at all to do with the legality of the NSA program. It's solely a FOIA case. While Orin summarizes the case pretty well, that first sentence seems pretty misleading.

What exactly was misleading? A.S., I don't follow.
2.16.2006 2:07pm
Medis:
For what it is worth, "touching on the NSA domestic surveillance program," seems like an adequately qualified description to me.

Anyway, I will now go back to mentally steeling myself for reactions that I predict will be predicated on the implication that this judge has ordered the government to reveal important national secrets.
2.16.2006 2:16pm
Bryan DB:
Joe Jackson,
I think Chevron only applies when an agency is interpreting a statute over which it has expertise. DOJ is not charged with administering the FOIA statute, so far as I know, and is only subject to its provisions. I don't think Chevron is applicable in these circumstances.
2.16.2006 2:27pm
gr (www):

Anyway, I will now go back to mentally steeling myself for reactions that I predict will be predicated on the implication that this judge has ordered the government to reveal important national secrets.


I can't wait till stoptheaclu.com finds out about this opinion. (ACLU was co-plaintiff).
2.16.2006 2:29pm
A.S.:
Seemed to me implying that it touches on the legality of the NSA program. It's only after reading the rest of your description that you realize that it has nothing to do with the legality of the program. Perhaps I was just reading too much into that first sentence.
2.16.2006 2:33pm
Defending the Indefensible:
A.S.:

Where did Prof. Kerr say or imply that this decision touched on the legality of the NSA program. Part of the quoted memorandum opinion did reference the "current and ongoing debate surrounding the legality" of the program, but those are the judge's words, not Prof. Kerr's.
2.16.2006 3:10pm
Anderson (mail) (www):
Seemed to me implying that it touches on the legality of the NSA program. It's only after reading the rest of your description that you realize that it has nothing to do with the legality of the program. Perhaps I was just reading too much into that first sentence.

Well yes, if you insert words into what Prof. Kerr wrote, then it does become misleading.
2.16.2006 3:11pm
Just an Observer:
One usually must allow for spin when reading remarks by A.S.

Recall that he recently accused blogging professors here of "hypocrisy" if they failed to rebut all the arguments in the DOJ "white paper," yet A.S. now opposes a test case where those same arguments would be argued in a real court.

What was that H word, again?
2.16.2006 3:23pm
farmer56 (mail):
HEY! Who wrote the law????

Congress. If one of them had a spine??? they would fix it.(that is, or course if it needs a fix)
2.16.2006 3:36pm
gr (www):
Looks like the freepers heard the news. Anyone got an account there and can go give them a clue?
2.16.2006 3:43pm
Per Son:
I think under Chevron deference, the DOJ's interpretation is absurd. It is absurd to think that "as soon as practicable" means "for us to know and you to find out."
2.16.2006 3:45pm
OrinKerr:
As others have noted, Chevron deference does not apply in FOIA cases. DOJ is a subject of FOIA requests, not an agency tasked with administering the program.
2.16.2006 3:50pm
George Gregg (mail):
From the opinion: "...a meaningful and truly democratic debate on the legality and propriety of the warrantless surveillance program cannot be based solely upon information that the Administration voluntarily chooses to disseminate."

Amen, brother, and it's true for more than just the surveillance issue.
2.16.2006 4:07pm
Freder Frederson (mail):
Gee, I always thought "as soon as practicable" means, "you don't have to work nights and weekeds getting these documents together, but it better be a top priority and it better be pretty quick."
2.16.2006 4:14pm
srp (mail):
I don't know in detail how FOIA works, but can't they effectively stall by redacting the heck out of everything they produce and forcing the plaintiffs to jump through more procedural hoops to get what they want? Or just exempting lots of stuff on security grounds or protection-of-individual-privacy grounds? I've always had the impression that FOIA only works to pry information out quickly when nobody in the executive resists.

What puzzles me is the reason for stalling (if DOJ is not being sincere about workloads, etc.). I'm trying to think of some deadline after which it will be OK from the Admin's point of view to let out this stuff. It's hard to believe they're trying to postpone release until after the 2006 election, but I guess it's possible.
2.16.2006 4:22pm
gvibes (mail):
At my firm, "as soon as practicable" means "you better work nights and weekends getting these documents together."
2.16.2006 4:24pm
Anderson (mail) (www):
can't they effectively stall by redacting the heck out of everything they produce and forcing the plaintiffs to jump through more procedural hoops to get what they want?

That is Plan B no doubt, but a federal judge's contempt power is not to be trifled with. Of course, it's subject to D.C. Circuit review, but still---judicial conservatives often have principles, and I would not want to bet on their flagrantly denying the trial court's very considerable discretion in such matters.
2.16.2006 4:27pm
A.S.:
Where did Prof. Kerr say or imply that this decision touched on the legality of the NSA program.

Well, as I said, I thought the first sentence of the post implied it, I guess based on the fact that Orin has written on the legality of the program. Apparently that wasn't intended, so I apologize for saying it was.

Recall that he recently accused blogging professors here of "hypocrisy" if they failed to rebut all the arguments in the DOJ "white paper," yet A.S. now opposes a test case where those same arguments would be argued in a real court.

If you are referring to my comments on the "Footnote Four" post, I don't think that's a fair description of them at all. I didn't accuse anyone of "hypocrisy". I did comment that the post was based on a straw man argument. I think that's pretty clearly true. Or did you have something else in mind?
2.16.2006 4:37pm
A.S.:
At my firm, "as soon as practicable" means "you better work nights and weekends getting these documents together."

That's the difference between the private sector and government...
2.16.2006 4:38pm
Tom Holsinger (mail):
I suggest people here read the prefaces of books on American intelligence matters covering the period 1960 to the present. Those usually mention the sterling work of the authors' FOIA attorneys, and how the books could not have been written without them.

Don't hold your breath waiting for the production of these documents.
2.16.2006 4:40pm
af -- other one:
Orin: To the extent you get negative responses to your posts, I think people are responding to your snarky commentary. I know that I enjoy the factual updates as well as your thought-out legal analysis, but seeing lines like "it didn't go well for the Bush administration" and "my guess is we'll be seeing more decisions along these lines" are, to put it frankly, annoying. The comments are not supported by argument, and make you sound like a news commentator blowing everything out of proportion rather than an intellectual who is trying to carefully analyze these issues. Starting to think of you more like Anderson Cooper than Richard Posner. The first comment suggests that this is an important ruling, rather than a simple FOIA expedition issue which is largely tangential to the substantive issues. It is, in fact, the omnipresent battle in any FOIA case: how soon does the government have to process the material. The second comment is also devoid of any analysis. And, of course, it is at bottom inane given that the NSA controversy is not likely to bring a whole lot of FOIA expedition litigation that would lead to similar rulings. You are bootstrapping this case to suggest that it means more than it does. It is annoying. It is the same sort of stuff that people generally come to this site to avoid (particularly to Eugene's posts)-- uncareful analogies that riddle this world and cloud careful argument.
The bigger picture depends on the viability of the arguments on the merits, but you have not given us any more thinking on that issue. How about addressing the real arguments?
2.16.2006 5:05pm
JunkYardLawDog (mail):
Congress has already weighed the value of prompt disclosure against the risk of mistake by an agency and determined that twenty days is a reasonable time period, absent exceptional circumstances

War doesn't count as an exceptional circumstance? Disclosing war time surveillance tactics and methods doesn't count as an exceptional circumstance?

If Bush was Lincoln, he would put this judge in a military jail cell, and let him issue all his contempt orders from there. Assuming he cared to write them on his bed sheet in his own blood.

I'm no FOIA expert. Is furthering public debate of secret war time intelligence procedures something FOIA is supposed to be about? I was troubled by what to me seemed like not legal reasoning but political reasoning in the comments quoted by Orin which talked about the President inviting public debate and the current political matters in the congress as though these kinds of POLITICAL concerns normally outside the purview of the Judiciary were an appropriate legal argument for what FOIA demands.

If I were Bush, I would appeal, appeal, and then if necessary ignore. This kind of endangerment of our lives at a time of war by a meddling judiciary is the kind of thing that will come back to haunt the judiciary as a whole and the specific judges involved should their meddling in political questions cost American lives later.

Says the "Dog"
2.16.2006 5:05pm
Just an Observer:
Me: Recall that [A.S.] recently accused blogging professors here of "hypocrisy" if they failed to rebut all the arguments in the DOJ "white paper," yet A.S. now opposes a test case where those same arguments would be argued in a real court.

A.S.:If you are referring to my comments on the "Footnote Four" post, I don't think that's a fair description of them at all. I didn't accuse anyone of "hypocrisy". ... Or did you have something else in mind?

I was referring to this remark:

If Balkin really believes that a proper evaluation of the NSA program should begin with a substantive consideration of the merits of the Administration's legal case, he would have analyzed the White Paper. He didn't, which seems to me to be quite hypocritical.


My memory was not perfect. The word you used was "hypocritical," not "hypocrisy."
2.16.2006 5:09pm
Medis:
Thanks, Dog. For a moment there I thought I was preparing myself for nothing.
2.16.2006 5:20pm
Anderson (mail) (www):
AF: Orin: To the extent you get negative responses to your posts, I think people are responding to your snarky commentary.

What, you call that "snarky"? Don't you read the comment threads?

The ruling DIDN'T go well for the Bush administration. And the court's flat rejection of untrammelled executive discretion DOES suggest that more decisions like it may be forthcoming.
2.16.2006 5:24pm
Per Son:
Junkyardlawdog:

The case is about access to documents concerning the authorization of the program, not a fishing exhibition to put the fruits of the surveillance on the web. A FOIA request is not a political question, and the government is certainly able to redact documents and rely on exceptions. However, in this case they seek carte blanche denial or unlimited amounts of time. That is not what FOIA is about.

Additionally, your comment regarding Bush ignoring the courts is quite scary. I always thought the politics of the commentators varied, but this is the first time I see comment saying that the President is above the law. Sounds like a pro-divine right of kings or pro-dictator type post.
2.16.2006 5:27pm
Per Son:
For those who do not like Orin's comments or find them "annoying," keep in mind that this is a blog and not a law review.

Nuff said.
2.16.2006 5:29pm
Just an Observer:
I think there are intangibles that may be at play in the judiciary generally, albeit not universally, with respect to the Bush administration's attitude toward the Article III branch. When judges have discretion, those intangibles may sometimes come into play.

When Michael Luttig, who actually was in substantial agreement with the government in the original Padilla case, was prompted to rebuke the government recently for its tactics, that got my attention.
2.16.2006 5:34pm
OrinKerr:
AF-- the Other One,

To be honest, I don't understand your objection. I am not a journalist, or BNA news service writer, so a litle color commentary seems perfectly appropriate. The only negative commentary to my post was an objection (later mostly withdrawn) to one sentence that the commenter misread. And given that I have written more extensively on the legal analysis of the NSA surveillance program than probably anyone else in the blogosphere, it seems quite odd to object that I am not addressing "the real legal arguments" here.

Finally, it is my experience as a lawyer, clerk, and professor that Judges will let their views of broader issues creep into decisions on ancillary points -- and that given that, the choice of language in Judge Kennedy's decision is worth following, even if right now the issue is only a technical dispute about FOIA. Judges choose language carefully, and I think Judge Kennedy had broader concerns in mind. I do not know why that insight is "annoying" and "uncareful." If you disagree with it, surely you can explain why in a more direct (and less, well, annoying) way.

Care to explain a bit more?
2.16.2006 5:38pm
Christopher Cooke (mail):
As someone who has used FOIA, and who, while employed by the Feds, had to assist the government in responding to FOIA requests, I will add a bit of insight.

First, the agency certainly can redact what it believes to privileged under any number of FOIA exemptions, including an exemption for national security/official secrets. I would expect the DOJ to do that here. However, the DOJ is supposed to provide a privilege log.

Second, FOIA doesn't require the DOJ to make up documents that don't already exist (except the privilege log, which is just to demonstrate the good faith basis for asserting privilege.)

As to JunkYard Dog's comments, we are not at "war" as there has not been a Congressional Declaration of War; Congress did pass an Authoriziation to Use Military Force, but that is not the same thing. And, nothing in FOIA expressly exempts the bureacrats at the DOJ who are the designated FOIA compliance officers from gathering the documents together to respond to the FOIA request, simply because there was an AUMF passed 4 years ago. Moreover, I for one hardly see how the Court's order directing an initial response from the DOJ will hinder the "war" effort, unless the Bush administration is planning to send FOIA compliance officers off to Iraq or Afghanistan, and they now will be too busy redacting things in response to the Court's order to go. While there may be interesting issues about what the DOJ can or cannot properly redact in responding to this request, we will have to wait for them to arise. They are not implicated just by this order.
2.16.2006 5:45pm
Defending the Indefensible:
JaO,

That Luttig rebuke was one of the most startling things I've read in the history of appellate decisions involving the government as a party. It was practically an amicus for certiorari from its own decision.
2.16.2006 5:46pm
A.S.:
The only negative commentary my post drew was by a commenter who (as I recall) always defends the Bush Adminitration whatever the stakes

No, that's not right at all. I think the arguments supporting the legality of the NSA program are much more substantial than those in opposition, to be sure. But I often oppose the Bush Administation. Heck, I even think Judge Kennedy's opinion in this case seems right.
2.16.2006 5:46pm
OrinKerr:
A.S.,

I actually changed my description before you posted your comment.

Maybe I am confusing you with another commenter, but I do seem to think of you as pretty knee-jerk on these issues. Can you point to some comments in which you disagreed with the Administration's positions?
2.16.2006 5:50pm
Medis:
JaO,

I think a lot of those "intangibles" simply come down to a matter of credibility. A lot of cases involve the government making various representations, and as part of their fact-finding role, judges have to assess the credibility of those representations.

My impression is that the government in the past has been well aware of this fact, and has generally tried to cultivate a reputation for scrupulous honesty. And to the extent that reputation is currently being undermined by the government's conduct, particular in court cases, judges will reasonably assign increasingly less weight to the government's representations.
2.16.2006 5:51pm
A.S.:
I was referring to this remark:


Oh. Balkin is not one of the "blogging professors here", but I guess you meant that differently. In any case, I don't see how my comment about Balkin is undercut by a judgment that it would be better to have the policy ratified by Congress rather than through a court case.
2.16.2006 5:54pm
JunkYardLawDog (mail):
Medis,

Your welcome. There are more people than you might think you feel the way I do on these war matters. Whether you agree with me or not, I try to be colorful enough to be entertaining or was it infuriating. Sometimes I forget which it is. (smile).

Says the "Dog"
2.16.2006 5:54pm
KMAJ (mail):
I think one makes a mistake if they think the ruling of Harry Kennedy is a precursor of any future decisions. Regardless of who nominated him, what I think you have here is the ACLU cherry picking the judge for their case who would give them the best chance for a favorable ruling. This is a judge who has passed a restraining order in favor of Guantanamo Bay detainees. It will be of greater import what the Circuit Court of Appeals rules in this case.
2.16.2006 5:55pm
Kovarsky (mail):
KMAJ,

The ACLU can't pick a federal judge. They pick a jurisdiction, then they get whatever judge they get.
2.16.2006 6:00pm
Anderson (mail) (www):
This is a judge who has passed a restraining order in favor of Guantanamo Bay detainees.

Is that especially shocking or liberal or something, when we have the likes of Stuart Taylor saying that Gitmo is holding lots of people for no good reason?
2.16.2006 6:03pm
JunkYardLawDog (mail):
Christopher Cooke,

The AUMF is a declaration of war. Even Joe Biden has stated this on national television. The constitution does not require any special or magic language be included in a declaration of war. The war can be ended any time congress desires. All they need to do is pass another bill that retracts the AUMF and declare directly or impliedly thereby that the war is over. They could also stop funding the war effort. Until these things are done by congress or the President declares victory pursuant to his C in C powers we are in fact at war, whether you like it or not.

Says the "Dog"
2.16.2006 6:04pm
KMAJ (mail):
Kovarsky,

Then they certainly lucked into the judge they got, didn't they ? Without any knowledge of how cases are assigned, or the procedures involved, on the federal district court docket, maybe you can tell me if smart lawyers know how to manipulate the system.
2.16.2006 6:07pm
RSwan (mail):
Christopher Cooke,

As far as the AUMF not being a declaration of war, the Supreme Court disagrees with you. I think I'll take their word over yours.
2.16.2006 6:09pm
Anderson (mail) (www):
maybe you can tell me if smart lawyers know how to manipulate the system.

The federal courts tend to frown on such things. Anyone know how the SDNY specifically deals with judge-shopping?
2.16.2006 6:09pm
A.S.:
Orin,

I can't recall posting on many threads other than on the NSA program, about which I obviously disagree with you. (I tried your search function, but that only brought up one comment of mine from a while ago.) So you only have the word of an anonymous poster, for what little that's worth. Again, I read something into your post that you didn't intend (as, it seems, did af), for which I apologize. I enjoy your posts a lot, and my disagreement with your analysis of the NSA program is merely that.
2.16.2006 6:11pm
JunkYardLawDog (mail):
Per Son,

The DOJ should have argued that any response on battlefield matters and battlefied surveillance, which this most certainly is, should be delayed until the WAR IS OVER.

I'm not suggesting that the President is above the law. I'm suggesting that the President's authority and responsibilities pursuant to the constitution at a time of war are above a statute that is being used to reveal or subvert the C in C in its battlefield war time surveillance. This request and the mere list of the log of available documents could reveal battlefield war time methods and practices. Hence, while I'm sure the President won't do it. If knowing what is at stake and the details programs in question he were to determine that he was not going to let the co-equal judiciary branch invade his C in C functions and impair battlefied surveillance and battlefield surveillance tactics and methods, then I would whole heartedly support him following in Lincoln's footsteps and giving the Judiciary Branch the finger. That's not monarchy, that's putting an arrogant and out of control judiciary branch in its place.

Says the "Dog"
2.16.2006 6:13pm
Kate1999 (mail):
KMAJ,

Rule 40.3 of the local rules requires random assignment. The rules are here.
2.16.2006 6:13pm
KMAJ (mail):
Thank you, Kate 1999.
2.16.2006 6:18pm
Anderson (mail) (www):
Thanks, Kate1999. One can try tricks like voluntarily dismissing the complaint if you draw a bad judge, then refiling &hoping for better luck, but if the court catches you at it, Rule 11 sanctions are available.
2.16.2006 6:19pm
Just an Observer:
A.S.,

Perhaps you are deliberately missing the point about your use of the word "hypocritical," which I note you did not retract.

The irony -- more polite than the H word -- of your own position remains here in the Court of Publid Opinion: Your credibility as advocate for "the merits of the Administration's legal case" is undermined by ducking review of those merits in a real court. Similarly, Bush's credibility has been undermined because he has failed to seek such validation for years.

It now appears that there is some movement in the direction of legislation. Whether such legislation would actually settle the profound issues raised by Bush's constitutional claims remains unclear.
2.16.2006 6:20pm
Steve:
As far as the AUMF not being a declaration of war, the Supreme Court disagrees with you. I think I'll take their word over yours.

Well, the Court said in Hamdi that we are certainly at war as long as active hostilities are ongoing in Afghanistan, but it studiously avoided the larger issue of whether we will continue to be at war for as long is it takes until "Terror" is no more. I think the Court hopes for a political solution in the meantime.
2.16.2006 6:24pm
KMAJ (mail):
Interesting, the assignment is not necessarily random but at the discretion of a three judge committee:

51
(b) CALENDAR COMMITTEE.
The assignment of cases to judges of this Court shall be performed by the Clerk under
the direction of the Calendar Committee. The Calendar Committee shall be composed
of three active judges appointed by the Chief Judge for one-year terms. No judge shall
be required to serve more than two successive one-year terms. All matters dealing with
the assignment of cases, including but not limited to any efforts to restrain or avoid the
enforcement or application of rules under this Part shall be referred to the Chairman of
the Calendar Committee for resolution by the Committee.
2.16.2006 6:27pm
bluecollarguy:
Christopher Cooke:

"As to JunkYard Dog's comments, we are not at "war" as there has not been a Congressional Declaration of War; Congress did pass an Authoriziation to Use Military Force, but that is not the same thing.

"

If we are not at "war", what are we at?

Would it be possible for you to show me the text in the constitution describing the method of declaring war?

And finally, why are you wont to give Congress the benefit of sitting on the fence? Whether Congress authorizes military force, says "we declare war' or simply states "Kick the Talibans Arse", the result is the same. We don't bleed in different colors.

2.16.2006 6:28pm
Steve:
Thanks, Kate1999. One can try tricks like voluntarily dismissing the complaint if you draw a bad judge, then refiling &hoping for better luck, but if the court catches you at it, Rule 11 sanctions are available.

The EDMI used to use a rotation system, where one complaint gets assigned to Judge A, the next complaint gets assigned to Judge B, and so forth. Along came Jack Kevorkian's enterprising attorney, Geoffrey Fieger, who filed 20ish copies of the same complaint - one for each judge on the court. He then voluntarily dismissed every complaint except the one assigned to the judge he favored.

This was clever, but as I recall, it certainly didn't work out very well for him with either the court or the State Bar. Such ploys are certainly not commonplace. And the less dramatic alternative of seeing that you are assigned to Judge X, dismissing your case and asking for a new random draw, typically will not work either. Virtually every court requires the plaintiff's attorney to make a "related case" certification stating whether there is any pending related case, or any previously dismissed case involving the same parties and subject matter. So you would either have to lie by failing to disclose the earlier case, or you would have to disclose it and end up before the same judge.

At least in the federal court system, you can jurisdiction-shop (subject to standard rules concerning change of venue), but I'm not aware of any legitimate means to judge-shop.
2.16.2006 6:34pm
A.S.:
Interesting, the assignment is not necessarily random but at the discretion of a three judge committee

As I recall, the District Court for the District of DC had a history of the Chief Judge (then Norma Hollaway Johnson) assigning cases to "friendly" judges during the Clinton scandals. I think this was put in to rectify the situation.
2.16.2006 6:35pm
A.S.:
Perhaps you are deliberately missing the point about your use of the word "hypocritical," which I note you did not retract.

That's right.

The irony -- more polite than the H word -- of your own position remains here in the Court of Publid Opinion: Your credibility as advocate for "the merits of the Administration's legal case" is undermined by ducking review of those merits in a real court.

I'm not sure I follow. There are two ways the program's legality could be ratified (at least the FISA question - obviously Congress could not validate the program from a 4th Amendment persepctive) - by Congress or by a court. So why would I oppose ratification by Congress? Just so I could have a chance of ratification by a court?
2.16.2006 7:03pm
Just an Observer:
A.S.,

If you and the President now abandon all the arguments made by the "white paper," then it matters less. However, if you stand by those arguments, you should be willing to have the DOJ tell it to the judge. Bush should have been willing to do that for the past several years.

Do you and the administration now concede that the 2001 AUMF authorized the NSA program all along, regardless of what future legislation might authorize? Do you and the administration now retract his claim that Article II renders any such authorization unecessary?

How do you expect those issues to be resolved by legislation? Your use of the word "ratification" seems to presume that Congress would capitulate entirely to Bush's position. (Perhaps that is what Sen. Pat Roberts meant today when he said the administration is now "committed" to legislation.)
2.16.2006 7:16pm
Just an Observer:
Correction, make that read: "Do you and the administration now concede that the 2001 AUMF did not authorize the NSA program all along"
2.16.2006 7:22pm
A.S.:
Do you and the administration now concede that the 2001 AUMF authorized the NSA program all along, regardless of what future legislation might authorize? Do you and the administration now retract his claim that Article II renders any such authorization unecessary?

How do you expect those issues to be resolved by legislation?


No. I don't expect any of those issues to be resolved simply because they've been made moot with respect to the NSA program. That the beauty of mootness - you don't have to resolve the difficult issues either way.

Your use of the word "ratification" seems to presume that Congress would capitulate entirely to Bush's position.

No, it only presumes that Bush would agree with whatever restrictions or oversight Congress decided to include.
2.16.2006 8:07pm
A.S.:
Should say: I don't expect any of those issues to be resolved simply because, upon ratification by Congress, they would be made moot with respect to the NSA program.
2.16.2006 8:10pm
Just an Observer:
A.S.: No, it only presumes that Bush would agree with whatever restrictions or oversight Congress decided to include.

How would it be "ratification" if Congress legislates conditions and restrictions on what is occurring de facto today?

If Bush continues to claim that he has "inherent" authority to do things, or not do things, in the area of foreign-intelligence surveillance in wartime regardless of statutory requirements, how can he "agree to whatever restrictions or oversight Congress decided to include?" Does he just keep his fingers crossed?
2.16.2006 8:41pm
Defending the Indefensible:
JaO,

I think given the administration's use of signing statements and innovative reinterpretations of law, they could climb down on this the same way they did on the DTA, and treat it similarly as being of only "advisory" impact.
2.16.2006 9:59pm
Medis:
This is from McClellan's Press Briefing today:

"Q On the NSA surveillance program. There's talk on the Hill that there may be some movement in a way to legislatively improve either FISA or create some sort of a better supervision of the NSA surveillance program that would satisfy one of the two of the branches, legislative or judicial. What is the White House's current view of that dialogue, and where it seems to be headed?

MR. McCLELLAN: There's good discussion going on with some members of Congress. We have worked very closely with Congress on the terrorist surveillance program. It is a critical tool that is both lawful and necessary. And that's -- and the President felt it was such a vital tool that he felt it was also important to keep Congress briefed about this program. And that's what he has done. We have briefed members of Congress more than a dozen times. It is a carefully tailored program that is aimed at intercepting international communications of al Qaeda or al Qaeda-affiliated terrorists. And that's what his focus is.

Hang on, I'm coming to the question I think that you're getting to.

So we have spelled out the legal rationale behind this vital tool. We don't believe that congressional authorization is something that is necessary, because, as the President has spelled out, and others have spelled out, he already has the constitutional and the statutory authority to authorize the terrorist surveillance program.

The President also has said that we will continue working with Congress. We will -- we are open to ideas regarding legislation. The one thing the President said was that he would resist legislation if it would compromise this vital program that helps save lives and prevent attacks from happening.

But we have seen some good ideas presented by Senator DeWine, and we are committed to continuing to work with Congress on legislation that would not undermine the President's ability to protect Americans. And so we'll keep working with members of Congress as we move forward.

Q In short, though, the administration is open to the idea of some legislative adjustments?

MR. McCLELLAN: Well, we previously expressed that we will work with Congress on this, and we previously expressed that we're open to ideas. We've talked about how there's kind of a high bar to overcome. But at this point, we've only heard ideas from Senator DeWine. We think there's some good ideas, but we have not seen actual legislation."

A "high bar to overcome"? Hmmmmmm.
2.16.2006 10:35pm
Tom Holsinger (mail):
Kate1999,

The D.C. bench has a bad reputation for assignment abuses among the judges appointed by Democratic Presidents. When a bench loses its reputation for impartiality, it does not get it back until all the offenders are gone.

KMAJ also has a point about Judge Kennedy's Gitmo ruling being a plausible indicator of bias by him here.

Everything I've heard about FOIA litigation makes it sound like a slow-motion nightmare, though I'd love to see any of Judge Lambreth's (spelling?) FOIA rulings given his experience with the Bureau of Indian Affairs trust fund litigation.
2.16.2006 11:24pm
Ryan Waxx (mail):
"Judge Kennedy"

'Nuff Said.
2.17.2006 3:43am
ipsley:
With regard to the AUMF being a declaration of war: To declare war, you have to recognize the other party as a nation, and the AUMF does not. Some of the laws of war may be found in the Hague Conventions, to which we are a signatory, at:
http://www.yale.edu/lawweb/avalon/lawofwar/lawwar.htm
2.17.2006 11:28am
af -- other one:
Orin -- in your comment post, you made the argument you did not make in the original post:


Judges will let their views of broader issues creep into decisions on ancillary points -- and that given that, the choice of language in Judge Kennedy's decision is worth following, even if right now the issue is only a technical dispute about FOIA. Judges choose language carefully, and I think Judge Kennedy had broader concerns in mind.



That argument is helpful and interesting, and subject to analysis. For one, it suggests that judges are being results-oriented in this area, tending to not follow the law to reach results that are contrary to the administration on any issue related to this controversy. Similar, in some ways, to the Posner analysis that if he thought the program was a good idea, he'd reach far and wide for a legal justification. But you criticized the Posner approach -- isnt this approach just as faulty?

Once you sussed the argument out, it became interesting. But I stand by my contention that simply lobbing unexplained statements like "my guess is that we'll be seeing more decisions along these lines in the future" is not interesting and not worth putting on the blog. In any event, this case will get far more interesting once it gets to the merits.

Oh, and I don't think you have written more on the legality of this program than anyone. You wrote a nice analysis at the very beginning that framed the issue quite well, and have promised more, but have not provided further analysis once the issues sharpened.
2.17.2006 12:16pm
srg (mail):
I agree with af- -the other one; I am awaiting Orin's analysis of the 42-page brief by the AG, and I also would like him to write more on the In re sealed case opinion.
2.17.2006 1:01pm
JunkYardLawDog (mail):
Ipsley,

I believe you are wrong. I don't believe the Hague convention in question applies to non-contracting parties, and exempts from compliance therewith contracting parties engaged against non-contracting parties. Al-Qaeda is not a contracting party, and therefore Hague wouldn't apply. I'm not 100% positive on this, but that's my understanding.

Further, I think there would be real doubt as to whether any treaty obligation can trump the constitution itself. The constitution is the highest law of the land, and a treaty certainly can not abrogate provisions of the constitution. It would also follow in my mind that a treaty can not impose requirements upon congress or the President or the Judiciary that increase what is otherwise required of them by the constitution.

The constitution doesn't require any magic wording, and as one poster noted upstream, the Supreme Court in current and I believe in past precedents has indicated that AUMF's and other similar war authorizing actions of congress are for constitutional analysis purposes a declaration of war.

Says the "Dog"
2.17.2006 1:06pm
Just an Observer:
srg: I am awaiting Orin's analysis of the 42-page brief by the AG, and I also would like him to write more on the In re sealed case opinion

I am awaiting the AG's presentation of that "brief" in a real court, which he conspicuously avoids.

Notably, the most expeditious route into a court to test the matter would be the FISA courts, where the government has standing. Those courts are really the only courts where the dicta In re Sealed Case quoted by the so-called "brief" is due any real weight.

And just as notably, the AG continues to cower from judicial review there of such a "brief." Why should the rest of us take it very seriously?
2.17.2006 2:25pm
Christopher Cooke (mail):
First, having read Hamdi again, I am inclined to concede that the Supreme Court appears to have assumed in that case that the AUMF was akin to a declaration of war, albeit an unconventional one. Of course, whether the AUMF is sufficient for all purposes, e.g., suspension of writ in times of "invasion or rebellion", I still have my doubts. But, I will go along that we are in some state of war, because hostilities in Afghanistan and with Al Qaeda are continuing.

As to Junkyard Dog's comments that "treaties" can't trump the Constitution, that is true, but misses the point. The US Congress (or the Senate, which must ratify any treaty) and the Executive Branch, can voluntarily assume obligations greater than those imposed by the Constitution, whether by treaty or by enacting legislation, and they do so all of the time. Obviously, the treaty cannot abrogate rights expressly guaranteed to US citizens under the Bill of Rights, as an example, but I don't see why the US, if it agreed to abide by a particular definition of "war" in a treaty, has done anything contrary to a right guaranteed by the US Constitution (which the Executive Branch and Congress presumably cannot contract away via a treaty). I don't know enough about the Hague conventions to know whether the US did so in ratifying that treaty, however.
2.17.2006 2:26pm
Wrigley:
Ryan Waxx,


"Judge Kennedy"

'Nuff Said.


It's the astute legal insight and relentless intellectual inquiry like yours that keeps me reading the VC. Keep up the good work!
2.17.2006 3:04pm
Christopher Cooke (mail):
Upon further research, there is a difference between a Congressional "Declaration of War," pursuant to Article I, section 8 of the Constitution, and a Congressional "Authorization for Use of Military Force". See the following study by the Congressional Research Service:

http://www.fas.org/sgp/crs/natsec/RL31133.pdf

So, I stand by my original post, that the AUMF was not a Declaration of War, under the Constitution, regardless of people saying we are "at war." And, I would note, that, having now read Hamdi again, the Supreme Court did not ssly decide this issue, so it is hardly controlling authority on whether an AUMF is a Declaration of War.
2.17.2006 3:22pm