[Eugene Volokh, August 17, 2006 at 1:27pm] Trackbacks
Federal District Court Decision Striking Down NSA Eavesdropping Program,

here. Naturally, expect a quick appeal.

All Related Posts (on one page) | Some Related Posts:

  1. NY Times article on NSA wiretapping quotes bloggers.--
  2. Should We Care About The Reasoning In Judge Taylor's Opinion? :
  3. Hardly a "Hard-Left" Position:...
  4. The NSA Eavesdropping Opinion and the First Amendment:
  5. The NSA Eavesdropping Opinion and the Fourth Amendment:
  6. Federal District Court Decision Striking Down NSA Eavesdropping Program,
Thorley Winston (mail) (www):
I’d say that the Democrats’ prospect of gaining control of either House just went from slim to none.
8.17.2006 2:32pm
te (mail):

I’d say that the Democrats’ prospect of gaining control of either House just went from slim to none.



So you think that the American electorate - who can name more of Snow White's Seven Dwarves than Supreme Ct. Justices - follow fed. dist. decisions?
8.17.2006 2:36pm
llamasex (mail) (www):
I’d say that the Democrats’ prospect of gaining control of either House just went from likely to guaranteed.
8.17.2006 2:37pm
Richard Bellamy (mail):
Thorley and llamasex are both wrong. The chances switched from 50% chance of gaining control of one house to 50% chance of NOT gaining control of one house.
8.17.2006 2:41pm
Rod Phares:
IANAL, but it strikes me as odd that plaintiffs could file and win a suit when they cannot demonstrate harm or even that they were affected by the defendant's actions.

Any lawyer commentators care to elaborate?
8.17.2006 2:41pm
Goobermunchermunch (mail):
Activist Judges!!!

--G
8.17.2006 2:42pm
some guest:
No offense Rod Phares, but I have to say that IANAL has to be among the worst internet acronyms I've come across. And kind of funny in a middle school way.
8.17.2006 2:44pm
txmikeindc:
Some choice quotes:

"The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself."

"There are no hereditary Kings in America and no powers not created by the Constitution."

Also, noted the use of undisputedly 9 times in the opinion. Somewhat interesting, considering the government disputed pretty much everything.

Something tells me their might be more than just a little bit of the law going on here.
8.17.2006 2:46pm
txmikeindc:
err... *there* might be... must proofread.
8.17.2006 2:47pm
Dan28 (mail):

IANAL, but it strikes me as odd that plaintiffs could file and win a suit when they cannot demonstrate harm or even that they were affected by the defendant's actions.


Well, the judge says "All of the plaintiffs contend that the TSP has caused clients, witnesses and sources to continue their communications with plaintiffs out of fear their communications will be intercepted." In other words, the widespread perception that people could be wiretapped causes a chilling effect on free speech, and that causes injury. Dunno whether that will hold, but that's the argument anyway.

I seriously doubt that there are many swing voters who approve of warrantless wiretapping. Those votes are already in the GOP base. This ruling probably helps Democrats IMO.
8.17.2006 2:48pm
Philistine (mail):

IANAL, but it strikes me as odd that plaintiffs could file and win a suit when they cannot demonstrate harm or even that they were affected by the defendant's actions.



See pages 15-24 of the linked opinion. According to the Court, the plaintiffs asserted their harm was:


All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.15 They also allege injury based on the increased financial burden they incur in having to travel substantial distances to meet personally with their clients and others relevant to their cases
8.17.2006 2:49pm
Dan28 (mail):

"All of the plaintiffs contend that the TSP has caused clients, witnesses and sources to continue their communications with plaintiffs out of fear their communications will be intercepted."


Obviously, that should have read DIScontinue their communications. The court spends more time on standing than any other argument, and I think its safe to say it is the most vulnerable point for an appeal.
8.17.2006 2:49pm
Mr. X (www):
txmikindc: The government arguments about AUMF and inherent powers overcoming the Youngstown presumptions about Presidential powers in the face of a contrary statute were, at best, just this side of frivolous.

Claims like that deserve strong language in an opinion. The White House has no clothes in this case and it's about time someone said so from the bench.
8.17.2006 2:50pm
txmikeindc:
One of the things I find most interesting is that often people argued that disclosure of the program did no harm to national security because everyone knew you could be wiretapped and that a warrant requirement was no big deal. Yet, apparently, according to the plaintiffs, there are a large number of people who are terrorists, the U.S. believes to be terrorists, or who are in organizations that the U.S. considers to be terrorists, who don't want to talk to people in the U.S. anymore because of the removal of the warrant requirement.
8.17.2006 2:50pm
Third Party Beneficiary (mail):
"IANAL, but it strikes me as odd that plaintiffs could file and win a suit when they cannot demonstrate harm or even that they were affected by the defendant's actions."

Although you're not a lawyer, I would still recommend that you start reading from the heading "Standing" at page 16 of the opinion linked above. It explains why the plaintiffs have suffered a present, non-hypothetical injury.
8.17.2006 2:55pm
Third Party Beneficiary (mail):
Sorry for coming late to the standing party. That'll teach me to post without refreshing the page.
8.17.2006 2:57pm
Davebo (mail):

The court spends more time on standing than any other argument, and I think its safe to say it is the most vulnerable point for an appeal.




Would make for an interesting appeal process. Would the administration offer proof that none of the plaintiffs have indeed been affected? And if so how? Surely not by revealing to the court, even in secret, a list of all warrantless taps and their targets.
8.17.2006 2:58pm
Rod Phares:
Philistine &Third Party,

Thanks for the direction. I certainly enjoy the lawyer comments on this site that allow laypersons to follow the political debates that hinge on delicate legal questions.
8.17.2006 3:07pm
Chris Bell (mail):
And this line was just plain beautiful:

[After explaining why the Executive is violating the 4th Amendment of the Constitution]

"The President of the United States is himself created by that same Constitution."

The limits of Executive Power, elegantly described in one sentence....
8.17.2006 3:14pm
WHOI Jacket:
Excuse me, I have some calls to Tora Bora I need to go make.........
8.17.2006 3:17pm
Anderson (mail) (www):
I’d say that the Democrats’ prospect of gaining control of either House just went from slim to none.

Geez, man, get outside the bubble more often ... fresh air, exercise, and all that.
8.17.2006 3:21pm
John Burgess (mail) (www):
I think I'll wait for the Fat Lady to sing before I start throwing any parties on this one....
8.17.2006 3:22pm
Charlie (Colorado) (mail):

Would make for an interesting appeal process. Would the administration offer proof that none of the plaintiffs have indeed been affected? And if so how? Surely not by revealing to the court, even in secret, a list of all warrantless taps and their targets.


I'm certainly not a lawyer, but my impression was that you generally need rather more to demonstrate standing than saying "you can't prove I wasn't harmed."
8.17.2006 3:24pm
Charlie (Colorado) (mail):
Continuing the "certainly not a lawyer" thing, can a District Judge in Detroit actually order the NSA in Maryland or overseas to do something and have it be enforceable?

Just in case someone detects some hidden snark here, I'm serious: I really don't know what, if any, limits there are on a District Court's powers.
8.17.2006 3:26pm
txmikeindc:
Charlie: Yes, they can. The court has jurisdiction over the parties and can thus assert its judicial authority over them. Federal court decisions are valid all over the country (and internationally on US parties, subject to treaties and such with the country in which the party is located). State court decisions are similarly enforceable because of the full faith and credit clause.
8.17.2006 3:37pm
non_Lawyer:
txmikeindc:

One of the things I find most interesting is that often people argued that disclosure of the program did no harm to national security because everyone knew you could be wiretapped and that a warrant requirement was no big deal. Yet, apparently, according to the plaintiffs, there are a large number of people who are terrorists, the U.S. believes to be terrorists, or who are in organizations that the U.S. considers to be terrorists, who don't want to talk to people in the U.S. anymore because of the removal of the warrant requirement.

It is interesting. But not surprising, since those types always want to have it both ways. And, thanks to certain judges, they can have it both ways.
8.17.2006 3:42pm
Bob from Ohio (mail):
The judge dismisses Laird on the standing issue and focuses on an EPA case. Laird seems strongly on point to me.

Her state secrets section also seems weak.

She has some strong langauge (not a king, the "administration's war on terror [not the United State's war]) that means nothing legally. It will cheer opponents and appall supporters of the President. Her status as a Carter appointee will be a political talking pont certainly.

The order will be quickly stayed by the 6th Circuit. (I say it is 60-40 that the 6th Circuit will reverse on either the standing or state secrets doctrine but who knows.) So, the merits will perhaps never be reached. Whatever the political effect, the legal effect of this ruling is minimal.
8.17.2006 4:06pm
Just an Observer:
Gee, I came here looking for legal analysis of Judge Taylor's opinion, but I see that first comments are about the political implications. So I'll bite.

I think this is a net negative for the President politically. There is a myth, unsupported by polls, that the public is overwhelmingly in favor of the NSA wiretapping. As I recall. the split has been about 50-50 in polls, with the pro/con balance tipping depending on how the question was asked. If the question emphasized the concept of "terrorists," a slight plurality favored the wiretaps; if the question mentioned something like "without warrants," the plurality was against it.

Clearly, people want terrorists surveilled, but legally. I have never seen a poll that actually addressed whether the NSA program is lawful. Now that a federal judge says it is both unlawful and unconstitutional, I think there will be less public support for Bush on this matter.
8.17.2006 4:13pm
Stephen_Ve (mail) (www):
My question is will the Executive comply with the Court's Order to shut down the program, and how will we know if it doesn't?
8.17.2006 4:56pm
Tom Holsinger (mail):
JAS,

The whole subject is politics. The law here is secondary - at most it is a vehicle for political expression.
8.17.2006 5:11pm
Dave Hardy (mail) (www):
Don't know as I find the standing argument persuasive, in terms of caselaw (which I do think is too narrow, but I don't wear a black nightgown). If the potential terrorists were to sue to challenge some anti-terrorist statute, on the ground that it caused them to refrain from legal acts because of fear of prosecution, the suit would likely be dismissed, with references to the mass of caselaw saying fear of prosecution, or refraining from actions out of that fear, isn't enough (absent a very specific threat to prosecute the plaintiffs). Here it's more attenuated. Plaintiffs say that someone else refuses to talk to them since that someone else fears being overheard, which might in turn lead to prosecution.

Of course, it is a good illustration of a stock use of the standing doctrine (to the extent there *is* a standing doctrine) -- dismiss causes of action the court does not like, and allow those that it does.
8.17.2006 5:21pm
Just an Observer:
The injunction against the NSA program will be stayed pending an appeal, according to a White House reaction statement, which begins:

Statement on the Terrorist Surveillance Program

Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people. Today a federal judge in Michigan has ruled that the Terrorist Surveillance Program ordered by the President to detect and prevent terrorist attacks against the American people is unconstitutional and otherwise illegal. We couldn't disagree more with this ruling, and the Justice Department will seek an immediate stay of the opinion and appeal. Until the Court has the opportunity to rule on a stay of the Court's ruling in a hearing now set for September 7, 2006, the parties have agreed that enforcement of the ruling will be stayed.
8.17.2006 5:31pm
NickM (mail) (www):
That this judge is a Carter appointee is the least of the talking points.

She is the widow of Detroit Democrat Congressman Charles Diggs, who was convicted on 29 counts in 1978 arising out of a kickback scheme he ran through his office. He was stripped of his committee assignments and censured by the House, but still won reelection in 1978. Anna Diggs Taylor was appointed the next year to the U.S. District Court, and Charles resigned his seat in 1980 (and went to federal prison, where he served 7 months of a 3 year sentence).

Charles's excuse for taking $66,000 from his own staffers was that he was in "dire financial straits". What did Anna know about what he was doing, and when did she know it?

Nick
8.18.2006 2:54am
stranger from a strange land far away (mail):
Well, Nick, if judge Anna did something inappropriate, you ought to mail your congressperson, suggesting she should be impeached. As they used to say in DC -- bring it on!
8.18.2006 8:26am
NickM (mail) (www):
Sure, stranger, and while I'm at it I'll contact my Senators too.

On second thought, I think I'll contact other people's Congressmen, since mine won't care (hint: Boxer is one of my state's Senators).

Bring something better.

Nick
8.18.2006 3:07pm