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Sixth Circuit Stays Judge Taylor's Order:
The Sixth Circuit has issued a stay pending appeal of Judge Taylor's order requiring the government to shut down the NSA domestic surveillance program. I think it's hard to read too much into that, although note that the Sixth Circuit standards do incorporate one aspect of the merits: the stay indicates that this particular panel thought that DOJ had raised at least "serious questions" about the correctness of Judge Taylor's order shutting down the program.

  Hat tip: The Bashmanator.
Bruce Hayden (mail) (www):
Kinda like reading tea leaves.
10.4.2006 9:30pm
Bryan DB:
I believe Judge King in Oregon also recently ruled regarding the NSA program. He didn't get as far as ruling on the legality of the program, but he did rule that the case against the NSA program could go forward without disclosing state secrets. A much more narrow ruling that the one made by Judge Taylor.
10.4.2006 9:52pm
anonVCfan:
Should we take this to mean that there may, in fact, be "hereditary kings" in America?
10.4.2006 10:52pm
OrinKerr:
Funny, anonVCfan.
10.4.2006 10:58pm
Steve:
My recollection from practicing before the Sixth Circuit is that you get a different panel for these procedural matters than you do on the merits, and you don't find out who you have on the merits until the morning you show up for argument. So not only do I think this ruling was utterly standard, but it doesn't seem like it has any predictive power at all.
10.4.2006 11:17pm
Orestes:
Today's Order has at least some predictive power. Note three things. First and most important, this was a unanimous ruling from a panel that included judges Gibbons and Gilman, the Kennedy and O'Connor of the Sixth Circuit, if you will. Generally speaking, of the fourteen active judges on the Sixth Circuit, five are to the left of Gibbons and Gilman, and seven are to the right. That even these "moderate" judges found the stay standard met should at least raise some eyebrows, and gives us some idea of how the Sixth Circuit sitting en banc (should it come to that) would see the case.

Second, note how the panel goes to great lengths to emphasize that the bar is high for granting a stay: not merely a possibility of success on the merits, or even just the possibility of success on the merits plus irreparable harm that greatly outweighs any harm to the nonmovant from granting the stay, but rather "serious questions going to the merits." Only after setting out this high bar does the court conclude that "this standard has been met in this case."

And finally, note how the court in its very first sentence refers to the program at issue bluntly and unapolgetically as the "Terrorist Surveillance Program," a moniker that the district court judge could not bring herself to use even once in her opinion.
10.5.2006 12:04am
Just an Observer:
There still is opportunity for the lame-duck Congress to knock down this case.

The Wilson bill passed by the House last week not only would moot the case by legalizing warrantless surveillance, for good measure it contains a rather sweeping court-stripping section: When the AG or his designee utters an incantation of "state secrets" and "protect the United States from terrorist attack," such cases would get stripped from the jurisdiction of any court.

Specter's bill pending in the Senate probably also would moot this particular case, although the President reportedly has promised to excercise the option that bill would provide to submit the NSA program to limited review by the FISA courts.

Congress, not the courts, is where the administration hopes to prevail.
10.5.2006 12:40am
volokh watcher (mail):
I guess I'm more of a realist on this. I don't see any way in which the 6th Cir. would have denied a stay of the ruling.

We're talking about a program that is supposed to obtain national-security information to capture enemies or at least frustrate attacks. Congress is working on legislation, whether you agree with it or not, to legalize the program in some substantially similar form.

I know the panel touched all its bases in articulating the stay standard. But I think it's also fair to ask, what would America say if the 6th Cir. refused a stay and some disaster struck -- which I suspect would prompt someone speaking for the White House to say, "if only the 6th Cir. had let us continue the TSP"?

A stay was guaranteed. Too much risk not to.
10.5.2006 12:41am
Just an Observer:
Orestes: And finally, note how the court in its very first sentence refers to the program at issue bluntly and unapolgetically as the "Terrorist Surveillance Program," a moniker that the district court judge could not bring herself to use even once in her opinion.

I would read nothing into that tea leaf. The name was featured prominently in Judge Taylor's order:

IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter "TSP") in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter "FISA") and Title III; [My emphasis]


Thus it is not remarkable at all that the Sixth Circuit would follow the practice in its own order.
10.5.2006 1:03am
Orestes:
Just an Observer--

Fair enough, and good catch on looking to the Order (which never seems to get linked with the opinion).

This is a digression (and likely reveals the conspiratorialist right winger in me), but here's my thinking: Judge Taylor uses "Terrorist Surveillance Program" once in the Order (thereafter defining it "TSP") because she has to call the program what it's technically called when setting out her legally operative judgment. In her 44-page opinion, however, she calls it only the TSP, and the first time she calls it that she writes, "This is a challenge to the legality of a secret program (hereinafter 'TSP')..." My guess is Judge Taylor doesn't particularly like the name Terrorist Surveillance Program, thinking it stacks the deck by oversimplifying, much like some complaints concerning the "PATRIOT Act." I also think she probably realized that many more people would see her opinion than her Order. Thus, she uses only TSP in her opinion, and also cleverly places it next to "a secret program" so it can seem to readers like TSP is an abbreviation for "the secret program." This would also help explain her disparate treatment with respect to FISA, which she defines as the Foreign Intelligence Surveillance Act in her Order, yet feels the need to reiterate it as the Foreign Intelligence Surveillance Act at page two of her opinion (while never reiterating the meaning of the even more mysterious and ubiquitous "TSP" in her opinion).

But even if I'm right about that, it's a digression, I'll admit, because it's not very probative as to the Sixth Circuit's use of the term Terrorist Surveillance Program in its Order. The best I can do is say that Judge Taylor's opinion shows the leeriness of some to use the actual name of the program, and the Sixth Circuit's willingness to use it in the very first sentence of its Order, without scare quotes or definition, gives me a gut feeling that this panel (which included two centrists) was not nearly so viscerally bothered by this whole matter as was Judge Taylor.

In any event, I think my first two points in my original post were much stronger than this one.
10.5.2006 2:59am
JohnO (mail):
I think volokh watcher is right on. This case had "stay" written all over it because of the potential stakes (and the risk that a future terrorist attack would be blamed on the failure to stay the ruling).
10.5.2006 10:31am
Steve:
The best I can do is say that Judge Taylor's opinion shows the leeriness of some to use the actual name of the program

Heh, whether you love the program or hate it, "Terrorist Surveillance Program" is still an ad hoc label chosen for political purposes. It's not the "actual name" of the program. Do you really think people walk around the halls of the NSA asking, "So, how's the TSP going?" (as if there's only one program that involves terrorists)
10.5.2006 10:35am
Bruce Hayden (mail) (www):
I agree with the previous poster who suggested that the case had stay written all over it. If all you do is look at irreparable harm, the government wins. If the government doesn't get the stay, the program is shut down, and another 9/11 happens as a result, lives may be lost, and that is irreparable. But if it is stayed, and someone is illegally surveiled, that damage can be repaired - through damages and supression of any evidence gained illegally.

I really do believe that in the end, the members of the Judiciary are mostly going to come down here based on whether they think there is a war going on or not. If so, they won't want to have blood on their hands. If not, then they will discount that possibility, as, I suggest, Judge Taylor did.
10.5.2006 10:42am
Orestes:
Steve,

I recognize that Terrorist Surveillance Program is an ad hoc political name, but it's the one the White House has chosen for its program, and I suspect it's the name the government used to refer to the program in its briefs. And it's not like Judge Taylor didn't put forth a more technical name for it in her opinion; rather, she used the government's name but gave it minimal reference. As for what folks walking around the halls of the NSA might call it, I don't see how that's particularly relevant here.
10.5.2006 11:18am
Just an Observer:
One effect of the stay is political: It removes any time-critical rationale for rushing to legislate on the matter.

BTW, notice how the White House no longer argues in public that the program is legal under current law? That "argument" rather undercuts the rationale for legalizing it.

(Not that political actions of Congress are rational in the first place.)

But the lame-duck 109th Congress -- not the courts -- is obviously where the administration is hoping to win. It has yet even to brief the merits directly in this case or its parallel case before Judge Lynch in New York. The strategy all along has been to play rope-a-dope in the courts while seeking a political fix.

The action in Congress, stalled but not dead, is the endgame of that strategy. Not only would the major bills in Congress -- Wilson's bill in the House and Specter's in the Senate -- effectively legalize the de facto program that has been held to be unlawful, they make sweeping and general changes to the FISA statute beyond what the current program entails.
10.5.2006 11:31am
A.S.:
BTW, notice how the White House no longer argues in public that the program is legal under current law? That "argument" rather undercuts the rationale for legalizing it.

I don't think it's true that the Administration has stopped arguing that the program is legal. See, e.g., here ("The program is lawful" - September 5, 2006).

Moreover, the fact that there is a potential new law clarfying the situation doesn't seem to me to undercut the argument that it is already legal. One may just want utter clarity. For example, Bill Lockyer (AG of California) just brought charges against Patty Dunn of HP (and others) for pretexting. If he thinks pretexting was already illegal under California Law, why did California just pass another law outlawing pretexting? Does the passage of the new law undermine Lockyer's prosecution? I don't think so.
10.5.2006 12:39pm
Just an Observer:
A.S.,

That DOJ "Fact Sheet" to which you linked is hilarious. Yes it does assert that "the program is lawful," and recites several court cases in which various government anti-terror tactics have been upheld. But it conveniently omits any mention of the case at hand, ACLU v NSA, in which the court held the surveillance program to be quite unlawful!

That is an interesting concept of a "Fact Sheet."
10.5.2006 12:53pm
KeithK (mail):
A side question for the group here from a non-lawyer. Why is this question, which involves a surveillance program directed at international targets that may indirectly harm Americans, being addressed by judges in the Sixth Ciruit? (Or the Ninth, in the case that Bryan DB mentions.) I imagine that the plaintiffs were Michigan residents and thus went to a federal court in that state. But shouldn't it be brought in the Federal Circuit or DC Circuit? What happenes if there's a circuit split here? The NSA can carry on with the TSP but must stop when the suspected foreign terrorist calls someone in Michigan or Ohio? Seems odd to me.

Yes, I'd imagine that a circuit split on this question would almost immediately bring another stay and Supreme Court review. But in the hypothetical absense of a stay it seems to set up a ridiculous outcome.
10.5.2006 1:11pm
Just an Observer:
KeithK,

Such an injunction ordered by any circuit would be binding on the federal government anywhere. If the Sixth Circuit had not stayed Judge Taylor's order, the program would be shut down today.
10.5.2006 1:34pm