Oops -- I see that my co-blogger Jonathan posted about this case while I was drafting my own analysis. Given that, I will "hide" my post below the fold.
The opinion of the Sixth Circuit is
here, via Howard. The panel divided 2-1, with three separate opinions. Judge Batchelder and Judge Gibbons concluded that the plaintiffs lacked standing to sue because they had no evidence that they were actually subject to monitoring under the Terrorist Surveillance Program.
As I understand it, the plaintiffs in the case had argued that they thought they might be covered by the TSP, but had no particular reason (other than the apparent existence of the program) to think they in fact had been or were to be monitored. Their claimed injury-in-fact was that they were holding back on sending international communications out of fear that they were being monitored. The main question in the case was whether this claim was sufficient to establish standing to challenge the legality of the TSP program.
Judge Batchelder's opinion goes through the complaint claim-by-claim, explaining her reasons why the plaintiffs either lacked standing for each claim in light of this alleged injury or why the plaintiffs lost on the merits (or both). I am no expert in standing doctrine, but based on my quick read I tend to think this was the right approach and that the result seems correct.
Judge Gibbons' opinion argues the standing issue more broadly, reaching the same result as Judge Batchelder. Judge Gilman dissented, arguing that the attorney-plaintiffs had alleged sufficient harm to have standing. Judge Gilman then reaches the merits of the case, concluding that "the Bush Administration's so-called 'Terrorist Surveillance Program'" violates FISA and rejecting the "inherent authority" claim.
(Oh, and in case you're wondering at home, yes, the four opinions issued in this case do neatly match a political narrative. Judges Batchelder and Gibbons were appointed by Republicans, Bush Sr. and Bush Jr, respectively; Judges Gilman and Taylor were appointed by Democrats, Clinton and Carter.)
If you mean plaintiffs had no more reason to think they were being monitored than anyone else, that isn't accurate. It is publicly known that the NSA program intercepts communications involving people thought by the US government to be associated with Islamic terrorist organizations. Plaintiffs
This gives them far better reason to think they are being monitored than the average person.
If, on the other hand, you only mean plaintiffs had no direct evidence of actual monitoring, it seems to me you're setting the standing bar too high. When a secret program creates a reasonable fear of invasion of privacy that leads people to alter their behavior in response, why isn't that a concrete and particularized injury that is caused by the secret program?
Shorter version: no one can sue, and the administration can do whatever it likes to U.S. citizens so long as they keep secret which particular citizens they are doing it to.
I'm curious -- why do you think they had a "reasonable" fear of invasion of privacy? Wouldn't you need to know the details of the program to know if that fear is resonable or unreasonable? And what's the best case you would would rely on for the view that "reasonable fear" of being subject to monitoring creates standing to challenge a monitoring program?
Gilman is a "moderate" swing vote on the Sixth Circuit -- the most frequent swing vote -- although he was appointed by Clinton.
Gibbons is also a "moderate," although she was appointed by Bush, although she is a swing vote less often than Gilman.
The best case is Laidlaw. It said that "the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms . . is entirely reasonable . . and that is enough for injury in fact." Similarly, the proposition that a secret monitoring program of terrorism suspects would cause those who communicate with terrorism suspects to curtail their communications is also reasonable.
Note that the Sixth Circuit did not base its decision on the idea that plaintiffs' fear was unreasonable. Rather, it held that they needed evidence that they were actually monitored.
That's an uncomfortable position. Consider if the government had a program of secretly breaking and entering into the homes of people it suspected to be terrorists, but only acted as a voyeur, never disrupted the contents of the home, and never overtly used any of the evidence that it obtained. Would we find an injury there?
Admittedly, homes are different under the 4th Amendment, but here, we have a statute that governs the terms and conditions wiretapping, so I think the analogy can be reasonably applied in the sense that there is no expectation by those who communicate electronically that they will be subjected to warrantless surveillance.
But, as Scalia pointed out in his dissent in Laidlaw, there was "no demonstrated proof of harm to the environment." Plaintiffs were concerned about environmental harms, but in fact there was no discernible environmental harm. Their only injury was their fear of harm for which there was no direct evidence. (If you argue that the concrete injury was their ceasing to use the river, that applies equally to the plaintiffs here, who ceased to communicate with overseas contacts.)
Personally, I don't see here a failure of constitutional standing, but I do think the prudential standing issue is at best a close one and I can see why the panel divided. It sure would be nice if Congress dealt with this just by creating statutory standing for somebody.
Because you don't know which individuals-alleged-to-be-terrorists are being monitored by the gov't, you have an amount of speculation to overcome that wasn't present in Laidlaw. They knew the discharges were into a particular river that they lived next to and used.
I'm not saying I'm satisfied with the apparent unreviewability of the wiretapping program; and indeed, perhaps the standing doctrine needs to be expanded if we can't conceive of who the proper plaintiff is to challenge the legality of this program. But I don't think Laidlaw completely gets you there.
Setting aside the State Secrets doctrine, in civil litigation it is often considered error (albeit harmless in many instances) for a court to grant summary judgment against a party for failure to introduce evidence on a topic which the court has previously issued a protective order barring discovery on. In other words, a judge can't say, "I prohibit you from taking discovery on topic X and I hereby dismiss your claim for failing to introduce sufficient evidence on topic X." Allowing a court to do that would be to give judges the power to bootstrap an absence of disputed material facts.
I think this is right, but note that the speculation here is really minute. The plaintiffs are directly involved in most of the Guantanamo litigation, and their contacts are also so involved. Given the government's strongly professed interest in monitoring all things Guantanamo, it would be bizarre to suppose that the ACLU et al and the CIA, NSA, FBI et al could come up with lists of potential witnesses and experts that was mutually exclusive.
It seems to me the question is really what the probability is that the lists really are mutually exclusive. The government's position (and Orin's, I think, from his comments above) is that the plaintiff bears the burden of proving that the probability is 0. Anything more than that, on this reasoning, and the government wins.
I think the best reading of the cases is uncertain; Laidlaw does seem to support the plaintiffs, but the defendants have a fair amount of law on their side as well. I agree that the law is wholly unsatisfying here; it seems like a good place for a burden-shifting rule.
It appears that after an in camera hearing, the court held that answering the specific interrogatory whether P had been subject to monitoring in the claimed instances would not harm national security.
In light of this result, in light of Hein, in light of the Allen v. Wright statement that you have no standing to sue simply because the government is violating the law (and as I read it, that amounts to, "You won on the merits, but too bad, you lacked standing")... how is standing doctrine at all defensible? Yes, this ruling may fit the established and binding precedent, but it seems that precedent has been detrimental and therefore erroneous from the first case whatever English baron decided 500 years ago. And how do you erase entire common-law doctrines? What happened to the Privileges &Immunities clause, or the way mandatory arrest statutes get read into non-mandatory arrest statutes on common-law principle, make it seem unlikely that you can actually use an amendment or statute to put an end to a line of legal reasoning. So where's the reset button for undesirable lineages of precedent and constitutional doctrines?
It's difficult to rely upon "fear" to claim an actual injury required for standing, because it transforms every possible harm into an actual harm, and thus broadly undercuts standing doctrine. In the case today, claiming that their fear of surveillance made them change their behavior, and that the changed behavior thus constitutes an injury, really begs the question of whether the fear itself was sufficient to constitute an injury in fact. Fear can, of course, be sufficient as an injury, but it has to be of something sufficiently immminent and palpable. So, for example, if the government said "we have been spying on alleged terrorist x and will continue to do so," the fear of having your conversation surveilled could constitute an injury. But the plaintiffs couldn't get there in this case.
The more "reasonable" it is to assume the overseas contacts were targets of the TSP, the more difficult it is to satisfy the causation and redressability requirements of Art III. In other words, the more "terrorist-like" the contacts are, the more likely they will be subject to FISA warrants and thus the TSP really does not affect them at all, at least insofar as their communications with US residents are the cornerstone of Art III injury.
Here's a question: Are state courts bound by standng doctrine? I think of standing as a question of the limited jurisdiction of federal courts to only hear cases and controversies. Just off the top of my head, I don't know why state courts would be bound by federal standing law, or why a state court couldn't decide such questions without being bound by standing doctrine. (There are probably cases on this, but i don't know them off the top of my head.)
If that isnt an available path, perhaps the easiest path is for Congress to think more about standing doctrine when drafting statutes and creating opportunities for judicial review.
But this can't be right in the case of witnesses or experts, can it?
The fear is of being wiretapped, which is undisputedly a concrete, particularized, palpable, actual, etc. injury. The question is whether the fear of wiretapping is reasonable. I still don't see why it's any more reasonable to fear environmental harm for which there is no evidence than it is to fear having overseas phone calls on terrorism-related subjects wiretapped by the NSA program.
In this case, the government admits that there is warrantless wiretapping, but because the plaintiffs can't show that they are imminently likely to be personally effected by that wiretapping, their fear of that wiretapping is insufficient to establish injury in fact.
By (imperfect) analogy, it would be as if I asserted injury in fact because I feared that if I went to visit the river into which the chemicals were dumped, I would be injured when I chose not to go swimming as a result of those chemicals being present.
The plaintiffs here were GTMO lawyers, or at least working closely with them. There were 2 suits filed - one by the ACLU and one by the Center for Constitutional Rights - but many organizations have been collaborating on GTMO representation.
It would be intresting to see whether she routinely misapplies the 4th to cases that come before her court.
I noticed that in the opinion too. Predictably (as every federal practitioner, let alone judge knows there are exceptions to the rule), the quote was ripped out of context. The paragraph in which Judge Taylor made that statement reads, uncontroversially, that Moreover, it follows a paragraph in whch she acknowledges thatIf I were a cynic, I would say that the Batcheleder opinion intentionally took Judge Taylor out of context in order to make her look stupid and cast doubt on the credibility of her own opinion and reasoning. But I'm not a cynic, and such things never happen when appellate courts are overruling district judges.
Can you describe a situation where you think the court would allow plaintiffs to have standing to challenge this program?
But there was no objective evidence of harm -- aesthetic, recreational, or otherwise.
Sure there was. Plaintiffs provided statements to the effect that they changed their behavior based on the chemical discharge. That was the injury that gave the plaintiffs standing, not any harm to the river (rivers, like trees, can't have standing to sue). In the present case, the plaintiffs based their changed behavior based on the fear that wiretapping of their conversations had or would occur. Because they didn't know the details of the program, they couldn't allege that it had actually occurred to their conversations.
Thanks for the context, read in that light Judge Taylor's opinion is much more reasonable. It is too bad she didn't go on and list at least one of those "few specifically established and well-delineated exceptions" such as:
But see Lorax v. Env't'l Prot. Agency, 238 F.2d 972 (D.C. Cir. 1971) (standing for one who "speaks for the trees").
The other thing to keep in mind is that the apparent fear is of being surveiled w/o a warrant, but the court couldn't see the difference between that and the fear of being surveilled, period, whether or not pursuant to a warrant. Surveilled is surveilled, as far as chilling, etc. goes. This is esp. true since there was no way of knowing how likely either situation was, given the State Secret privilege.
It appears that the only Court of Appeals judge to address the merits of the program would have affirmed the
District Court ruling. Accordingly, the only judges to have addressed the merits have ruled against the Bush Administration, which moved Hell and Earth to avoid offering any substantive justification for its gross invasion of American citizens' privacy.
Abuse of electronic surveillance was part of the conduct identified in the Articles of Impeachment of President Nixon that were approved by the House Judiciary Committee. Here's hoping the appropriate current Congressional committes will investigate this matter.
Constitutional Crisis,
Again, the odds that ACLU et al's fears are unfounded seem small - perhaps very small, trivial, even. But more importantly, the facts of this case seem quite distinct from the older standing cases. In the cases you're debating, the plaintiffs were unable to prove injury because it was factually impossible for them to do so - no amount of investigation or deposing of witnesses would give a definite answer. In this case, by contrast, one of the parties knows with 100% certainty whether the plaintiff would have standing as a matter of law, but for tactical reasons is simply refusing to divulge that information. I don't know where that takes the analysis, but the cases certainly don't seem controlling.
But also note that this isn't a typical 4th Amdt. case where the state is trying to prosecute someone based on illegally obtained evidence. Rather, the only even halfway plausible injury is the chilling that was ultimately rejected by the court here. It is somewhat like the question of whether a tree makes a noise if it falls down in the forest, and there is no one there to hear it. No one is being prosecuted using illegally obtained evidence here, so where is the harm?
When I communicate overseas I do expect to be subjected to warrantless surveillance. I expect foreign governments to do so. If I am communicating with persons of probable interest to the American government, I also expect to be subjected to warrantless surveillance.
Spies aren't cops. The NSA is wildly different than the FBI.
Yours,
Wince
If any type of phone tap is being used (and no one seems to deny this, though I don't know), I'm quite sure it's true. Wiretap technology requires that the phone company (and whomever is doing the tapping) split light signals off the relevant fibers; and in order to do that, they have to know which fibers to split. Of course, they could wiretap en masse by splitting most or all of our signals, but then the only practical way to do surveillance would be through the use of computerized filtering (something they are probably doing anyway). In any event, it's quite certain as a technological matter that a conversation recorded by tap is traceable back to the source of the call.
WHOI Jacket,
Again, the odds of your hypothetical being correct are trivial; the odds of the plaintiff's hypothetical being correct seem significant (or at least no one to my knowledge has denied this).
Of course, the underlying reality is that George Bush is the secret emotional driver of this entire debate. The government had secrets-- and plenty of secret surveillance-- under Bill Clinton, but somehow it never caused this same ruckus. Heck, President Clinton and his staff got their hands on hundreds of "secret" FBI profiles, but I imagine none of you (and certainly not the ACLU) cared a whole bunch about that, did you? Interesting.
For the record, there is not a single shred of actual evidence that any of the "domestic spying" that has occurred under President Bush has been used for anything but its intended and stated purpose-- to identify and catch international Islamic terrorists. Don't you think that there has to be at least some standard of proof-- such as one scrap of evidence-- before a suit of this type goes forward? Or do you just believe that the government really shouldn't be allowed to have secrets? Or... is it just that this Administration should not be allowed to have secrets?
Oh, and I'll bet you dollars to donuts that the Washington Post doesn't harp on the party affiliation of Federal judges when it is a decision they agree with! Just one of a million ways the press fights to damage the credibility of the present Administration-- even if it means slagging the rest of the government with mud to do it.
Again, the question raised by this case is not whether "mere suspicion" of harm is adequate to provide standing. The plaintiffs alleged facts that plausibly suggest that very high odds that if anyone was wiretapped, they were. And the defendants know the answer to the question, with certainty or near certainty, but have chosen not to answer for tactical reasons.
And the question whether the wiretapping was used for its "intended and stated purpose" is beside the point; wiretapping might violate the 4th Amendment despite the fact that it was used for the purpose of identifying terrorists.
Not exactly true. And that's what makes people justifiably concerned about a creeping surveillance state.
There are two reasons why the feds want to keep something secret: (1) national security, and (2) because they've screwed up, are screwing up, or plan to screw up in future.
I don't think a "state secrets privilege" is viable without any checks on it. Some sort of FISA-court entity with impeccable security clearances to vet the material, for instance.
Here, the feds refuse to turn over documents to the Congress; refuse to allow any meaningful Congressional oversight; and have successfully kept their activities out of the courts. I really don't understand any "conservative" who thinks this is how the system is supposed to work. Used to be, conservatives knew better.
ACLU plaintiffs also changed their behavior. The question is whether it was reasonable to do so. We are going around in circles.
I am going to sue, and require all advanced R+D projects with federal funding be given in disclosure.
ACLU plaintiffs changed their behavior based on their fear that they had been or would be surveilled, without being able to establish that the surveillance had occurred or would imminently occur to their specific conversations. The court rejected that as injury because fear, itself, is not an actual injury unless the plaintiff can show that the fear is of an imminent threat. As much as you want to infer the predicate (correctly or not) -- that the surveillance of their specific conversations occurred or would occur -- it can't be proven.
By contrast, in Laidlaw, the chemicals had already actually been dumped into the plaintiffs' river, and the evidence was that, as a result of that dumping of chemicals in that specific river, the plaintiffs' changed their behavior. Set aside the "environmental harm" red herring (sorry for the pun) from Justice Scalia. Harm to the environment -- whatever that means -- was not critical to that standing analysis.
Today's would be a different result, no doubt, if the ACLU plaintiffs could say either that they had been surveilled or that they knew they would imminently be surveilled. They can't say that because they don't know enough details about the program.
@Henri Le Compte: Of course we need a standing doctrine. The thing that bothers me here is that the government is using the state secrets doctrine to prevent plaintiffs from getting the quantum of evidence they need to prove they have standing.
I believe that the plaintiffs alleged that they were tapped, but could not get any evidence of that fact to survive SJ.
I agree - but that's exactly the rub. The ACLU (or the Center for Constitutional Rights, at least) can establish the following facts:
1. The gov't is engaged in wiretapping of people thought to be involved in terrorist activities.
2. The ACLU is working closely with people highly likely to be on any list of targets pulled together by the gov't.
3. The government knows, with 100% certainty, whether the ACLU would have standing if all facts were made public, but legitimately refuses to divulge that information.
And they are on solid ground in saying:
4. They are more likely than any other person to have standing.
I don't think Laidlaw - or any other case - is controlling, because of (3). It seems to me that the 6th Cir was charting new territory here. What I don't understand is whether the court couldn't simply order an ex parte demonstration that the ACLU does not have standing. That would seem to get us closer to the optimal result than today's ruling does.
The reason I'm not following the Laidlaw conversation too closely here is that I'm pretty convinced the importance of this case is in the state secrets doctrine that prevented getting the facts on standing into the record. The modern rules of civil procedure don't really contemplate this kind of asymmetry in discovery.
That's my understanding as well.
I respectfully disagree. As many upthread have noted, if anybody was targeted by the TSP, it was these guys (or at least the guys some of the plaintiff lawyers represent) If not, then the TSP is rather worthless. But i digress, the larger point, i think, which can be inferred is that the Gov, if it did conduct the warrantless wiretapping and it did find something terrorist related, would NOT HAVE brought charges. There would be no prosecution. Havent we noticed a pattern here? They would kidnap the guy wherever on Earth he may be found, throw him in some sh__t hole prison somewhere outside U.S. jurisdiction and indefinately hold them. No trial, no lawyers, no process, nothing.
So to answer your question, yes the "tree" does make a sound. Its the sound of the principles behind the Constitution of the United States being ground into dust.
On the bright side, these guys must not have been involved in terrorism themselves because they are actually hiring/finding attorneys and suing the gov. instead of having their testicles connected to a car battery in between "non-life threatening enhanced interrogation techniques" somewhere in nowhere land.
"The modern rules of civil procedure don't really contemplate this kind of asymmetry in discovery."
Good point. Because this isn't civil issue, it is a national security issue. So many commenters here are trying to strain an entire body of Military Law, National Security law, International law and treaties though the framework of US criminal procedure, which was never meant to handle international conflicts. This war is being overlawyered and under fought.
The focus of the Administration is and should be on killing terrorists not debating whether they have civil rights.
Either of two ways, as I see it:
1. Compel an ex parte showing that the plaintiffs do not have standing. A finding that the plaintiffs do have standing would not violate the Doctrine, as I understand it, because it would not provide sufficiently specific information to make public any confidential information.
2. Allow standing on the grounds that it's very likely these plaintiffs suffered injury, that these plaintiffs are more likely to have standing than any other plaintiffs, and that the government knows the answer with certainty.
I'm not sure how persuasive I find either of these, but they seem at least plausible. To be clear, I think it would require the Court to break new ground. I'm thinking in very broad terms, but I tend to think that anything but a narrow reading of the state secrets doctrine would lead to serious constitutional problems (no judicial review, etc.)
There would be no prosecution. Havent we noticed a pattern here? They would kidnap the guy wherever on Earth he may be found, throw him in some sh__t hole prison somewhere outside U.S. jurisdiction and indefinately hold them. No trial, no lawyers, no process, nothing.
In other words, what Prof. Kerr thinks they had the power to do to al-Marri, and what we've in fact done to 100s of people.
Not much room for demonstrating your standing then, is there?
And then -- if it turns out that you're that OTHER al-Marri, and that the terrorist guy who calls you &identifies himself as "Uncle" really IS your uncle -- well, under the State Secrets Doctrine, isn't it damaging to our security to admit how badly we mess up? Hurts our image, y'know?
But in what sense was plaintiffs' changed behavior the "result" of the dumping of chemicals? Only in the sense that plaintiffs chose to change their behavior in response to the knowledge that chemicals had been dumped in the river. Plaintiffs did not offer extrinsic evidence of any physical attributes of the river that caused them to change their behavior, nor did they seek to demonstrate that any such changes were caused by the particular violations at issue (one plaintiff did say the river "looked and smelled polluted" but, as Scalia pointed out, the findings of the district court precluded the possibility that any such discernible pollution was caused by the violations at issue).
The majority, in concluding that there was standing, did not rely on the objective existence of harm to plaintiffs. Distinguishing Lyons, the Court said:
Similarly, it is undisputed that the NSA program is ongoing. Thus, the only remaining issue is the reasonableness of the fear that led the ACLU plaintiffs to respond to that concededly ongoing program by refraining from communicating with their overseas contacts. I see nothing improbable about the proposition that the NSA program would cause individuals who communicated with overseas individuals regarding terrorism-related subjects to curtail their communications and thus suffer concrete harm to their ability to do work that required such communications. The proposition is entirely reasonable, and that is enough for injury in fact.
Whether such disclosure should be required on motion is a different and interesting question. One wonders why the ACLU didn't, apparently, seek such information.
I agree; that's exactly my concern. There seems like a serious constitutional problem with situations like this one, where the gov't knows the answer with 100% certainty but legitimately refuses to divulge. In the absence of the State Secrets doctrine, this seems patently unconstitutional. I think the situation is crying for a better solution than the one the 6th gave it; but on the law as it currently stands, I don't think the plaintiffs have anything. The law's just wrong.
I haven't openly criticized the sixth. I'm not sure how I would have come out. but I think the majority greatly overstates the strength of its case. and I think they unnecessarily shied away from creating new law here, particularly since we're debating a field of purely judge-made doctrine.
I'd be happy to impose some additional obligation on the gov't to make a representation on standing, where requested to, and where it uniquely has access to the information. I'm no SSD expert, but I'd be surprised if the doctrine didn't allow or support such a procedure.
The crux of the matter here is that the ACLU didn't request such a proffer, I gather. In which case, it's probably the better (more restrained) course for the court to let it go.
Good luck making that case to scotus.
Is this really right? I'm no expert on the SSD, but that seems like a very strange rule. Once the feds admitted they had this program, I would have thought just about everyone suspected the ACLU was a target. Is confirmation at that level of generality really harmful to national security or the executive's ability to carry out foreign policy?
When you question whether disclosure of the information would actually be harmful, you question the underlying issue, whether it is actually a state secret. The government cannot just declare any information that it wants to be a state secret. When judges review the documents in camera, they are checking that the information that the government claims is a state secret actually deserves to be a state secret. Of course that issue didn't come up because the ACLU chose not to challenge the invocation of state secrets, choosing instead to try to prevail without the privileged information.
That is a dispicable slander and innuendo against the ACLU, and completely unsupported by any facts. I'm no fan, but I don't think "just about everyone suspected" the ACLU of being terrorist collaborators or agents or being in communication with such.
That case is a little muddled, even as merely persuasive precedent, because the government accidentally sent some top secret documents to the plaintiffs, and the judge put some weight on that fact when deciding to conduct the in camera review.
Well to put it in context if Bush or Gonzales held a press conference and said: "we are intercepting all international phone calls and emails from or to the ACLU because we believe they are terrorist collaborators and agents" what would a sensible reaction be? Probably that it was "a dispicable slander and innuendo against the ACLU, and completely unsupported by any facts."
You would at least want to see more support for such a charge than "I would have thought just about everyone suspected the ACLU".
I have wondered about that myself, and Sen. Schumer has introduced a bill to help create standing for plaintiffs in a case such as this. But Congress could only legislate to guarantee that there is no prudential barrier to standing, right? If the problem with this case truly is a lack of injury in fact, that would go to the question of Article III standing, which Congress cannot affect.
As for this decision, I thought the dissent did have a reasonable argument that at least the lawyer plaintiffs had suffered injury in fact, and that the burden of prudential standing was met under the "zone of interest" doctrine. The ACLU did not press that last point very strongly. (I am no expert on standing, but the law does seem quite muddled in this area. To my mind, the zone-of-interests test seems to make Article III standing and prudential standing blur together.)
I also have wondered why these plaintiffs did not make more of the difference between the broad definitions of who might have been targeted by the TSP, as described be AG Gonzales, etc., and the more rigorous definitions under FISA of who might be an "agent of a foreign power." In other words, plaintiffs who were confident that they and their communicants were not such agents, and thus ineligible for secret FISA warrants, might reasonably fear that they were within the TSP's loose parameters. Perhaps these plaintiffs did not think their facts fell within the distinction. Or perhaps their theory is not what I had in mind.
Yes, there is a possibility that someone could slip through the difference between agents of a foreign power and the list of potential TSP surveillees. But I would suggest that al Qaeda can safely be classified as a foreign power, since it is:Most of the categories of those being presumably being surveilled qualify as “Agent of a foreign power”, which include:
Like I said I am not a big fan of the ACLU, but I have enough respect for them that I don't believe they would knowingly work with terrorists. But they are naive enough to be "useful idiots".
So if they are communicating with terrorist I hope the government is monitoring their communications.
I don't think there is any question that Al Qaeda is a "foreign power" under FISA. But for a U.S. person to be an "agent of a foreign power," under the definitions you quote, FISA has a fairly rigorous requirement that the person "knowingly" does one or more enumerated bad things. The definition for non-U.S. persons is less demanding, but still requires some concrete nexus to terrorist activity.
By contrast, the words used to describe the TSP by the administration used much broader parameters -- including that the person merely be "affiliated" with Al Qaeda or a "member" of an "affiliated" group. That is much less rigorous than the FISA definition, since these terms are left undefined, have broad commonsense meaning, and are applied without any judicial review.
A lawyer might be confident that neither he nor his client is a criminal or an agent of a foreign power under FISA, yet still be compelled by a prudent concern that a government bureaucrat unconstrained by a judge would suspect them to be more loosely "affiliated."
I am not sure the ACLU was being paranoid, given what I have heard about the breadth of the program being challenged (see the Klein v. AT&T case in San Francisco).
Rather, this is one of those cases in which more conservative judges want to duck deciding the ultimate constitutional question because they may believe that the proper resolution of the widespread injuries from this program have a political solution, not a judicial one, so they use standing to duck the issue. Standing is a very elastic concept and is used by judges of all partisan stripes to take up or refuse to take up controversial issues.
The Court of Appeals majority is essentially saying this one may be a wrong, but there is no judicial remedy. I think the standing question likely was a very close question, based on existing precedent.
It would be as though the chemicals in Laidlaw were dumped in a body of water far upstream from the river running past the plaintiffs' house, and indeed, one could not tell if they had made it into that river, or went down another tributary.
What if it were reframed as a First Amendment challenge, arguing that the program poses a chilling effect on the exercise of their rights to freedom of speech and association? (Yes, I know the "chilling effects" language seems to be the injury alleged as is, but in the Fourth Amendment context.) Would the result be different, given that there's typically a looser standing standard for First Amendment claims (think about Ashcroft v. Free Speech Coalition, where none of the plaintiffs were actually subject to criminal prosecution, but instead asserted the law was chilling their artistic endeavors)?
That's one of the reasons why I don't think that reliance on environmental law cases is particularly useful. The courts use these precedents because environmental law is an area where plaintiffs are prone to make weak standing arguments. But in environmental law, you can safely assume that there is no legitimate reason to dump chemicals into a river, or to maintain the secrecy of dumping chemicals into a river. In contrast, in intelligence gathering against terrorists, the government has a legitimate reason to maintain communications interception programs, and a pressing need to maintain the secrecy of such programs.
To me, that factual distinction between bodies of law changes the analysis completely. You cannot assume no legitimate purpose and effect as you can with dumping chemicals in a river, you have to actually prove it. The ACLU therefore needs to show an actual injury to innocent people and actual misuse of the government's national security powers to have standing. Paranoia about what could happen isn't enough.
This tree apparently does have standing.
Look... the government has spy satellites-- powerful enough to read a license plate from outer space! This means that they might have been watching that night when the wife and I had sex in our backyard pool. (Ok... nights.) This has had a substantial effect on our sex life! Does it follow, then, that I have standing to sue the government? To obtain all information about our spy satellites sufficient to prove that they did, or did not, invade our most private of privvy moments? I mean, they could have, right? And there is no other way of knowing, right? And that is creepy, perverted, police state stuff if they were looking, no?
It seems to me that many of you would have to answer "Not just yes, but Hell yes!" to those questions-- or at least that follows from your arguments.
Having someone listen into your private conversations isn't a harm? I think most Americans would disagree strongly with you - that's why there are laws against eavesdropping and wiretapping, not to mention the 4th Amendment. Reasonable people recognize that there are situations where the government does need to surreptitiously listen to private conversations, which is why there are provisions in those laws to obtain a court order for wiretapping, etc. However, what the Bush administration wants is to be able to tap any signal crossing the border without ever explaining why they wanted to tap it in court, not even the amazingly compliant FISA court.
They want us to trust them not to abuse that power, even though it is exercised in secret and never reviewed by anyone outside their chain of command. It's unrealistic to expect such a power to never be abused. It also ignores the lessons our founding fathers learned to never trust the government, and overturns the safeguards they placed against abusive government.
Terrorists don't have to destroy us, if we are willing to let fear of them drive us to destroy our freedom ourselves.