What will the Sixth Circuit Do on Appeal in the NSA Surveillance Case?:
The criticism of Judge Taylor's opinion on the NSA surveillance program has been met by a flurry of criticism of the criticism, much of it making the point that the quality of Judge Taylor's opinion is irrelevant because DOJ should have lost anyway, even if for reasons that Judge Taylor didn't expain.

  Weirdly, however, I haven't actually seen an analysis of the why that is the case. To be clear, I have seen (and participated in) tons of discussion on the merits of DOJ's defense of the surveillance program as an abstract matter. But I haven't seen much on the merits of the Taylor case as an actual legal dispute, with all of the procedural and evidentiary steps such cases have. The two are quite different, of course: I find the DOJ's defense of the program to be weak, for example, but the substantive merits of those arguments are only a very small part of the actual case before Judge Taylor.

  Part of the problem is the current procedural posture of the case. As I understand it, DOJ's response to the motion for summary judgment filed in the case was to assert the state secrets privilege, which basically put the case on hold until the state secrets privilege issues were worked out. In other words, DOJ said, "we're not going to even respond to the merits of the issues in this suit because it shouldn't go forward under the state secrets privilege, and that has to be resolved first." After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government. (Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.)

  So imagine you're a Sixth Circuit judge, and imagine (to make the case interesting) that you agree with Judge Taylor that the state secrets privilege should not block the suit. What then? It seems to me that it's way too early to just resolve all of the legal issues in the case without briefing; presumably you would want to send it back to the district court for discovery and fact-finding, or for resolution of the many difficult procedural issues in the case.

  What are those procedural matters? Well, a few come to mind. For example, does FISA permit injunctive relief? If not, does the Administrative Procedure Act permit courts to make an end-run around this failure to provide for injunctive relief? Article III standing aside, can a court grant injunctive relief for Fourth Amendment violations without first finding that the plaintiffs' own Fourth Amendment rights were violated? What about FISA and the Wiretap Act, which all incorporate the same "aggrieved person" standard designed to mirror the Fourth Amendment standing inquiry rather than the Article III standing inquiry? If an injunctive remedy is permissible and merited, what is the proper scope of that remedy -- should the injunction stop the illegal parts of the program, or the program as a whole that happens to have some illegal parts? It seems to me that there were lots and lots of legal issues like this that had to be answered before Judge Taylor could reach the merits and (potentially) enjoin the program, even assuming that DOJ's defense on the merits is weak and the states secrets privilege doesn't apply.

  What does this suggest about what the Sixth Circuit will or should do on appeal? Well, to me in suggests that the Sixth Circuit should reverse, whether on the state secrets privilege (if the judges agree with DOJ on that) or simply on the procedural impropriety of bypassing discovery and briefing on the law and all of the procefural and substantive issues raised (if the judges don't). Even assuming that DOJ's arguments are weak, there are still a lot of procedural hurdles to jump through in this case.

  That's my sense, at least. I'm not an expert in the area of civil litigation, so please help me out if you think I'm wrong. Also, for the comment thread, please understand that I'm not trying to score points or try to make one side or the other look bad or good; I'm just trying to figure out a lawsuit, and I really don't care who the parties are or what the political consequences may be.