There's also lots of interesting debate going on around the legal blogosphere concerning Judge Taylor's recent ruling in the NSA lawsuit. Orin Kerr raises some interesting questions in a post at Volokh. He points out something that concerned me as well when I first read the ruling. I was not expecting a ruling in the case when it was issued, only a ruling on the state secrets privilege, meaning a ruling on whether the case would continue or would be dismissed. Instead, the judge ruled that the state secrets privilege did not apply in this case because no additional discovery was required other than what was already in the public record (and I think that was the right decision, for reasons I've given previously). But as Kerr points out, the government had not presented any defense of the constitutionality of the program up to that point:
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.)
I think Kerr is correct here, and that's why I did not expect to see a ruling handed down last week. I assumed that the court would rule on the justiciability questions, state secrets privilege and standing, first. Then, if the case was considered justiciable, the court would give both sides time to file briefs as to the statutory and constitutional questions. I was taken aback when Judge Taylor issued a full ruling not only on the procedural issues, but on all of the substantive issues as well. And I certainly do not agree with Greenwald that an assertion of privilege is an admission that the other side is right in its constitutional analysis.
Kerr also raises the question of whether the FISA statute allows injunctive relief. According to the text he posts, it does not. That might limit the applicability of raising the statutory questions in this case (as I've written previously, I believe the NSA program violates both statutory and constitutional law). Conversely, Lawrence Tribe has a guest post at Balkin's blog where he suggests that Judge Taylor should have ignored the constitutional questions and simply ruled that the program violates the FISA statute:
Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA.
The rest of Tribe's post struck me as rather odd. After saying that he didn't think she handled the case correctly, he then goes on for several paragraphs to take essentially the same position that Greenwald took the other day, that criticizing her reasoning only helps the administration and is pointless when we should all be doing anything we can to stop the program (my own position is that we should be doing both - fighting to end the program and constructing valid and persuasive legal arguments toward that end).
Meanwhile, Balkin himself has a post where he looks at some other possible reasons why the judge decided to act so quickly in the case and issue what he calls a "sloppy opinion".
In this post, I try to show that strategically, at least, Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal.
Judge Taylor knew that most of other lawsuits challenging the NSA program were being consolidated in California, and hers might be as well. She might have wanted to ensure that the 6th Circuit got to pass on the NSA case in addition to the 9th Circuit. The more circuit courts that passed on the case, the greater the chance that one of them would hold the way she thought the case should come out, and present a favorable record on appeal to the Supreme Court. But more important, she might have noted that the Supreme Court regularly reverses the 9th Circuit, and that the judges on the 6th Circuit might do a better job with the case, or, at the very least, their work would be viewed with less skepticism by the Justices.
Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal.
Judge Taylor's opinion did both of these things in her opinion. First, she raised as many claims on the merits as she could think of, even if her analysis skated over the surface and didn't provide the best arguments for both sides. This puts the Justice Department in an interesting position. The DOJ takes the view that courts can't possibly resolve the legal issues on the merits because state secrets are involved. But because of Judge Taylor's scattershot approach, it will have to make arguments on appeal showing why her arguments are wrong on each issue; that will undercut its claim that the legal issues can't be disposed of without revealing privileged information.
Second, Judge Taylor found as a matter of fact that the secret materials she viewed ex parte don't affect the resolution of the case, except for the data mining claim. If that is a pure question of fact, it is subject to the clearly erroneous standard. Of course, if it is a mixed question of law and fact-- which I think it is-- it is subject to more searching appellate review. But either way, Judge Taylor made factual findings that help the plaintiffs on appeal, even if her analysis of the merits is rejected. It may not be accidental, then, that Judge Taylor spent more time on the state secrets issue than she did on the merits. She may have reasoned that the 6th Circuit would do the merits over anyway, but as a trial court judge she could have the most effect on the procedural issues.
Because Judge Taylor undercut the DOJ's state secrets arguments in the ways I have suggested, on appeal the DOJ will probably emphasize standing even more than it already has. But here's where Judge Taylor's rather innovative First Amendment argument comes into play. To win on standing, plaintiffs need not win on the merits; they need only show that they raise colorable claims of rights violations that injure legally protected interests that courts can remedy. The first amendment argument-- that the secret program chills protected expression and association-- is not a very good argument in its current form, but it is a colorable argument. It will take some work to defeat it. And that fact helps secure the plaintiffs' standing. By making what is not a particularly good argument about the First Amendment, Judge Taylor enabled the 6th circuit to address what is really the best argument-- that the NSA program violates Congressional law, in particular FISA.
Judge Taylor's opinion isn't really very good as a discussion of the merits. But district court judges know that this isn't the only thing that matters. Time will tell whether Judge Taylor's work on state secrets and standing pays off and keeps her ultimate judgment-- that the NSA program is illegal-- from being overturned.
Interesting analysis, I think. Tribe, by the way, says that he thinks the ruling will be upheld by the 6th circuit even while some of the specific reasoning is rejected. Much will depend, of course, on who the panel is that hears the appeal. But I can see several different outcomes:
1. The appeals court disagrees in regard to the state secretss privilege and dismisses the case.
2. The appeals court agrees on the state secrets privilege but dismisses the case based on lack of standing.
3. The appeals court agrees on both justiciability questions but remands to the lower court to retry the case and allow both sides to brief the statutory and constitutional questions before ruling.
If none of those things happen, then all bets are off in terms of how the appeals court will rule based on the wide variety of statutory and constitutional questions to consider. At the very least, I expect them to allow both sides to fully brief all of the issues before reaching their decision.
- Log in to post comments
"1. The appeals court disagrees in regard to the state secretss privilege and dismisses the case."
How can the appeals court do this, given that the ruling didn't rely on anything beyond what is public knowledge? Surely the very fact (assuming it is a fact) that it was a summary judgement without briefing from the DoJ on the merits means there's nothing to privilege? Standing I can understand, but not state secrets.
Ginger Yellow wrote:
The appeals court may well decide that the judge was wrong on that issue and it may well involve a mixture of standing and state secrets. For example, they could say that it's impossible to decide the standing question without knowing that the plaintiffs actually had their calls monitored, and we can only know that if more is revealed than we currently know, and then invoke the state secrets privilege.
Greenwald has already addressed this misstatement by Kerr - and that's what it is - here. In a nutshell, far from rushing past discovery, the judge ordered the DoJ to respond on the merits, and they still failed to do so. Almost all of the criticism directed at Judge Taylor for failing to address this or that pet argument should instead be directed at DoJ for failing to make the argument in the first place. Most of the sloppiness is theirs, not hers.
I think Greenwald is missing something here. He writes:
But this does not address Kerr's point at all. Even if the court was required to accept the ACLU's factual claims, that does not mean accepting their constitutional or statutory claims. And as Greenwald says, this was only for the purpose of deciding the motion in front of the court, which was the motion to dismiss based upon the justiciability questions (state secrets and standing). Even if all of that was true, it does not justify ruling on the constitutional and statutory issues and issuing a ruling on the entire case when the only thing argued up to that point were the procedural issues. Did anyone really expect the judge to rule on the entire case last week? No one that I know of. The only issue before the court that anyone was aware of was the motion to dismiss. Now, there may have been valid strategic reasons, as Jack Balkin alludes to, for doing so. But this was still a highly unusual move to kick this case up to the appeals court far faster than anyone thought it would go. And I think the appeals court, even if it upholds the ruling on the justiciability questions (and again, I think they should uphold them, Judge Taylor was dead on in that regard), will either remand the case back to Taylor to allow the constitutional and statutory questions to be fully briefed and argued, or to review those parts of the ruling de novo and start from scratch.
I also don't see any support for Greenwald's claim that, "Twice, the court refused this request, ordering the DoJ to address the merits of the case (this Comment to Kerr's post, documents the case's procedural history)." The comment that he links to at Volokh contains no support for that claim. He seems to base this on the fact that the judge heard the ACLU's motion for summary judgement before hearing the government's motion to dismiss based on state secrets. But that is not an order for the government to brief the merits of the constitutional case. The government simply argued that the court should not grant summary judgement in the case because there were still outstanding justiciability questions that the court had yet to rule on or even hear (namely, state secrets and standing). That is a perfectly valid legal argument (I mean, their arguments are wrong, but it's certainly true that the court should not dismiss a case without first resolving such issues for which motions have already been filed).
I completely agree with Glenn that the invocation of state secrets privilege is nothing more than a political tool to shut down dissent. I think the court was right to dismiss the argument, as well as right to dismiss the standing objections. I also think the court is right on the statutory and constitutional issues (at least on some of them. The first amendment claims are weak, but the 4th amendment claims are not, nor are the statutory claims). I firmly believe the program is unconstitutional. But I think Glenn is playing fast and loose with the facts here in order to paper over some serious questions about the legal details. As I said before, I think he's doing much the same thing that the right does in such cases, saying in essence, "Who cares about these niggling little details, all that matters is (insert preferred ending: stopping terrorism or stopping the Bush administration's assault on our liberties)?" But like it or not, these legal details really do matter, particularly on appeal.
Greenwald, as well as some of the other commenters at Volokh, are essentially making an argument based upon the normal use and interpretation of the Federal Rules of Civil Procedure, specifically Rule 56, which governs Summary Judgements. Kerr disagrees, and his side argue that this is a special case because of the nature of the Defendant (Uncle Sam) and that even if the state secrets doctine does not apply to the overall case, it might nonetherless apply to the pleadings; therefore the government could not respond before the procedural issues were decided.
As Greenwald argues, this is not too unusual a dilemma, and ofter applies in cases where a privilege is claimed. But I'm not sure the privileges he has in mind are not purely personal, here we're talking the US Gov't, and potentially, all of our safety.
My CP Prof in law school had a really annoying habit. After addressing a question to a student and listening to the reply, he would rub his chin and say, "Hmmm, that may be right. I guess so." Since Prof Braun wrote the casebook, presumably he had a better idea of the proper answer than that.
Still, I now understand Braun's position. I read Kerr, and he makes sense. Then I read Glenn. Hmmm, that may be right.
Fun thought: There are perhaps two dozen people in all the world who get a woody thinking about Rule 56.
Among the many things on which I agree with Mr. Greenwald:
The DOJ was ordered by the court to address the issues, they refused to address the issues and they got the judgement that follows by law from that, but more importantly:
This is just another example of this administration refusing to accept any authority other than their own.
Even if I disagreed with the decision, that remains hugely troubling. Certainly, as an ongoing matter, more troubling then anything in this decision, which is at the very least appealable.