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Dead Constitution
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Title: Judge Taylor's Tapped-Out Argument
Source: Reason Online
URL Source: http://www.reason.com/links/links082106.shtml
Published: Aug 21, 2006
Author: Jeff A. Taylor
Post Date: 2006-08-22 06:55:13 by historian1944
Keywords: None
Views: 246
Comments: 16

Reason Foundation free minds and free markets

August 21, 2006

Judge Taylor's Tapped-Out Argument Federal domestic spying program nicked, not nixed Jeff A. Taylor

When President George Bush confidently told reporters Friday that a district court judge's ruling against his administration's secret wiretap program would be overturned, he wasn't just spinning. There is a good chance he is right.

As much as it might pain those looking for something, anything, to use against the Bush administration's ever-increasing definition of executive power, U.S. District Judge Anna Diggs Taylor's opinion probably ain't it. There is a reason the Justice Department rushed to appeal this decision.

"There are no hereditary Kings in America and no powers not created by the Constitution," Taylor wrote in her decision, a much-needed attempt at some executive-bashing rhetoric. It sounds to these ears like a conscious callback to the debates on the Constitution itself, when the fear of an untamed despot was palpable. But as part of a legal opinion? Not so much.

It isn't just the decision's language that falls short. As Eugene Volokh and his merry band of bloggers have teased out, the underpinnings of the relatively terse 43-page decision are weak or confused. It turns out that the National Security Agency's program violates the First Amendment only because it violates the Fourth Amendment. In essence, Judge Taylor agrees with the Justice Department that citizens have no constitutional right to private conversations, that the government can always listen in provided it has a good enough reason.

So then the primary question is down to the "reasonableness" of the NSA program. And what does Judge Taylor say? Why, she says the program "obviously" violates the Fourth Amendment and moves on. An appeals court is going to be all over that move like Ft. Meade on a cell call to Islamabad.

And on the key question of executive power the opinion is largely silent. As Yale Law Professor Jack Balkin immediately noted, the opinion does not even challenge the administration's fairly amazing suggestion that the Foreign Intelligence Surveillance Act is unconstitutional precisely because it puts restraints on Oval Office power. Taylor says this question is "irrelevant" because the NSA's program violates the constitution.

Balkin goes on to say he is "mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that rehearses the best arguments pro and con" on this point.

Officials at both Justice and the NSA were queasy about side-stepping FISA warrants the way the White House insisted the program had to do. Judge Taylor drops this vital indicator of a new expansion of executive power, and there is little reason to expect an appeals court to pick it up for her. With that, the last, best hope to roll back Bush's expansive "unitary executive" may be lost.

Moreover, the entire scope of the decision and the case is unsatisfactory to some. Surveillance expert James Atkinson claims that the entire federal government needs to be prohibited from such domestic sweeps, not just the NSA.

"All that AT&T needs to do is start routing the intercepted data to an agency different from the NSA to be compliant with the judge's order. AT&T could just as easily route the illegally intercepted data streams to a DOD facility, or DCI facility," Atkinson wrote in response to Judge Taylor's ruling.

To fully reel in the snooping programs you would need to include all the local phone companies, all long distance providers, the unde rsea cable companies, and all contractors who work at military bases handling the intercepts, Atkinson avers. And to do that you need a completely new and different challenge to the President Bush's surveillance programs. None is forthcoming.

No wonder then that our extra-legal Unitary Executive was so buoyant and confident at Camp David last week.

Jeff A. Taylor writes the weekly Reason Express.

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#1. To: All (#0)

It turns out that the National Security Agency's program violates the First Amendment only because it violates the Fourth Amendment. In essence, Judge Taylor agrees with the Justice Department that citizens have no constitutional right to private conversations, that the government can always listen in provided it has a good enough reason.

And on the key question of executive power the opinion is largely silent. As Yale Law Professor Jack Balkin immediately noted, the opinion does not even challenge the administration's fairly amazing suggestion that the Foreign Intelligence Surveillance Act is unconstitutional precisely because it puts restraints on Oval Office power. Taylor says this question is "irrelevant" because the NSA's program violates the constitution.

I've quoted the two parts that I think most interesting. One would hope that the judge would have opined that there actually does exist a right to privacy, but I guess not.

I guess I haven't been paying too much attention (I've only recently looked into the "unitary executive" idea) but I hadn't realized that the administration actually has attempted to codify rules that make it wrong to try to limit Presidential power (I guess during time of war). I can't wait to see the contortions that Bush supporters (Bush Uber Alles!) go through when there's a Democrat in the White House that is using the same argument. I guess when that happens they'll say that we're not really at war, so it doesn't apply.

historian1944  posted on  2006-08-22   6:59:38 ET  Reply   Trace   Private Reply  

The only peeps with a right to privacy appears to be abortionists and their clients, homosexuals violating each others arse-holes in Texas, and of course, the Bush Administration.

The problem that most of you either can't see, or refuse to see because you fear life without the ever present Uncle Sambo holding your little pee pee, is that when you operate your entire life around a SSN ... you have voted yourself into the Untied Socialist Society of Amerika, and have opted out of the Free Republic. Voluntarily Indentured Servant Class. But don't fret, you're not alone ... most of the country has fallen for this empty promise of dog food and prescription drugs in their old age ... there's a sucker born every minute.

You have applied and been granted Corporate Status within the USSA, get used to it. You have no rights and deserve none. You "may" have a few "privileges", at the generosity of government, and if you don't "comply" with your Social duties, those will be eliminated.

Slaves have never had rights, especially to such abstract concepts as privacy.

Get a grip on your socialist self !

"interdum vulgus rectum videt"

Sometimes the rabble see what is right.

noone222  posted on  2006-08-22   7:27:47 ET  Reply   Trace   Private Reply  

"All that AT&T needs to do is start routing the intercepted data to an agency different from the NSA to be compliant with the judge's order. AT&T could just as easily route the illegally intercepted data streams to a DOD facility, or DCI facility," Atkinson wrote in response to Judge Taylor's ruling.

It's a clear implication of Judge Taylor's ruling that for any executive agency to violate FISA is a federal felony.

The ACLU's suit was against NSA. It is part of our common law system that injunctions be addressed to the named defendants. But that doesn't mean that other agencies can evade such a court order. When the Supreme Court resurrected the district court's injunction against the Secretary of Commerce in Youngstown Steel, that didn't mean Truman could authorize some other agency to seize the steel mills. When Little Rock claimed it was not yet bound to desegregate its schools, because all court orders to desegregate up to then had been addressed to other defendants, the Supreme Court rejected its argument with contempt in Aaron v. Cooper.

aristeides  posted on  2006-08-22   8:08:10 ET  Reply   Trace   Private Reply  

When Judge Taylor found the NSA program to violate the Fourth Amendment, that grants all of us a right of privacy.

aristeides  posted on  2006-08-22   8:08:58 ET  Reply   Trace   Private Reply  

But don't fret, you're not alone ... most of the country has fallen for this empty promise of dog food and prescription drugs in their old age ... there's a sucker born every minute.

Man - this is almost an exact quote from "Bob, from Texas" who called in to Frank Whalen's http://www.rbnlive.com radio show this morning.

Well said.

Lod  posted on  2006-08-22   9:45:31 ET  Reply   Trace   Private Reply  

Judge Taylor doesn't grant anyone's rights ...

"interdum vulgus rectum videt"

Sometimes the rabble see what is right.

noone222  posted on  2006-08-22   9:55:37 ET  Reply   Trace   Private Reply  

shhhh ...

"interdum vulgus rectum videt"

Sometimes the rabble see what is right.

noone222  posted on  2006-08-22   9:56:11 ET  Reply   Trace   Private Reply  

It isn't just the decision's language that falls short. As Eugene Volokh and his merry band of bloggers have teased out, the underpinnings of the relatively terse 43-page decision are weak or confused.

That group is becoming increasingly silent as experienced civil litigators send the law professors back to school for "Remedial Trial Procedure 101".

So then the primary question is down to the "reasonableness" of the NSA program. And what does Judge Taylor say? Why, she says the program "obviously" violates the Fourth Amendment and moves on. An appeals court is going to be all over that move like Ft. Meade on a cell call to Islamabad.

Balkin goes on to say he is "mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that rehearses the best arguments pro and con" on this point.

The judge ruled on the evidence presented by the ACLU and the refusal by DoJ to dispute any of it (save for the datamining claim):

http://volokh.com/ posts/1156190208.shtml#134982

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.)


As best as I can tell, the sequence of events is as follows:

On March 9, 2006, plaintiffs moved for partial summary judgment. At DOJ's request, the court extended DOJ's time to oppose to May 19.

On May 16, DOJ asked for another week (i.e., to May 26); the court granted that.

On May 26, DOJ moved to dismiss or for summary judgment and moved to stay as to plaintiff's motion for partial summary judgment.

On May 31, the court denied the motion to stay, indicating to the DOJ that it wanted substantive briefing on the merits of plaintiff's motion.

On June 2, DOJ moved for a "clarification" of the courts order, which was basically a motion for reconsideration, but pointed out that certain portions of the briefing it had already filed addressed plaintiffs' motion, and also suggested that there were Rule 56(f) issues (i.e., the government could show facts in dispute if it were granted discovery).

On June 5, plaintiffs filed their reply memo in support of their motion for partial summary judgment.

On June 6, plaintiffs responded to the motion for clarification, arguing: "no further facts are needed to resolve plaintiffsâD4;P2; motion for partial summary judgment. Because plaintiffs are entitled to partial summary judgment without the introduction of additional facts, defendantsâD4;P2; state secrets claim need not be reached at all with respect to this portion of the case. The state secrets doctrine is an evidentiary privilege, Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983), and it simply has no relevance here, where plaintiffsâD4;P2; pending motion is based entirely upon facts that defendants have already conceded and that are widely known to the public."

On June 7, DOJ replied on the motion for clarification.

On June 20, plaintiffs opposed DOJ's motion to dismiss or for summary judgment.

On June 30, DOJ filed its reply on its motion to dismiss or for summary judgment.

On July 10, the court heard oral argument.

On August 17, the court ruled.

Question: If you think you have a winner on a threshold issue, but the court tells you to brief the logically subsequent issues anyway, should you (a) do that or (b) tell the court to get lost? Looks like DOJ chose (b).

It appears that the Department of Justice elected not to brief the merits of the Plaintiffs' claims, notwithstanding the District Court's twice denying the government's motions to continue the Plaintiffs' summary judgment motion. If discovery was needed in order to respond to the summary judgment motion, the DOJ could have apprized the court of that need for discovery under Fed.R.Civ.P. 56(f), which it apparently did not do.

Any civil litigator knows that, where a summary judgment motion is made and properly supported, responsibility for showing a material, factual dispute sufficient to preclude summary judgment shifts to the non-moving party, and the non-movant ignores this at his peril. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Indeed, a district court has the power to enter summary judgments sua sponte, so long as the losing party was on notice that it had to come forward with all of its evidence. Id ., at 326.

For example, if the DOJ for tactical reasons declined to adress the merits of the Plaintiffs' Fourth Amendment claims, then summary judgment would be appropriate on such claims, in light of the well-established presumption that a warrantless search or seizure is constitutionally unreasonable. It is elementary that the burden of justifying a warrantless search rests upon those who would proceed without a warrant. If the presumption of unreasonableness is not rebutted, then summary judgment in favor of the party aggrieved by the warrantless search is quite appropriate. (Whether these Plaintiffs have established that they are aggrieved persons will of course be subject to de novo review on appeal.)

While the portion of Judge Taylor's opinion addressing the merits is not artfully crafted, the government has its own gamesmanship to blame. To the extent that Judge Taylor's order advances further judicial review of a program as to which the administration has assiduously avoided any form of judicial review or accountability is a good thing. This order serves the purpose of the proverbial two by four used to get the old mule's attention.

Appellate review of an order granting summary judgment is de novo on the record developed before the trial court, with no presumption of correctness. In this case it will be quite interesting to see whether the DOJ abandons its "pay no attention to the man behind the curtain" posture.

http://glenngreenwald.blogspot.com/2006/08/grading-law- professors-apologies-due. html

http://glenngreenwald.blogspot.com/2006/08/two- critical-under-recognized-points. html

http://volokh.com/posts/ 1156190208.shtml

http://volokh.com/posts/ 1155926918.shtml

http://balkin.blogspot.com/2006/08/bloggerati-response-to-judge-taylors.html

The ivory tower ignorance of law professors and the inability of government lawyers to understand their own court system never fails to amaze.

(The Gospel of Jesus Christ is the only true good news)

Starwind  posted on  2006-08-22   12:16:22 ET  Reply   Trace   Private Reply  

How many arguments has the government waived by failing to make them at the trial court level?

aristeides  posted on  2006-08-22   14:05:12 ET  Reply   Trace   Private Reply  

How many arguments has the government waived by failing to make them at the trial court level?

Pretty much all of them. Appellate review will be on the court record as-is. Unlike golf, civil litigation has no "mulligans" or "do-overs". That is one of the reasons laywers include every imaginable argument in trial - it preserves their right to reargue or elaborate on appeal. But if an argument is not made, it can't be introduced on appeal.

The DoJ strategy seems to have been "bet the ranch" on "state secrets privilege" and lack of standing (ostensibly to avoid getting into any substantive scrutiny of warrantless wiretaps of US citizens and the relevant legal issues). Judge Taylor found neither DoJ argument compelling.

So that leaves on appeal the DoJ to reargue that Plaintiffs didn't make their case (1st & 4th amendment violation), or the DoJ did actually make theirs (no standing and "state secrets privilege"):

• Warrantless wiretaps of US citizens not approved under FISA do not violate the 1st or 4th amendment
• Warrantless wiretaps of US citizens not approved under FISA can still be made under Article II (executive privilege) as justified by "state secrets privilege"
• The plaintiffs did not actually have standing to bring the suit.

(The Gospel of Jesus Christ is the only true good news)

Starwind  posted on  2006-08-22   15:19:27 ET  Reply   Trace   Private Reply  

That is one of the reasons laywers include every imaginable argument in trial - it preserves their right to reargue or elaborate on appeal. But if an argument is not made, it can't be introduced on appeal.

The DoJ strategy seems to have been "bet the ranch" on "state secrets privilege" and lack of standing (ostensibly to avoid getting into any substantive scrutiny of warrantless wiretaps of US citizens and the relevant legal issues). Judge Taylor found neither DoJ argument compelling.

I can't imagine professional DOJ lawyers making such a mistake on their own. They must have been under orders from their political superiors.

Unless they were deliberately throwing the case.

aristeides  posted on  2006-08-22   15:26:18 ET  Reply   Trace   Private Reply  

Aside from some "activist" appellate or SCOTUS judges who want to make new law, I don't see how DoJ can prevail.

They could still prevail on standing or states privilege grounds, I would imagine. The government made those arguments, and I'm not sure Judge Taylor got them right. Not that I'm an expert on either one.

But what occurs to me is this. If the government prevails and Judge Taylor is reversed on such a technical ground, Judge Taylor's holdings that the NSA program is unconstitutional, illegal, and therefore, by implication, criminal will stand uncontroverted. They will be without legal effect, because of the reversal. But I'm not sure that would be much comfort to me, if I were, say, an NSA employee.

In fact, I wonder if the government has secretly suspended the program(s), after Judge Taylor's decision. They can't come out and say they have, because that would undermine their argument about how vital the programs are. But after Judge Taylor's decision any legal defense against criminal charges under FISA has become a lot harder, especially for acts committed after her decision.

aristeides  posted on  2006-08-22   15:31:26 ET  Reply   Trace   Private Reply  

I can't imagine professional DOJ lawyers making such a mistake on their own. They must have been under orders from their political superiors. Unless they were deliberately throwing the case.

They're really between a rock and a hard place.

Their profession and the courts require honesty. They can't lie and expect to get away with it. If discovered they'll be disbarred, and potentially face legal procedings themselves.

Yet I'm sure the whitehouse expects the DoJ lawyers to "finesse" these lawsuits, but the DoJ really has little or no ammunition, and the administration has placed itself in an undefensible position having circumvented FISA.

Then too the DoJ lawyers were likely intellectually outgunned by the ACLU, who litigates civil suits a lot. I'm sure the ACLU "read the DoJ defense" of depending on "state secrets", anticipated the DoJ wasn't going to dispute the ACLU's facts (and the DoJ couldn't really without lying as it was all in the public record), and then the ACLU went for the jugular - motion for summary judgement and the DoJ just lifted its chin and gurgled 'go ahead, I dare ya' :-/

(The Gospel of Jesus Christ is the only true good news)

Starwind  posted on  2006-08-22   15:38:54 ET  Reply   Trace   Private Reply  

I've quoted the two parts that I think most interesting. One would hope that the judge would have opined that there actually does exist a right to privacy, but I guess not.

No doubt this judge assumed that the s/c would find a right to privacy that actually does exist; I mean, if they can find the right to kill the unborn, then why can't they find the right to be secure in our persons and our castles, etc.

Yeah......I don't think they will, either. :(

In any event, I most certainly will not be holding my breath that any time soon we will have a judiciary that actually strives to follow the Constitution, just as surely as we have congresscowards and liars in chiefs who don't either. America is damned to go the route of other empires.

rowdee  posted on  2006-08-22   15:58:33 ET  Reply   Trace   Private Reply  

They could still prevail on standing or states privilege grounds, I would imagine. The government made those arguments, and I'm not sure Judge Taylor got them right.

Doubtful. The ACLUs evidence and Judge Taylor's reasoning on standing was pretty textbook and straightforward. I don't see that getting reversed.

If the DoJs "states secrets" evidence was all that compelling, and misread by Judge Taylor, then that leaves to DoJ open for having failed to submit the same to FISA and gotten a FISA approved warrant. If a district court or appellate judge is supposed to be convinced by the "secret evidence", then that is what FISA was setup to do, and the DoJ will not prevail. If the "secret evidence" is not convicing, then FISA would have not granted the warrant which is the administration/NSA motivation for illegally evading FISA, and the DoJ will not prevail.

(The Gospel of Jesus Christ is the only true good news)

Starwind  posted on  2006-08-22   15:59:36 ET  Reply   Trace   Private Reply  

It's going to be very interesting to watch this play out. But with me being the cynical sot that I am, I can see that even if it goes to SCOTUS and the slap down the DOJ, it wouldn't be out of charachter for junior to tell the entire judicial branch to go pound sand. And unless both houses of Congress change hands, I can't see him getting impeached for it, let alone convicted and removed from office.

"Perhaps I should let you all in on a little secret. No one likes you in the future."

orangedog  posted on  2006-08-22   16:12:29 ET  Reply   Trace   Private Reply  

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