Eugene Volokh's observations resonate with my superficial impression:
[T]he judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.Also at Volokh Conspiracy, Dale Carpenter is critical of the judge's conclusion that the plaintiffs have standing to sue, and Orin Kerr blasts the Fourth Amendment analysis.
This morning, the Washington Post is really hard on Judge Diggs:
[T]he decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful....
The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.
It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality. Does the judge lack the competence to do it? Does the judge have a hot feeling of righteousness and outrage about the case and also think it's good to show it? Perhaps it's some subtle combination of those two things.
UPDATE: The 6th Circuit reverses -- discussed here.
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31 comments:
"a hot feeling of righteousness and outrage about the case and also think it's good to show it" - nothing necessarily wrong with the first two, but showing it ain't always a good idea.
Another possible explanation, from the tinfoil hat side: I understand Judge Taylor is a Carter appointee. Even with that, maybe Karl Rove persuaded her to write an opinion that was so lame that it would be guaranteed to be overruled later, perhaps dramatically enough to allow Bush to do whatever he wants with phone tapping whenever he wants. In a few years Judge Taylor retires to the Bahamas, and Mr Rove gets a cabinet seat for life as "Tap Master."
I find it intriguing that this administration and many of its supporters speak the language of strict construction where Article I and the rights-bearing provisions are concerned, yet demands a breathtakingly latitudinarian construction of Article II ("inherent powers of the President"; "implied powers of the commander in chief" and so on) and sees no contradiction. To be sure, the other side is just as bad (they want a construction of Article I and the bill of rights so loose as to escape the bounds of the black-letter Constitution, and a construction of Article II - for the duration of this Presidency, at least - so tight the pips will squeak), but there is some serious hypocrisy going on here from the administration.
In any event, I'm not sure how this opinion squares against the border search exception (see U.S. v. Ramsey), and the tone reads like Dick Durbin dictated it to Taylor's clerk.
I am not sure that the 6th Circuit is going to have to spend that much time and effort on this case. I think that the judge's logic is fairly circular, or can be viewed as a house of cards, and if you remove any one of the cards (State Secret privilege, standing, 1st Amdt., 4th Amdt., and finally FISA), the whole thing collapese.
A Carter appointee must be fairly old by now. I wonder if that plays into the sloppy writing. She got her BA in '54, so she's pushing 70 now. I know some septuagenarians who are remarkable, and maybe she's one of them. But I wonder.
The citation that Taylor was obviously looking for, BTW, is from Hugo Black, in Reid v. Covert: "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution."
MadisonMan said...
"A Carter appointee must be fairly old by now. I wonder if that plays into the sloppy writing. She got her BA in '54, so she's pushing 70 now. I know some septuagenarians who are remarkable, and maybe she's one of them. But I wonder."
Justices Stevens, Scalia, Kennedy and Ginsburg are all 70+ and seem to be firing on all cylinders, mentally speaking (Ginsburg has looked physically at death's door for several years now).
Simon,
I wouldn't go that far. Yes, there is a bit of side shifting here, with Republicans moving a bit from Congressional power to Executive power, and the Democrats in the opposite direction, from the Clinton Administration to the present.
But I would suggest that the position that is espoused by the anti-TSP camp is almost breathtaking in its arrogance, as evidenced by their fervent adoption of Jackson's Youngstown concurrance.
What is going on here is that a bit over 50 years ago, president Truman tried to seize the steel mills to overcome strikes, towards the end of the Korean War. This was rejected by the Supreme Court. Justice Jackson wrote a concurrance where he laid out three categories in which to view presidential action, opining essentially that presidential power is at its zenith when Congress and the president act together, but at its lowest ebb when the president acts against the will of Congress.
The decision languished for 50 years or so, really until the WoT, etc. got into court. It was rarely cited, esp. by the Supreme Court, but was there in the background. Then, in the Hamdi case, two of the most liberal Justices picked it up in their partial concurrence. Only in the more recent Hamden case has the Jackson concurrence been picked up by a majority.
In any case, what is breathtaking about it is the suggestion that a president will almost always lose when he defies Congress, no matter how close he is to his core power and responsibilities, and how far they are from theirs.
So, in this case, we have a statute signed justified through the Commerce Clause and signed into law by the same president who appointed this judge (Carter), trumping a president operating within the core of his power and responsibility - national security, significantly based on this Jackson concurrance that totally ignores any need to balance between the branches.
Lest you think that this is an overstatement, just consider that a single activist judge, appointed by the most anti-war, passivist, president of the 2nd half of the 20th Century has tried to shut down an ongoing intelligence operation that the Administration keeps saying is essential for our national security, based essentially on the fact that electronic communications between the plaintiffs and known or suspected terrorists has dried up as a result of their knowing about the program.
Simon,
But don't you think it a bit far the judge's position that the program should be shut down because electronic communications between the plaintiffs and known or suspected terrorists has dried up, esp. in a time of war with those precise terrorists?
Is that truly a viable reading of, in particular, the 1st Amdt. here? We have a long history of putting some limits on Free Speech, esp. in time of war. The decision espouses an almost absolutist view of that amdt., much in keeping with the view of posters who haven't been to law school, but rather just read (and the cite) the text of the amdt., and ignoring 200+ years of jurisprudence that teach that there are reasonable limits on it.
What must be remembered here is that her claim is not that the government actually listened into any conversation between any plaintiff and anyone else, or that such would or could be used in a court of law against anyone. But rather, the mere knowledge of the program (thanks to the NYT) was sufficient to chill communications - because those people who aren't communicating electronically any more with the plaintiffs have a reasonable fear that their conversations will be surveiled.
I don't know the first thing about Judge Anna Diggs Taylor. (Is it too juvenile to call her Judge Joanie Loves Chaci?) But I do know that judges are human and, like other humans, they sometimes get frustrated and swear they're mad as hell and not going to take it anymore. Especially as they near the end of their tenure and especially when they address issues they care about deeply.
Prof. Althouse said: "[T]he real analysis will have to come at the appellate stage." Trial level judges know this very, very, very well. They know they get zero deference when it comes to conclusions of law in important cases and sometimes resent being treated as if they were mere Magistrates or some lesser judicial officer. Maybe that's part of what motivated Judge Taylor. Maybe she figured she'd do the best she can with what she's got to promote justice, as she sees it.
Prof. Volokh said: "A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that)." Respectfully, I doubt it. The appellate judges will read her opinion, and keep it in the back of their heads, but they will pretty much start their legal analysis from scratch.
Prof. Volokh was careful to qualify his prediction of Judge Taylor's influence with the word might. I think that might is infinitesimal.
I agree with Eugene here. There are serious issues at stake here, and this isn't the vehicle for finally determining them. The decision is built like a house of cards, using somewhat circular logic. What that means though is that if an appeals court can knock just one card out, the house of such will fall.
The most likely place to start is either at the State Secret privilege or, esp. Standing. That would obviate the need to address anything else. All that an appeals court would have to do is say that no one has a right to expect to be able to freely converse with our enemies during a time of war with those enemies. And, boom, the house of cards falls down. No standing, no case.
But that is going to put barriers in the way of any of the other suits against the TSP wending their ways through the court system.
Let me rephrase my later post a bit. Knocking the State Secret privilege out probably won't do that much to dump the case because she essentially slid around it for the TSP. She found standing despite the privilege, based on what could be determined outside of revealing state secrets. The best place to attack it is with Standing.
(Is it too juvenile to call her Judge Joanie Loves Chaci?
lol!
knoxgirl: Thanks.
Yesterday, I tried especially hard (in the fashion thread) to think of a funny link for you, (maybe Arrested Development related) but I couldn't. My tiny brain produced nothing of even the slightest value.
Not to worry. Happens all the time.
Fortunately, my internal organs operate pretty much on their own without my having to pay much attention to them.
Steve makes a couple of points that i'll comment on:
If I were the President, sworn to defend this country from all enemies, foreign and domestic,
a minor quibble, and I'll admit that I didn't go research the words, but I'll bet that POTUS takes an oath a lot like my Army Officer's oath and it's:
"defend the Constitution, from all enemies foreign and domestic"
while I don't think the difference matters a lot, the ACLU might.
how can your speech POSSIBLY be "chilled" by the thought of warrantless wiretaps but not be "chilled" by the prospect of easily available wiretaps WITH a warrant?
The defendants and Judge seem to be on both sides of one issue here.
1. TSP warrantless taps are chilling on speech between the press and terrorists because their expectation of privacy is gone. Implication being that FISA warrants are a pain to get, take a while, so absent warrantless taps, these conversations happen without difficulty. Trust on both sides as it were. Press and Terrorists. Neither will rat the other out. (says something interesting about the allegiance of the press though)
2. Elsewhere, there is the presumption that FISA warrants occur instantly without pain and therefore the executive is over the line using this unconstitutional method, when the solution to protect the country is simply to follow the FISA Law.
I don't see how you can have it both ways.
Ann wonders whether the poor quality of the opinion is a result of lack of competence, "a hot feeling of righteousness and outrage," or a "subtle (!) combination" of the two. The first part of the opinion, dealing with the "state secrets" doctrine and standing issues didn't strike me as obviously incompetent, although for reasons expressed in response to your post yesterday, I think her standing analysis is very weak indeed. It's when she gets to the merits that the opinion becomes a poor parody of judicial craftsmanship.
Rather than the "subtle combination" Ann invokes, a third, perhaps related, explanation seems to me to be in play here. In some circles, including perhaps those in which Judge Taylor and her husband (one report says he is a U of M regent) circulate, it is just a given that Bush and everything he touches is evil and corrupt. The peremptory tone and over-the-top rhetoric of the opinion conveys not just "a hot feeling of righteousness and outrage," but also a sense that the conclusion on the merits in this case is just blindingly obvious. Reasoned argument becomes superfluous, "we all know" Bush is shredding the constitution here, and all that is required is condemnation of the usurper. Like Pauline Kael commenting on Nixon's election, Judge Taylor may not know a single person she respects who would entertain any doubt about the matter. This opinion strikes me as the product of someone writing from deep within that cocoon.
The portion of this opinion that jumped out at me was the discussion of standing. As I understand Judge Taylor's basis for distinguishing precedents holding that speculative "chilling" of speech wasn't enough to establish standing, she claims that because third parties (Al-Qaeda-connected sources) are afraid to talk to Plaintiffs by phone, Plaintiffs themselves have established concrete injury. One problem with this derivative theory of standing is that Plaintiffs' affidavits do not and cannot properly allege causation.
Let's assume that the affidavits properly allege that the overall volume of communications, and willingness of the sources to communicate, has decreased since the NSA program was made public. (Thank you NYT. Puts the lie to Mr. Keller's assertion that everyone already knew about the program, doesn't it?) This does not compel the conclusion that the harm flows from the alleged constitutional defects of the surveillance program as such. Sources may decide not to talk either because they don't like eavesdropping or because they have cooperated with or are planning to cooperate with our enemies and wish not to be detected. In the latter case, the unwillingness to communicate is proximately (i.e. directly) caused by an independent source—desire to cover up unlawful activity. Because there is no right to cover up unlawful activity, there can be no right to insist upon confidentiality in communications in which such unlawful activity is discussed.
Thus, the question whether a particular Plaintiff's inability to chat with a particular terrorist is actually the result of a challenged aspect of the program is entirely a matter of speculation. Plaintiffs have no idea why their sources won’t talk, and they therefore cannot establish concrete injury resulting from what they allege to be the unconstitutional aspects of the NSA program.
Maybe I’m just rusty on standing, but I don’t see how this causation issue isn’t a complete bar to asserting these types of derivative claims.
US Presidential oath of office:
"I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."
jeff_d
I think you bring up a good point. In order to slide around the State Secret privilege, the judge was forced to limit herself to real or likely al Qaeda and fellow terrorist travelers.
Not only does that leave her with bad actors at the other end of the phone calls, but it also means that talking with them may not be legitimate in the first place.
As you noted, she took some short cuts here, and one of them seems to be to blythely assume that the communications between the plaintiffs and the above identified bad actors is legitimate, and is more important than the Government's need to surveil the communications of known or suspected terrorists.
Because, as you suggest, conversations that are illegal by themselves, are not protected by the 1st Amdt. Thus, two bank robbers planning a bank heist can't claim to have had their 1st Amdt. rights violated when the police arrest them after overhearing their conversation - even if this might chill their conversations concerning past or future bank heists.
Of course, it could be argued that tapping the bank robbers' phones without a warrant might be a violation of their 4th Admt. rights. But not their 1st Amdt. rights.
I still read the Standing part of the decision as more of a 1st Amdt. argument, given how it dwells on the chilling effect of the mere knowledge of NSA's TSP.
Maybe she could have made a credible argument that at least the attorneys had a legitimate interest in speaking with enemies of our country, but she never bothered. This would seem stronger than a journalist claim, given the general direction that jurisprudence is going, after the Plame leak case, complete with journalists sitting in jail for trying to assert a non-existant privilege.
When the Washington Post rips you apart on this subject... it's time to retire.
After all, they're the ones who are supposed to be agreeing with you.
Guess the ACLU should have tried another supermarket when they were judge shopping.
The defendants and Judge seem to be on both sides of one issue here.
1. TSP warrantless taps are chilling on speech between the press and terrorists because their expectation of privacy is gone. Implication being that FISA warrants are a pain to get, take a while, so absent warrantless taps, these conversations happen without difficulty. Trust on both sides as it were. Press and Terrorists. Neither will rat the other out. (says something interesting about the allegiance of the press though)
2. Elsewhere, there is the presumption that FISA warrants occur instantly without pain and therefore the executive is over the line using this unconstitutional method, when the solution to protect the country is simply to follow the FISA Law.
Allow me to resolve this apparant contridiction: Those who are against the TSP would claim that their speech would not be chilled if they could rely on a judge having to approve any NSA wiretaps. The NSA is run by Bush and is, therefore, untrustworthy. Having a robed judge oversee NSA means that NSA will only listen to the right conversations, which removes Bush's evil taint and removes any chilling effect. (Next, the demand will be that any warrants issued be signed by a judge that was not appointed by Bush.)
The editors of the NYT must have received a special edition of Judge Taylor's opinion. Here is their take: "But for now, with a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them."
Or perhaps that's just how things look when one is even deeper in the same cocoon as the judge.
Those who are against the TSP would claim that their speech would not be chilled if they could rely on a judge having to approve any NSA wiretaps. The NSA is run by Bush and is, therefore, untrustworthy.
Let me speak up as someone who is opposed to TSP (isn't that a brand of phosphate cleaner, by the way?). That the NSA is run by the Executive Branch Only puts too much power in that branch of the government. We have their (cough) assurances that it's being used only for terrorists. I'm more ccomfortable if there is oversight by the Judiciary. That's more in line with the Constitution. I don't care who appointed the judge, by the way. I don't buy the theory that judges are absolutely beholden to the man who appoints 'em.
CO -
I don't agree with that at all. I think that you have to analyze all of the Constitution with the same construction; I don't buy your argument that we should approach Article II more broadly than Article I any more than I believe the liberal spiel that the rights-bearing provisions should be interpreted as broadly as possibly. "I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably ... I do believe, however, that you give the text the meaning it had when it was adopted," and that does not vary depending on what your preferred outcome may be, and still less on which department of government. I don't disagree that the President has implied powers, just as the Congress has implied and incidental powers, and just as the bill of rights is not limited to precisely its wording -- hence, for example, the right to expressive association, see Boy Scouts v. Dale, which is protected by the first amendment despite being mentioned nowhere in the text, or the Eleventh Amendment, which the court has read "'to stand not so much for what it says, but for the presupposition . . . which it confirms'," Seminole Tribe v. Florida (quoting Blatchford v. Native Village of Noatak) -- the scope of those implied powers should be taken reasonably from the powers enumerated. The President no more retains an unenumerated power sufficient to attend to pressing matters of national import simply because they are matters of great national import than does the Congress. The border search exception is carved out of Fourth Amendment violations in response to an implied executive power; the state secrets doctrine is in response to an implied executive need. But I would categorically reject a broad swathe of unenumerated - which is not the same thing as implied - executive powers, and a fortiori the supposition that we should apply different rules of construction to Article II than we do to Article I.
Madison Man: "That the NSA is run by the Executive Branch Only puts too much power in that branch of the government."
Power-wise, the NSA is nothing compared to the US military which is also "run by the Executive Branch". I assume then your too much power concept would then require judicial oversight of the Executive's running of the armed forces as well?
This ruling is embarrassingly poor because to reach the conclusions desired by the judge, it had to be.
"it is necessarily true that limits on the Lesislature = powers for the President."
Not in a system of government which explicitly reserves undelegated powers to the people. Your statement assumes that if government COULD (or perhaps SHOULD) have a power, then it DOES have that power, and if one branch does not wield it, another must. That is the logical thrust of your contention quoted above. But is is quite false; Article I lists the powers of the United States because never before had a government been explicitly limited to the powers it was being delegated; there was no need for a comparable list in Article II, because Article I had already spelled out the list of the powers of the government, which it was presumed would be the scope of executive action.
MadisonMan said...
"That the NSA is run by the Executive Branch Only puts too much power in that branch of the government.
For better or worse, it could only be run by the executive branch. That is the upshot of the statement in Article II §1 that "The executive Power shall be vested in a President of the United States of America," emphasis added. "[T]his does not mean some of the executive power, but all of the executive power," Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, dissenting). "[T]he Founders conspicuously and very consciously declined to sap the Executive's strength in the same way they had weakened the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. Thus, while "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," "[t]he executive Power shall be vested in a President of the United States." Id. at 698-9 (emphasis in original; citations omitted). If the powers being exercised by the NSA are of an executive nature - and it is hard to see how they are legislative or judicial, the other two possibilities - they must fall under the control of the executive branch.
Jimmy Carter holds the distinction, I believe, of having had more of his federal judicial appointments impeached and removed from the bench than any other president.
Maybe they missed one.
The blog Legal Fiction has a very good post on this opinion here.
Someone elsewhere pointed out that claiming harm from the program is in direct conflict with all of the "it's okay to reveal this because everyone already knows we're doing it" defense for revealing the classified program to begin with.
If revealing the program led to harm that wasn't previously affecting those people then it's not the program at all but the revelation of the program.
Are they sueing the wrong party?
"Are they sueing the wrong party?"
And for that matter, is the first amendment claim even ripe? Surely one cannot assert that speech has been chilled by the possibility that the government might hear it; every time one speaks in a public forum, there is a pretty good chance that the government will hear it, and every time one writes in the paper, there is a good chance (and a presumption) that the government will read it. Merely that the governmentmight hear speech does not chill speech; the chilling effect comes from the belief - sincerely held or otherwise - that the government might act on what it has heard. That is, the chilling effect is anticipatory: it presumes future conduct by the government, and "[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v.United States, 523 US 296 (1998).
Co-
The logical conclusion of your comment is that the Congress has no power where the Constitution is silent, yet that the executive is only deprioved of powers where the Constitution is not silent. That is an absurd and truly radical proposition, one that flies in the face of two hundred years of Constitutional practice and adjudication, and one that you're going to have to back up with considerably more than mere ipse dixit if you expect to prevail.
The Washington Post's editorial board demonstrates their ignorance of judicial matters (as in what a court is) by their grammer. "That authorization, the administration argues," The present tense makes it clear that they have not done their homework. Judge Taylor should have considered arguments that the administration made in her court, made past tense not makes.
The Post can criticize Taylor for failing to consider this or that argument seriously enough only if they can show that the argument was made in her courtroom.
The DOJ chose to ignore judge Taylors repeated order that they make their case on the merits. The ACLU did not argue that the AUMF amends FISA. The argument was not made at any length in the her courtroom and judge Taylor was not obliged to consider it at any length in her opinion. In fact, coming up with arguments that one party could have made but didn't is highly suspicious behavior in a judge.
The opinion explains a summary verdict following a motion in a courtroom. The stuff that the Bush administration argues to reporters is not relevant. As far as I can tell none of the legal experts here is clear on subtle concepts like court, courtroom, trial or motion.
Someone mentioned that the ACLUs argument is contradicted by the widespread claim that the NY Times could not have harmed US interests by reporting the program. I agree and note that the argument is completely irrelevant to judging judge Taylor, since it was not made in her courtroom
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