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.)Well, that might explain the weird repetition of the strange word "undisputedly" throughout the opinion. I wonder why Judge Taylor didn't lay it on the line that this is what she is doing. She could have said: The plaintiffs have moved for summary judgment and they have, as required, demonstrated the absence of a genuine issue of material fact.
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.
Moreover, if we go to the DOJ link that Kerr provides, we see that the government not only moved for summary judgment (and, alternatively, for dismissal) based on the state secrets privilege, but it also moved for dismissal or summary judgment based on standing. I note that the first part of the judge's opinion, dealing with the state secrets doctrine and standing -- or at least the first prong of the three-part standing doctrine -- is decently detailed and judicial in tone. Perhaps late in the game, the judge got the idea of rushing to the finish line and deciding all the substantive issues in the case.
If we go to page 4 of the linked DOJ document, we see the unclassified memorandum supporting the state secrets motion, and it also refers to a motion to stay consideration of the plaintiffs' motion for summary judgment. Go to page 57 of the linked document for the argument for staying the plaintiffs' motion: the claim of the state secrets privilege necessarily precedes any motion that requires consideration of the evidence and cites cases justifying the use of discretion to stay the plaintiffs' motion for this reason.
The word "stay" does not appear in Judge Taylor's decision!
Surely, it is absurd to blame the government for failing to raise a factual issue when it was arguing for that the facts were privileged! And to do that without even discussing the fact that you are doing that, without mentioning the motion to stay is truly outrageous.
If I'm missing something, please let me know.
UPDATE: I see from reading the comments to Orin's post that the judge did deny the motion for a stay on an earlier occasion, on May 31st. You can see the order here. There's no discussion of the reasoning for this or of any of the cases the defendants cited in support of the motion for the stay. Arguably, this gave the defendants an opportunity to present evidence to defeat the summary judgment motion, and they chose not to take it.
ANOTHER UPDATE: The 6th Circuit reverses the decision -- discussed here.
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If you lose a motion for a stay in the district court you can seek relief in the Court of Appeals. Why didn't the Goverment do that in June?
I find that puzzling.
After reading the posts on the Kerr thread, I'd offer this, which is based in part on what I read there:
It does look (at least from this distance) as if the ruling was at least partly a product of the peculiar procedural posture of the case. The gov't made a tactical decision to acknowledge the program and argue that the privilege barred the entire action. The judge agreed with the gov't but only in part. Then, once it became clear that the judge didn't buy the argument that the privilege barred the other part of the action, as the defeats on the stay/reconsideration motions demonstrated, the gov't put itself at risk by failing to contest on the merits. It looks odd from a litigation perspective but not from a policy perspective. For example, suppose the gov't has made a policy decision that it simply will not litigate the merits unless it's forced to (think of a very rough analogy to Padilla here). That would explain the posture here. Worst case: lose in the district court, appeal and relitigate the secrets issue before the Circuit. If the Circuit agrees on the privilege point, the gov't avoids ever having to litigate the merits.
The DOJ brief supports this reading, I think. If you look at the TOC, there are really three points: plaintiffs lack standing, the case cannot be adjudicated and the case should be stayed pending the secrets decision (which should result in a dismissal of the entire case). There's no suggestion in the section on the stay that the judge do anything other than dismiss the entire matter.
Okay, bottom line: does this lessen the judge's earlier seeming incoherence to a significant degree?
paul: I think it helps understand some things, but raises new questions, including the question why the opinion doesn't discuss this. Normally, a legal opinion details the procedural issues!
Here are two additional thoughts. First, the procedural issues are implicit in the structure of the opinion. Second, this is really a default judgement for plaintiffs.
Procedure: The secrets issue is first, and on p.12-14, the court finds that the issue doesn't require a dismissal. The key here is that the opinion states that plaintiffs have made out a sufficient case. In other words, the plaintiffs, by proving that the case can be resolved without secrets, have also proven their case sufficiently to win a motion for summary judgment. The next procedural step is the standing issue. From what I saw of the DOJ brief, that's the only issue that the gov't briefed other than state secrets. So the court considers that issue, and finds that plaintiffs have standing. After that, the court is, as it notes on p.42, "constrained" by civil procedure rules to find for plaintiffs. In other words, the gov't refused to litigate the merits of any issue other than standing, once the court decided that the plaintiffs had made out their initial case on the merits, the judge was obliged to rule for plaintiffs.
Default: No, it's not, strictly speaking, a default judgment. But perhaps that's the easiest way to understand what happened. I think it was a mistake for the judge to not explain the procedural posture. It would be helpful if a case in the news doesn't generate so much confusion. It would also have saved the judge a great deal of criticism if she'd explained that since the gov't hadn't contested the merits, all that remained was to step through the plaintiff's arguments. That's what I mean by a default: the gov't simply didn't respond to those arguments.
If I'm following things correctly, always a big if, the argument is that the DOJ briefed the state secrets and standing issues and did not brief the rest of the case (an understandable position since, winning on either issue makes it unnecessary to do the rest). The Judge, finding against the government on those two issues, was then forced to find against the government on the merits of the case because the government did not defend that portion of the case.
Two responses: First, this simply does not make sense. To find for the plaintiffs on the state secrets question, the Judge had to determine not just that the alleged secrets were necessary to the government's defense but that no reasonable trier of the facts could have been persuaded by the government's position on the merits. In order to determine whether the alleged secrets were necessary for the defense, she had to understand both the facts that were and were not at issue and how the government would use both at trial. In essence, she found that it did not matter what defense the government would have put on because no court would have found any possible defense (with or without the secrets) persuasive. This means that this was no mere procedural miscue by the defense. The Judge claims that she knew all that anyone needed to know and that, based on that evidence, no other outcome was possible. What was left for the government to brief?
Second: How in the could the Judge have made this factual determination based solely on the public record? (Recall, the Judge said nothing she reviewed in camera would have altered the outcome. The public record is all she should have used to reach her decision.) Since when do press reports amount to evidence that is admissible in court (without the need to call witnesses to establish proper foundation)? When is a press release or something said at a press conference binding upon the government -- at least to the extent the government would not be allowed to "revise and extend" the remarks and to offer alternative interpretations of them? No question on cross put to any witness could elicit any detail that would have mattered to the outcome. Many respected experts in the law claim not to know enough about the NSA program to conclude -- for sure -- that the program violated the statute or the Constitution. That's part of the public record, too. Isn't that proof that a trier of fact could have found for the government?
sparky writes:
Then, once it became clear that the judge didn't buy the argument that the privilege barred the other part of the action, as the defeats on the stay/reconsideration motions demonstrated, the gov't put itself at risk by failing to contest on the merits.
I don't think the DoJ necessarily had to read the defeat of the stay motion as a defeat of the state secrets argument. The court was simply informing the DoJ that it would want to be fully briefed in order to proceed to the merits in the event the state secrets argument did not prevail. The judge's denial of stay need not have been expressed in a full opinion; it was simply a discretionary exercise of control over the court's docket.
David Walser writes:
Since when do press reports amount to evidence that is admissible in court (without the need to call witnesses to establish proper foundation)? When is a press release or something said at a press conference binding upon the government -- at least to the extent the government would not be allowed to "revise and extend" the remarks and to offer alternative interpretations of them?
I think press reports would be admissible on an SJ motion to show that something had been said by a government official. The DoJ is free to dispute the plaintiffs' characterizations of those remarks.
Suppose that a person were asked by two different people at the same time, "Did you kill Mr. X?" and "Did you eat the last donut?" and the person responds, "Guilty as charged." The statement would be admissible evidence at that person's trial for murder of Mr. X, but of course the person would try to persuade the judge or jury that he meant to answer the donut question.
Professor Althouse, it seems a triffle odd that you are hedging by saying, "Arguably, this gave the defendants an opportunity to present evidence to defeat the summary justice motion, and they chose not to take it." What do you mean arguably? I can see from your posts that you are taking every chance you have to attack Judge Taylor, but there was a hearing. The stay was denied. What more do you want from Judge Taylor? Oh, right, a ruling that the President has all the power of a King and that the Constitution is an inkblot on the, thing. Well, some of us still believe in constitutional principles, separation of powers, and everything that we were taught in grade school civics.
Beyond: I want a discussion in the decision on the summary judgment motion of what the procedural requirements are and why they were meant, not the barely literate repetition of the word "indisputedly," leaving me to puzzle out what she's doing. The judge needs to show that she's following a judicial method, and this is the least inspiring demonstration of judicial method I have ever seen, given the magnitude of the case. As I've written before, I was shocked. Nauseated, actually. I want to be able to read the opinion and by doing just that, understand what happened and feel confident that the judge who exercised the judicial power really behaved like a judge. This performance was not inspiring, and, as such, it hurts the entire enterprise of judicial review, the power of the judicial branch, and, quite perversely, reinforces the power of the political branches. If you're so blinded by your enthusiasm for the outcome that you don't see the problem, think again. If there are enough people like you, I fear for the power of the judiciary.
And, Beyond, you need to ask yourself whether the limits on power that you purport to care about also apply to the judiciary. They aren't kings/queens either.
Sparky: If the judge decided the way she did because she believed she was constrained by civil procedure rules, i.e., that she had no discretion, that would be a legal error and reversible.
Note - the judge wasn't really basing her decision on the press reports, but, rather, most likely on plaintiffs' undisputed facts submitted to the court, that excerpted press reports plus included some reasonble beliefs by the plaintiffs (i.e. that they were surveiled).
If you combine plaintiffs' undisputed facts with the judge's decision to see what she could do with just that, I think that she could legitimately from an evidenciary, but not legal, point of view come to her 1st Amdt. decision - all that takes is the press reports of the TSP program and the unrebutted (and, likely, unrebuttable) statements by the plaintiffs that electronic communications between them and the known or suspected terrorists dried up in apparent response to knowledge of the TSP.
But that is where I think that she should have stopped. I read the opinion as depending on plaintiffs' unrebutted belief that they had been surveiled as the basis for her apparent determination that they indeed been surveiled by the TSP, despite the fact that the government most likely didn't rebut this assertion because of the State Secret privilege.
The way that I see this tying into the civil procedure question is that under normal circumstances, a party's failure to rebut allegations in such a proferred set of undisputed facts would be taken as admission of them. And undisputed facts make summary judgement much, much, easier.
But in this case, the "undisputed" fact that is key to all of the court's later findings, whether explicitly, or, in this more implicitly, is that the defendants were surveiled by the TSP. Without that, there are no 4th Amdt., FISA, or Title III violations. Terrorists sitting in a cave in Pakistan don't have 4th Amdt. rights as we know them, but the plaintiffs do.
And that is the "undisputed" fact that I think the judge illegitimately utilized in her summary judgement decision.
I should also note the obvious - that, as noted by Ann the other day, the quality of the opinion is so low, that we are left guessing at all this.
alkali:
you're quite right. thanks for the correction. and thanks, also, for your excellent posts at Volokh.
ms. althouse:
you're right as well; i put it unclearly, and thus poorly. thanks for the correction.
Reading Orin's thread, it appears that in privilege cases like this, what typically happens is that the judge rules on the privilege first, and then, with what is left, the merits, giving everyone a chance to react to the privilege ruling.
The problem here is that she wrapped everything up together into one ruling, and, arguably did not give the government a chance to react. In particular, I think it would have been proper for her to specify which of the undisputed facts supplied by the plaintiffs were admissible despite the State Secret Doctrine.
The problem is that most of them are undisputed - the government can't really contest that someone said something, when they obviously did. And many of them can be taken as admissions due to being made by officers of the government acting in their official capacity.
Of course, the judge didn't tell us what she used to make her rulings - and in this case, what specific evidence she used to find the FISA, Title III, and 4th Amdt. violations. The only thing I can find in the undisputed facts is the "well-founded belief" that three of the plaintiffs were surveiled by the TSP. And that "fact" should arguably be inadmissible under the State Secrets Doctrine.
But back to procedure, my contention is that the assertion of the State Secret Doctrine by the government should be sufficient to reverse those three findings of violation (and, as a result, presumably, the APA violation), on the grounds that the plaintiffs failed to show one element of their claim in each case: that one of them was illegally surveiled by the TSP. And, thus, the government's failure to contest the plaintiffs' case on the merits will be moot.
I have no idea what inspired The New York Times to publish your Op-Ed, but it does not properly reflect the nature of TSP, and appears to have been written without benefit of familiarity with the pleadings.
Taking issue with Taylor's use of "Justice Warren", rather than "Chief Justice Earl Warren", right out of the gate, transforms the entire Op-Ed to nothing more than a blindsiding personal attack, or an application for a judgeship.
Anybody familiar with Federal Civil Proceudre will have no trouble solving the "procedural puzzle." The Supreme Court set the standard in Celotex, 477 US 317, at 323:
"the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation,*323 there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."
The Government chose to risk losing, placing its entire bet on the State's secrets argument and not making any showing of proof of a material fact. The Judge was not only entirely within her rights, but REQUIRED, to rule as commanded by the Federal Rules of Civil Procedure as interpreted by the Supreme Court of the United States. Any person who says otherwise is laboring under either ignorance or an agenda.
dhonig: You're confusing facts and law. A summary judgment means there's no factual issue to be resolved. You still have to get the law right!
I appreciate your response, but it is disingenuous, at best. Your argument, above, was to the Judge's "weird repetition of the strange word 'undisputedly' throughout the opinion." That "strange word" referred to the lack of factual dispute. So no, I am not confusing law with fact. You, on the other hand, seem to be attempting to dismiss my critique, hoping your off hand manner will disguise your error.
Your criticism of the opinion was based upon your failure to acknowledge, or perhaps even recognize, (a) the stay was previously denied, and (b) the government's failure to raise genuine issues of material fact. Real analysis and discussion of the opinion would be far better served through admission of your errors than flippant (and erroneous) respones to your critics.
Smafdy,
I did not see your comment, posted in response to mine, until just now. I doubt you'll come back, but in case you do, here's my response:
First, it's not clear that the TSP is a violation of FISA for several reasons, of which I'll just mention one. The text of the statute does NOT require a warrant if the intercept takes place outside the US and the intercept does not target a US person. It is possible that the NSA does its intercepts outside the US and seeks a warrant once someone is identified as a "person of interest." If this is the case, there is no violation of FISA. We don't know, for security reasons, where the intercepts are taking place. We do know that the Administration is processing a record number of FISA warrants (over 5,000 at last count). Why would they be processing all these warrants if their goal was to simply ignore the law?
Since it's possible that FISA was not violated and determining whether it was or not depends on classified information (that is, without know exactly where and how the intercepts are made, we cannot know which part of the statute controls and whether those provisions were violated), the state secrets claim should have prevailed.
However, if that conservative rag, the NYT, is to be believed, the TSP program was vetted by teams of lawyers from the NSA, the DOD, the DOJ, and the White House Counsel's office. These attorneys (mostly staff civil servants) believe the program to be lawful both in design and in operation. Again, per the NYT, these attorneys continue to monitor the operation of the program for compliance with the law. There is even a report that the program was halted after a senior DOJ official raised questions about its legality. (The official was serving temporarily while another official was on leave.) The program was not restarted until these concerns were resolved. All of this bespeaks of a good faith effort to follow the law -- unless you think all these public servants are willing to participate in clearly criminal conduct. Personally, while I've got an ego larger than most, I don't think I know more about this area than do the people who deal with it every day.
Note: I hope you won't consider these argument sophistry. They are based on a reading of the FISA statute and on a detailed review of the public record. As for which experts do not consider this a clearly settled question, try the good folks at Volokh.com. Many there do think the program most likely violates FISA, but concede they cannot know for sure without knowing the details of the program.
Smafdy,
I did not see your comment, posted in response to mine, until just now. I doubt you'll come back, but in case you do, here's my response:
First, it's not clear that the TSP is a violation of FISA for several reasons, of which I'll just mention one. The text of the statute does NOT require a warrant if the intercept takes place outside the US and the intercept does not target a US person. It is possible that the NSA does its intercepts outside the US and seeks a warrant once someone is identified as a "person of interest." If this is the case, there is no violation of FISA. We don't know, for security reasons, where the intercepts are taking place. We do know that the Administration is processing a record number of FISA warrants (over 5,000 at last count). Why would they be processing all these warrants if their goal was to simply ignore the law?
Since it's possible that FISA was not violated and determining whether it was or not depends on classified information (that is, without know exactly where and how the intercepts are made, we cannot know which part of the statute controls and whether those provisions were violated), the state secrets claim should have prevailed.
However, if that conservative rag, the NYT, is to be believed, the TSP program was vetted by teams of lawyers from the NSA, the DOD, the DOJ, and the White House Counsel's office. These attorneys (mostly staff civil servants) believe the program to be lawful both in design and in operation. Again, per the NYT, these attorneys continue to monitor the operation of the program for compliance with the law. There is even a report that the program was halted after a senior DOJ official raised questions about its legality. (The official was serving temporarily while another official was on leave.) The program was not restarted until these concerns were resolved. All of this bespeaks of a good faith effort to follow the law -- unless you think all these public servants are willing to participate in clearly criminal conduct. Personally, while I've got an ego larger than most, I don't think I know more about this area than do the people who deal with it every day.
Note: I hope you won't consider these argument sophistry. They are based on a reading of the FISA statute and on a detailed review of the public record. As for which experts do not consider this a clearly settled question, try the good folks at Volokh.com. Many there do think the program most likely violates FISA, but concede they cannot know for sure without knowing the details of the program.
that a tenured professor at a top-tier US law school would make this argument:
After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?
is, frankly, beyond frightening. And to consider I considered attending this professor's law school. I'm glad I chose elsewhere.
Kenevan McConnon, I understand the concept of "if you don't dispute the other guy's assertions, you lose." However, while the Judge ruled on the state secrets question, it's not at all clear that the ruling was the correct one. (Which is the major problem with the opinion as published. You can't tell why the Judge did what she did because she doesn't articulate her reasons.) However, I believe I can demonstrate that the question of whether FISA was violated cannot be answered without information that is not in the public record. (See my comments to Big Mitch in the comments thread on Ann's NYT column for an explanation.) If I am correct, the Judge's ruling on the state secrets question just won't fly, because it's plainly wrong. (Sorry.)
If you represent the government and you cannot disclose the information necessary to properly defend you client (because the information is classified) and the Judge rules that the case can go ahead despite this obstacle, what do you do? I think you'd end up doing pretty much what the DOJ did here. DOJ does not have the authority to declassify the data. Therefore, DOJ can do little other than continue to maintain the practical impossibility of complying with the Judge's request DOJ brief the merits and wait to raise the state secrets question at a higher level.
Prince Roy: You don't seem to recognize the punctuation mark that looks like this: ?
You don't seem to understand the way language is used in an argument. This tenured professor gives you an F for reading comprehension. Learn some rhetoric.
David Walser: I would add to that that even if the judge is right on the state secrets doctrine, the failure to stay the summary judgment until after she'd decided that was an abuse of discretion.
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