August 19, 2006

The shocking decision in ACLU v. NSA.

I guess I should say I gagged on it, to keep up today's neck/throat theme. But really...

I'm truly shocked. It's like the feeling you have when you're grading blue books and you realize this one's going to have to get an F.

I finally had the time today to read the whole opinion in ACLU v. NSA... I mean, that was the whole opinion, right? I kept shuffling the pages around and looking under the table to see if there were some pages I missed...

What the hell? Was there no law clerk who had enough nerve to say, Judge, it can't go out like this? How do you ever get to the level of arrogance that keeps you from seeing when an opinion is this patently deficient? Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to? I can see slipping into abject carelessness in a low profile case, but this is such a conspicuous case. I simply cannot fathom how a judge with any sense at all, with any assistance from law clerks who were not cowed into ridiculous submission, would file a case in this form.

I'm not talking about the normal way judges write result-oriented decisions, which is to layer in the scholarly and neutral-looking verbiage in the hope that most people will swallow it and the critics will seems like sore losers. This opinion -- beginning midway through the text -- does not even look like a rough draft. It seems as if the judge ran out of time and handed in something that was less than an outline. Much less.

The first half of the text is written in a creditable style. Most of this is the discussion of the state secrets doctrine, which concludes with a dismissal of the plaintiffs' claim challenging the data mining program. We then begin the material that leads to the judge's conclusion that the warrantless surveillance program -- known as TSP -- should be enjoined. The first few pages of this are written competently, as the judge finds that the plaintiffs are suing because they have a "distinct and palpable injury" and thus satisfy the first of the three constitutional requirements for standing to sue. Cases are cited and discussed appropriately. One could argue with the analysis, but it is what one expects from a decently written opinion.

At this point, with many issues left to discuss -- including the rest of the standing doctrine and all of the questions of statutory and constitutional law relating to TSP -- the writing falls headlong off a cliff. I have never seen anything like this. There are many sections left to the opinion, but each contains little more than preliminary verbiage -- quotes from old cases and zingers about how the Framers opposed King George III -- with tagged on conclusions about how "obviously" the Fourth Amendment/First Amendment/Separation of Powers is violated. These read like place-keeper sentences that were slated to be replaced by real analysis.

The judge grants a permanent injunction on the assertion that the requirements "have undisputedly been met." Undisputedly? No one disputed that the requirements were met? I guess that was supposed to be "indisputably." The judge drops a footnote listing the requirements for an injunction:
(1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
The text of the opinion offers three sentences of analysis of these requirements:
The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.
That's not analysis. That's a petulant refusal to take the task of judging seriously. Where is the discussion of hardship and public interest? The judge is so hot to hold the President to what she sees as his constitutional obligations. You'd think she'd take a little more care to give the appearance of adhering to hers.

28 comments:

The Drill SGT said...

The first and greatest of unalienable rights promised by the Declaration of Independence is that of Life. WRT your analysis, I was struck the by the way judge asserted that:


...requirements "have undisputedly been met." including:

"(4) that the public interest would not be disserved by a permanent injunction"


How can she be that bold to say that a free speech claim trumps public safety on a massive scale?


My second point is a strange twist. Note that standing in this case was established by journalists who claimed that they were in contact with terrorist enemies of the US and that after the NYT revealed that the Bush Administration was listening to overseas calls, their sources refused to talk on the phone.

I find it very satisfying that the NYT editorial page was ecstatic over a decision that effectively ruled in part that the NYT itself had damaged national security by revealing the presence of TSP. Remember that after the NYT published the TSP story, it claimed that terrorists already knew were tapping their calls and were not using the phones... no harm, no foul. NYT had not hurt US security. Now journalists and a Judge have ruled the NYT was wrong and real damage was caused. else no standing in the case.

wonderful!

teddy_kgb said...

In the judge's defense, if the standard is "that the public interest would not be disserved by a permanent injunction," i believe she is saying that public safety does not trump free speech enough for the injunction to not enter. You had it the other way around, and that's not the standard for an injunction.

Just saying. Unfortunately for the judge, she's still an idiot.

Unknown said...

I can't speak for the law clerks, but the ultimate act of revenge for a belittled underling would be to say, "Sure, judge, sounds great!"

Gerry said...

You assume her goal was to do what a judge is supposed to do.

I don't. I assume that she made a political ruling, and she will be rewarded handsomely by the factions on the left who will treat her as a hero henceforth. Books, speaking deals.

Ann Althouse said...

Gerry: No, I realize she might have wanted to reach her result and be adulated, but she did it so very badly. She should have tried harder. The puzzle is why didn't she. I'm saying it's mind-boggling arrogance.

Bruce Hayden said...

Maybe a bit of "mind-boggling arrogance", and maybe a bit of a hurry.

Ann, that is the most colorful description of the case I have read. 1000% more enjoyable than reading the case itself. It made it worth reading. Were you thinking of your concreteness posting when you wrote it? The part I loved the most was: "At this point, with many issues left to discuss -- including the rest of the standing doctrine and all of the questions of statutory and constitutional law relating to TSP -- the writing falls headlong off a cliff".

Bruce Hayden said...

Her conclusion is: "For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law.

I have still to figure out what the APA is doing there, or, indeed if it means what I assume it means (Administrative Procedures Act?) And she never bothers to tell us precisely what statute is violated. Was it FISA? Which FISA provision? Or was it Title III (of the Wiretap Act)? Or both? Or some other unmentioned statute? And since when is "Separation of Powers doctrine", by and of itself, actionable?

Ann Althouse said...

Bruce: Yeah, I have a big question mark in the margin there. She didn't even bother to throw in a rudimentary APA section.

Simon said...

Complete lack of analysis? Legally highly dubious? More interested in reaching the result desired than how? Gee, I guess now you know how those of us who can't believe anyone takes Roe seriously feel. ;)

The Mechanical Eye said...

Yeah, I have a big question mark in the margin there. She didn't even bother to throw in a rudimentary APA section.


Maybe its from just graduating from law school, but I just imagine you writing CONCLUSORY and WHERE IS YOUR ANALYSIS all over your copy of the decision.

Perhaps this decision will have a second life as an example of less than exceptional legal reasoning.

Art said...

I can't figure out why everyone's so upset.
If it's that badly reasoned, it can't help but be overturned on appeal, right?
Presdident Bush, who "wins by winning", wins again and becomes even more powerful. That's what you seem to want?
((and I'm referring to some of the comments, and not to Prof. Althouse who, as far as I know, hasn't announced whether she has a dog in this fight.))
If the legendary Bush luck holds, the appelate court will hand down it s decision right before the congressional elections and he can use the spin from that to pop a few congressional and senate races his way.

Don't worry. Be happy.

Steven said...

I am, as an individual, heartened that the analysis of law professors matches that of someone so totally unschooled in law as I am. Yay me!

I am, as a citizen, disappointed that the decision really was as bad as it seemed to me on my first reading of it. Bad decisions (as opposed to merely worng ones) are bad for the health of the Republic. (Though as long as they're few enough, they aren't fatal.)

Stephen B. said...

I'm no constitutional law expert (yet), but I can't understand where the judge gets that the plaintiffs have standing to sue. She outlines the requirements clearly on page 16:

To establish standing under Article III, a plaintiff must satisfy the following three requirements: (1) “the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “there must be a causal connection between the injury and the conduct complained of”, and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Then back on page 2, she notes that "[e]ach Plaintiff has alleged a 'well founded belief' that he, she, or it, has been subjected to Defendants' interceptions."

Is a 'well founded belief' sufficient to bring suit. Seems to me like the Plaintiff's would have to prove actual harm, not a belief that they were harmed. Can they prove that their own communi/cations were subject to interception? It seems likely not without discovery of evidence over which the government would surely invoke state secret privilege. And without that, it seems like the plaintiffs wouldn't be able to prosecute their case.

I don't know. I'm just a humble undergrad hoping to get accepted to good law school. So I'm having trouble getting past standing to sue.

Ruth Anne Adams said...

I'm truly shocked. It's like the feeling you have when you're grading blue books and you realize this one's going to have to get an F.

Is that feeling really "shock"? I might imagine that feeling as a sinking feeling, disappointment, or dismay, or a little "tsk tsk, we took a week to cover that concept". I wouldn't be "shocked" by a student underperforming.

Bruce Hayden said...

A well founded belief is sufficient to bring suit. Maybe not for summary judgment, but clearly to bring suit. Most of the time that is part of what discovery is for - to flesh out those well founded beliefs.

There have been a lot of commenters over at volokh.com who seem to read these unrebutted statements as evidence sufficient to support the conclusions of law. I don't, because it is fairly likely that the reason that they were unrebutted is that the government refused to confirm or deny them under the State Secrets Privilege.

Normally, not controverting a declaration is suffient for summary judgment. But if I am correct, that the government didn't respond either way to these claims, then it would have been illegitimate for the judge to use the fact that they were unrebutted to support her summary judgment.

Stephen B. said...

Bruce Hayden: Thanks. That explanation really helps.

Seven Machos said...

Here's what I don't really understand. You are at the trial level. Been doing for a long time. You know this case is headed straight for the Supremes. You know that you will get overruled in some way no matter what you do. Isn't the thing to do to shape the facts of the case as much as possible? Isn't that the way the lower court can have a real effect? Maybe this judge did shape the facts. I don't know. But the shrillness of the opinion is just begging to be shot down.

I wish Posner could write the appellate opinion. That would be fun.

dearieme said...

Perhaps she feels that adhering to constitutional obligations is for the little people?

Ann Althouse said...

Ruth Anne: Yes, for an F, it is truly shock. I've given fewer than 10 Fs in over 20 years of teaching. It really is a different reaction from what you have when you see the worst of what you knew would have to be somewhere in the pile of exams pile. You're actually shocked to see that there is something that far below the standard. An F isn't just one that turns out to have the lowest raw score, which you realize when you're comparing all the raw scores. It's one that you can see, when you're reading it, that it will fail.

Ann Althouse said...

Bruce Hayden said..."There have been a lot of commenters over at volokh.com who seem to read these unrebutted statements as evidence sufficient to support the conclusions of law. I don't, because it is fairly likely that the reason that they were unrebutted is that the government refused to confirm or deny them under the State Secrets Privilege. Normally, not controverting a declaration is suffient for summary judgment. But if I am correct, that the government didn't respond either way to these claims, then it would have been illegitimate for the judge to use the fact that they were unrebutted to support her summary judgment."

Once you get past the first two things in the case, the data mining claim (where the govt wins) and the first prong of the standing doctrine, there is no discussion of what was in the complaint or missing from the answer, nothing about the requirements for summary judgment or the sufficiency of the evidence, so I don't know what you're talking about. She does repeatedly use the word "undisputedly" but not in reference to allegations in the complaint. If you're making a civil procedure point, please restate it more clearly.

Seven Machos said...

dearime -- Read the opinion.

Bruce Hayden said...

Ann,

Sorry if I am not better at expressing myself, but here goes. My only defense is that I sometimes get a bit disoriented from participating in multiple threads on the same subject at the same time, all from a slightly different tact.

Originally, I criticized the opinion because I couldn't find any factual support for most of the judge's conclusions of law. While I would have liked more, I did see how she supported her 1st Amdt. and Standing conclusions. But the rest of them just appeared to be hanging in thin air.

But then, reading other threads, and rereading the opinion a couple of times, it appears that she might have been basing her other conclusions of law on unrebutted declarations by the plaintiffs, in particular, that they had a good faith belief that they had been electronically surveiled.

I think that keeping with your thread, I probably should have stopped right there, because to some extent the rest of that post was more civil procedure and post-trial procedure oriented than truly a critique of the opinion itsef, because I was no longer limiting myself to the four corners of the opinion itself, but how things are going to look upon appeal.

And with that in mind, that I was really speaking of more the procedure and record for appeal, what I was trying to point out what that the judge seemed to be basing most of her conclusions of law on those unrebutted declarations by the plaintiffs. But I think that it is likely that if this is true, then the attack on such during the appeal will likely be that they were unrebutted because of the State Secret Doctrine, and, thus, it is illegimate to treat them as unrebutted.

Finally, I have complained about the opinion not mentioned what APA meant and what statutes were violated (and how). One poster angerly referred me back (again) to the judge's order that does spell out that APA does, indeed, mean what we thought it did, and that the judge had concluded that the TSP violated both FISA and Title III.

I, along with most lawyers, law professors, and law students, expect this in the opinion, since orders disappear so quickly in the cronicling of legal precedent. And it would have taken 30 seconds to cut and paste that stuff from the order into the opinion, but, nevertheless, it is still available, at least right now.

Bruce Hayden said...

I just reread my last post, and came to the startling discovery that it was riddled with gramatical and spelling errors. I appologize to all concerned for my haste.

Richard said...

Judge Taylor’s decision is not even wrong.

Tano said...

Sorry Ann, but 'round your second paragraph I gave up, seeing as your mission seemed to be to cram 3x more hyperbole into your post than Judge Taylor crammed into her opinion. Don't you have a clerk or someone who can tell you....

Charles said...

The judge clearly stated that the unwarranted wiretappings were unconstitutional by virtue of the Fourth Amemdment and FISA. It's about time someone tried to stop this runaway train. Pertaining to the "King" quote, Bush and his ilk have been acting like a monarchy ever since 911, with no regard for the Congress, the Courts, or the people. The USA PATRIOT Act and his signing statements on newly passed legislation are egregious examples of his absolutism. I find it utterly incredible that you can completely disgrgard the fact that if Bush wants to know why Al Quida is calling someone in the US, as he's so fond of stating in his press conferences, the NSA can easily obtain a warrant for that particular phone number, or email address, from the secret FISA court. He can't be bothered complying with the "Law of the Land." He believes he is a law unto himself. Are you so naive, at this point in history, to believe that if Bush says it's legal, therefore it is? If it is legal why are some spineless members of Congress talking of passing another law which would nullify FISA and ensure that the actions of Bush and the NSA are legal? Paraphrasing Benjamin Franklin: Those who are willing to forfeit their freedom in exchange for security, deserve neither. Congress needs to impeach Bush, Dickie, and Rummy, but they won't.

steve said...

Geez Professor Althouse, An F? That makes me even more proud of my A from you.

I thought the opinion was fine; it basically holds that FISA is the stated law on surveillance, that the President's program is out of bounds, and that they Plaintiffs' have standing to complain about it. Judge Taylor sits here in the Eastern District of Michigan (Detroit), and has a caseload of, oh I don't know, maybe 70% criminal matters? Drugs and guns, immigration issues, Habeas claims, etc. She constantly follows Congress' detailed criminal statutes (AEDPA, IRRIRA, PLRA, etc) in this context. Why not expect her to hold FISA in the same regard?

My favorite part(s) of the opinion are definitely the three mentions of Skelly Wright (two going so far as to actually say "Skelly"). I first learned about Judge Wright from your colleague Bill Whitford. And I also like the repeated references to King George III. Hopefully, 230 years later, we only get up to George II before rebelling.

Der Tommissar said...

Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to?

Umm, it seems to have worked for Roe v. Wade so why not again?