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August 17, 2006

Comments

Are you hissing in satisfaction in the title?

Wow. But...violates free speech? WTFO?

obviously, RedState is pretty sure this is all the fault of an America-hating, activist, liberal (Carter-appointed!) judge. ahhh civility.

Slarti: the plaintiffs argued that they are people who need to communicate with people who are overseas, and whom the government might think are terrorists; and that they were damaged by having those people no longer be willing to talk to them, and/or by having to travel overseas to communicate. The judge agreed, and held that because the NSA program chills speech, and does so by violating the 4th amendment, it violates the first as well.

And JakeB: I am trying to stop hissing. We shall see whether TypePad lets me. But thanks for pointing it out ;)

Wow.

But are the administration actually likely to stop, just because a court tells them to? They've ignored court orders to stop criminal behavior before, with no repercussions.

I haven't checked Greenwald's place, I assume it's one big party.

But are the administration actually likely to stop
And how would we possibly know if they do? Short of a whistleblower, I can't see how.

Jes: I think that even if we assume the absolute worst -- that Bush and Cheney don't care about court orders, etc. -- an injunction allows their subordinates to say: we can't do this; it's illegal. And those subordinates include not just David Addington, who would be unlikely to say any such thing, but the NSA, other parts of the intelligence community, plus the Justice Department lawyers. And I don't think that all (or most) of them would be willing to flat-out break the law. (Earlier, they were in the position of relying on the administration's lawyers' word that it was legal; now there is no such argument, at least until another court rules.)

And that's the worst case.

That seems a bit of a stretch to me, hilzoy, but lacking any judicial credentials, I look askance at my looking-askance.

Infringing on free speech by listening is a rather odd notion. I can see the privacy issue, but the free speech issue seems, as I've said, stretchy.

"Be careful what you say on the telephone and in e-mail, because we may be listening to you and will act accordingly"

....*may* have some effect on free speech....

Slarti: me too; I was just passing on the actual argument.

I'm not really enough of a lawyer to know about this. I do know that freedom of speech extends beyond prohibiting bans on speech to preventing various government actions that "chill" speech. So it doesn't seem to me to be crazy to suppose that that argument applies here. (Quite possibly wrong, but not crazy, the way claiming that it violates the part of the Constitution that says that each state shall have two Senators would be.) On the other hand, I think it's a bit of a stretch.

Yes, I understand that you're just the messenger, hilzoy. Still, it's nice to know that I'm not completely alone in this view.

zmulls, that can apply to public speech as well. Does that mean the government cannot listen to public speech because that may tend to chill public speech?

Many statutes have been struck down based on the "chilling" effect they have (or may have) on free speech.

Balkinization cleverly points out that what created the chilling effect wasn't the NSA program, but its becoming public.

One or two examples might be in order, here. Remember (as if I have to remind you), IANAL.

Haha, beat you by 24 minutes.

;-) ;-) ;-) :-)

(I am just kidding and yanking your chain, you know, I hope.)

Oh, you should definitely checkGreenwald, for what the decision means, what is likely to happen on appeal/possible stay, how the right is attacking the judge, and more.

Balkinization cleverly points out that what created the chilling effect wasn't the NSA program, but its becoming public."

Yes, I just came to that conclusion myself, based on reading through page 19 or so of the decision.

Oh, you should definitely checkGreenwald, for what the decision means, what is likely to happen on appeal/possible stay, how the right is attacking the judge, and more.

Oops, damn double post. Sorry

zmulls, that can apply to public speech as well. Does that mean the government cannot listen to public speech because that may tend to chill public speech?

"Does that mean the government cannot listen to public speech because that may tend to chill public speech?"

Slart, it's perfectly legal for the government to listen to public speech. Of course. (Although internal guidelines may or may not prevent targeting, that is, going to a particular place for the specific purpose of listening to someone's public speech, without probable cause -- for instance, in a mosque or church, or of a specific political group; there had been such guidelines for some agencies after the abuses of the FBI and Army Intelligence and other agencies were revealed in the Seventies, but most of them have been swept away in the PATRIOT ACT era.)

But the whole issue here is private speech, and only as regards eavesdropping without a warrant.

So, the answer to your question, as regards current law, is no.

"But the whole issue here is private speech, and only as regards eavesdropping without a warrant."

So, as I've been saying, it's not a First Amendment issue at all; it's that right-to-privacy amendment (which I can't name right offhand).

Unless I've completely missed something, and eavesdropping without a warrant has ALWAYS been a First Amendment issue. Which, as always, could happen, this being me.

"So, as I've been saying, it's not a First Amendment issue at all; "

No, I don't see how you get from one to the other.

Once the speech is being illegally eavesdropped on, knowing that that might be done causes the chilling effect, thus bringing the First Amendment into play.

Again, has the requirement for warrants when performing wiretaps, etc ever been nailed to the First Amendment? If not, what you are saying is untrue. If so, score me some bonus educational points through being publicly incorrect.

"Again, has the requirement for warrants when performing wiretaps, etc ever been nailed to the First Amendment?"

IANAL, and I don't have access to LEXIS; I'm not sure, offhand. I could start doing research, but I'm content to leave it to the pros, whom I'm confident will be posting as the day wears on.

Hilzoy: But, as I recall, there are many prisoners in Guantanamo Bay whose imprisonment has been declared illegal by a court: and there are torturers still walking free even though (I think) a court has now declared that torture is in fact illegal. (Indeed, I am unclear if torture in US prison camps has actually stopped, or if the US military have just got better at suppressing it.) It does not appear to have bothered anyone involved that a court has declared what they are doing is criminal.

Indeed, since I don't doubt the Republicans will retain power in both Houses this November, I can't see why it should worry anyone: why would someone care if the courts say what you are doing is illegal, when there is the assurance of political power to prevent investigation in the first instance, and to issue pardons if it gets as far as trial?

Not to decry this achievement: I agree that it's excellent that a court has ruled it's illegal. I just don't see what difference that will make.

The First Am argument is what gives the plaintiffs standing. Standing is the vulnerable and dispositive aspect of the plaintiffs' case.

If the 6th Cir. wants this to go away without reaching the Youngstown/FISA/inherent-authority-to-violate-the-law issues, that is how to do it. You can be very sure that is what the DoJ wants, which would wish to avoid having the real, core issues taken on appeal (and almost certainly all the way up to the Supremes), at all costs.

Eh? Standing is a First Amendment issue?

Ok, color me completely and totally lost. I thought that standing had more to do with whether the plaintiff or someone represented by the plaintiff was affected by the case in some specific way.

The First Amendment peg seems like lawyerly garbage, but I'll have to look deeper to see if my first impression is correct.

Ok, color me completely and totally lost.

Come to think of it, no additional color required.

Jes: Actually, I don't think there are prisoners whose detention has been ruled illegal at Guantanamo. There were the five Uighurs, but they've been released into Albania. The tribunals have been ruled illegal, as has the continued detention of citizens without charges, but no citizens are now being held without charges.

as has the continued detention of citizens without charges, but no citizens are now being held without charges.

one of those should be "non-citizens", no ?

on second thought. forget i said that.

Slart -
Re: standing, see this from the opinion:

This court agrees with Plaintiffs’ position that “standing here does not rest on the TSP’s ‘mere existence, without more.’” The Plaintiffs in this case are not claiming simply that the Defendants’ surveillance has “chilled” them from making international calls to sources and clients. Rather, they claim that Defendants’ surveillance has chilled their sources, clients, and potential witnesses from communicating with them. The alleged effect on Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients [ . . . ] Here, Plaintiffs are not asserting speculative allegations. Instead, the declarations asserted by Plaintiffs establish that they are suffering a present concrete injury in addition to a chill of their First Amendment rights.

The judge is not making the claim that merely eavesdropping creates a sufficiently definite harm to 1st Amendment speech rights, but rather that the specific plaintiffs have demonstrated actual professional detriment. The cases do hold that such detriments, if proven, will support standing. You can argue with that finding, or the sufficiency of the evidence in this case, to be sure, but it's not as simple (and unsupportable) as you make it out to be.

W/R/T the First Amendment issues, focus on the academic plaintiffs. The argument is that the academics' Constitutionally-protected ability to "speak," (i.e., write scholarly articles, etc.), is effectively cut off by the TSP because their sources dry up. The academics can still "speak," I suppose, but the government has circumscribed their ability to collect information about which to speak and therefore is violating the First Amendment.

Quote above from pp. 20-21 of the Opinion, by the way.

also, dbm, as I read the opinion, the judge was much more concerned with journalists and attorneys than academics. Some scholars are named, but the "drying up" of information is decribed in terms of "contacts" and "sources," terms mostly from the journalistic lexicon, and the court includes a discussion of the effect of the program on an attorney's representations that a conversation will be held confidential under the atty-client privilege (i.e. it completely subverts them).

st,

I was just using academics as an easy way to think about the First Amendment issues -- journalists make just as good an example, perhaps better. Attorneys do not make as good an example on this issue, simply because we don't tend to think of attorneys' advocacy in First Amendment terms, even though we can.

"Standing is a First Amendment issue?"

No. That's backwards. The First Amendment gives you an issue of standing.

Slart, might it not make more sense just to wait and see what the lawyers have to say about this?

The standing problem and the First Am: The NSA's warrantless surveillance program, in blatant violation of FISA, is conducted in secret. It is almost impossible for an individual who has actually been eavesdropped upon to learn of it, and that is the party who would have undisputed standing to sue. Their harm -- and palpable harm is usually necessary to create standing -- is manifest.

The plaintiffs in this case make overseas calls to Middle Eastern countries. Their standing argument, in part, is built on the fact that their speech has been chilled by the knowldege that the NSA is listening to overseas conversations without warants or any judicial oversight. The knowledge that the govt can listen willy nilly and with no judge deciding whether it is justifed -- or no way to learn whether the program is also tageted at, say, political opponents or journalists who are hostile to the administration -- is crimping what the plaintiffs are willing to say.

Further -- and I have not researched this -- there may be public policy legal doctrines that would allow standing in this case, given that it is a scenario in which persons who know they have been eavesdropped upon perversely cannot know it, by the very nature of the harm done. The law historically has modified its standing and other justiciability requirements to avoid perverse results.

Slart, might it not make more sense just to wait and see what the lawyers have to say about this?

That'd be all well and good, Gary, but I don't speak Lawyer. So I'm just going to ask questions in my own way, if that's ok with you.

"There were the five Uighurs, but they've been released into Albania."

Since no one here commented when I pointed out a followup in the last open thread, I'll note it again.

"...but no citizens are now being held without charges."

As I quoted, that's not true.

More than 100 prisoners at Guantánamo were initially found to be enemy combatants and then ruled eligible to be freed but were not because it was impracticable to return them to their home countries, and no other country would accept them.
Plus, mysteriously, the 12 other Uighurs in the same group as the freed ones are still held in Albania, even though their circumstances are reported to be identical to the freed ones.

What makes one subset of them innocent people, and the others "enemy combatants" seems to be a complete mystery.

FWIW, the 1st A argument is almost completely novel. Which isn't to say it's wrong, just that it goes much further than much of the previous discussion of the issue.

I agree with Balkin that the opinion is a mixed bag - the judge may be right or wrong on the 4th ammendment issue, but doesn't analyze it thoroughly enough (no distinction between "as applied" and "per se") which is doubly important since the 1A argument inherently rests on the 4A premise.

Further, the lack of resolution of the statutory argument is disappointing because it gets to the real nub of the issue in my book.

What is good is the demolition of the various 'state secrets' and 'inherent powers' notions.

dbm

W/R/T the First Amendment issues, focus on the academic plaintiffs. The argument is that the academics' Constitutionally-protected ability to "speak," (i.e., write scholarly articles, etc.), is effectively cut off by the TSP because their sources dry up. The academics can still "speak," I suppose, but the government has circumscribed their ability to collect information about which to speak and therefore is violating the First Amendment.

This is wholly unconvincing because it proves too much - by that rationale 'classification' violates the 1st Amendment with equal force (Though I suppose you could argue that illegally witholding that information violates the 1st in a roundabout way, I'm still not totally buying that as a Constitutional claim)

My understanding of 'standing' must be much worse than I thought. I honestly can't imagine that the standing issue would be very difficult, any citizen who was involved in a call that was listened to without a warrant would have standing from a Fourth Amendment perspective. And if you don't know for sure, but suspect that you were listened to that doesn't kill your case, that just means that the government would be subject to discovery. I really don't see the need to drag the First Amendment into it. There are at thousands of things that the government does which 'chills' journalists' sources. The idea that some sort of Constitutional privilege to have unchilled sources is enough to knock something down under the First Amendment seems very silly to me.

Pooh,

Your point is why I think the judge put the Fourth Amendment section before the First Amendment section, and why the First Amendment is so short and relies so much upon a relationship between the two amendments.

Sebastion: That's the crux of it. The Government won't allow discovery under the "State Secrets" provision -- discovery would run an undue risk of exposing state secrets.

So in short, unless someone can claim standing without access to discovery, no case can be brought.

As someone else noted, this is perverse. The government is doing someone harm (by their own admission) by eavesdropping on them without warrant and without FISA authorization. But because the government won't say who (nor allow anyone to find out) no one can sue to stop it.

Congress could technically investigate, but they are the ones that created FISA -- which is being violated -- and aren't there to regulate Constitutional infringments. It's part of the Courts job.

So we're at a place where either the courts are stuck. Loosening the standings requirement is really the lesser of "two evils". The other choice is to state that the State's ability to keep secrets is inferior to a US Citizen's constitutional protections.

Me? I think the courts should have struck down the Secrets argument (and perhaps this judge feels the full circuit will) and stated that the Executive has openly admitted to violating the law, freeing it's clients for full discovery of the targets involved to determine if their rights had been violated. I would have then tied that to a gag order and a security restriction on any information gained through discovery, with the caveat that any American citizen who was illegally spied upon should receive notice that they, in fact, were the target of such eavesdropping.

But that isn't happening. Instead, the judge is trying to get to the real point -- the Constitutionality of the program -- while doing as little damage to the Executive's ability to keep secrets as possible.

What is good is the demolition of the various 'state secrets' and 'inherent powers' notions.

Ok, now I'm going to have to go over and read Balkin, because from what I read of the opinion (roughly half, so far) the "state secrets" notion wasn't so much dispensed with in general as explicitly acknowledged as still being valid in other applications where the government hadn't already attempted to defend its actions and then dismissed as a factor in this case. Possibly this is what you meant, in which case disregard. Or possibly I've completely misunderstood the decision, in which case instruction would be most appreciated.

Gary, I think if you look at your article, and those from the time of the Uyghurs' release, you'll find that 5 men were transferred to Albania, and 12 remain in Guantanamo.

Sebastion, there may be many things that the government does that causes harm to a journalist, but they're only actionable if they are unlawful. As eavesdropping without a warrant (or lawful exception) would be. I haven't read the opinion yet, but I would guess that the First Amendment claim is important because the plaintiffs could make it in good faith -- whether or not their calls were actually listened to.

"Gary, I think if you look at your article, and those from the time of the Uyghurs' release, you'll find that 5 men were transferred to Albania, and 12 remain in Guantanamo."

Yeah, didn't I quote that in my post, write about it, and then write about it again here?

Oh, I see, my fingers accidentally typed "Albania," not "Guantanamo" in a single spot above. I guess you didn't read my actual post, though.

Of course I did. Back when you posted it. Which is why I knew it was a typo here.

Slarti

You have that right, I think. I wasn't trying to say the court invalidated "state secrets" rather that it was not applicable to this case (which is still, in light of history a resounding defeat for the administration.)

"Sebastion, there may be many things that the government does that causes harm to a journalist, but they're only actionable if they are unlawful."

That is a very odd distinction to make. If a government action violates the 1st Amendment rights guaranteed by the Constitution isn't that the very definition of unlawful?

That is a very odd distinction to make. If a government action violates the 1st Amendment rights guaranteed by the Constitution isn't that the very definition of unlawful?

This is all somewhat circular, but if I may, I think you are confusing curtailment of a right with a violation of that right. (Alternatively, you're applying so broad a definition of 'free speech/press' as to make any coercive law a nullity)

"(Alternatively, you're applying so broad a definition of 'free speech/press' as to make any coercive law a nullity)" Well that isn't me, that seems to be the court's circular approach.

Slarti (and others):

Re: First amendment: although the WaPo article refers to the decision as based on freedom of speech, that is not 100% accurate.

The First Amendment protects all of the following: speech, assembly and petitioning the government. What is involved here is government conduct that impairs all three, and there is plenty of past first amendment precedent involving improper government conduct that impacts the ability of citizens to associate and speak freely. Many cases have held government efforts to get membership lists infringes the right to asociation and speech since the lists can be used to intimidate the members, and discourage association and speech. One 1960 case cited in the decision specifically struck down wiretapping of a political organization for these first amendment reasons.

So the reasoning is not iffy. What it represents is that the courts long ago decided that illegal government conduct that also has the effect of inhibiting speech or membership in organizations also implicates the first amendment. For example, the government could pass a law the flatly prohibits speech favoring civil rights for blacks (an easy case), or it could pass a law that requires all members of the NAACP to register with the government, which then makes the lists available to the public (with elected officals opining that the NAACP is subversive). The second law does not seem to implicate the first amendment directly, but the courts have not allowed these clever end runs that have the effect of discouraging speech or assmebly while not regulating it directly. There is a whole body of law in this subject generally (time, place and manner doctrines regarduing free speech, as recently brought to light by litigation over Free Speech Zones).

It is clear that the First Amendment argument applies only because the Fourth Amendment was violated. Legal wiretapping is not otherwise barred because of the First Amendment.

The decision is simplistic concerning FISA and the constitutional questions. I can imagine why -- the district judge knows it will be appealed, and does not write an opus for self-glorification. Her legal reasoning has almost zero importance with regard to the appeal. Or maybe its because the issues are not that hard -- the Bush legal arguments simply stink (my own opinion). More energy was put into the standing and secrecy issues apparently because those are fact-based issues more within the province of the district judge.

The standing and secrecy decisions seem correct and not that controversial -- she is the second judge to reject the secrecy doctrine for the same reasons argued in the prior case. The actual details of the program are actually not that important for purposes of determining its legality under the Fouth Amendment, and existence and basic nature of the program is something publically acknowledged by the Bush administration.

No Sebastian, not every act of government that has an impact on a reporter is an actionable free speech violation. You can construct a long list of reasonable time, manner, place restrictions that are going to make the harm non-actionable. For example.

Ohmigawd, I think Charley was censored!

And yes, I'm not arguing for the judges view of the 1st amendment. I don't think it makes sense.

A comment so incisive yet comprehensive, one that would make a convert of every conservative, Republican, or libertarian who read it -- of course the government couldn't allow it to be published here. You can fight back, though: convert anyway, even without reading the comment. Stand up to the Man!

the district judge knows it will be appealed, and does not write an opus for self-glorification

Read with that in mind, the decision makes a great deal more sense. To me, it looked as if the decision practically demanded different arguments in an appeal. But IANAL, so it's hard for me to read where a judge/justice is coming from given that I'm almost entirely ignorant of lawyerese.

I agree, Hil, that God save this honorable court. But nothing will save Diggs Taylor from having her ruling overturned. Having read about a half dozen lawyers' blogs (even some lefty ones!) and ignoring the predictable Greenwald, there are gaping holes in her judicial reasoning. Balkin, several folks at Volokh, and a even a dKos diarist have issues with the NSA surveillance program, but conclude that Taylor's shoddy analysis will not stand.

Charles:

Having read about a half dozen lawyers' blogs (even some lefty ones!) and ignoring the predictable Greenwald, there are gaping holes in her judicial reasoning.

Believe if you must that there was "shoddy analysis," and label Greenwald's excellent analysis as "predictable" in order to summarily dismiss it without addressing its merits. Turn the whole thing into an alleged blog counting contest to support your opinion. But just know that you are resorting to your own predicatable mind-numbing partisanship rather than addressing the issues. Or else link us to someone who presents a clear legal analysis on why this judge was wrong. I have not seen it.

The whole right wing blogosphere is instead awash with ad hominem in response rather than a discussion of the issues. It's like the RedState post linked above -- "Judge Rules Defnding US Citizens Unconstitutional." That is frigging infantile.

p.s. Maybe you don't realize it, but Greenwald devoted his legal career to these types of issues. He also built a very successful First Amendment career right out of law school, something which is sometimes the premise of lawyer jokes since so many idealistic law school types aspire for such a thing but can never attain it. In short, he is the real deal.

The predictable Greenwald:

"This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law."

Purely as a procedural issue, I am reluctant to endorse as a "victory for the rule of law" opinions that have argumentative holes in several important places.

As we learn more, I suspect that the program has conflicts with FISA. The idea that the president can overrule FISA on an ongoing basis is clearly wrong. The Constitutional case is about the interaction between Congress and the President.

Muddying that with almost certainly wrong 1st Amendment arguments and probably wrong Fourth Amendment arguments is not really a victory for the rule of law because those types of doctrines tend to spin out of control when introduced like this.

(This is especially true with the idea that 'chilling' journalist contacts is a 1st Amendment violation. That is the kind of precedent that is just asking for trouble).

"As we learn more, I suspect that the program has conflicts with FISA."

I'm rather jaw-dropped at this statement, but, then, I've been on the story since 2005.

What was your first clue?

Seb: I take Greenwald's basic point to be: the ruling that the President has to obey the law, and cannot just invoke inherent powers to do whatever he feels like, is a victory for the rule of law. So is the application of (what I understand to be) basic principles of statutory construction like: given a specific statute that plainly covers a given case, and moreover makes provision for certain contingencies (e.g., wartime), and a subsequent very general statute that doesn't mention anything about the case at hand, but does grant some very general power whose application to the case at hand is not obvious, the specific governs the general.

I would be much more worried about the first amendment argument if there was no such thing as appeal ;)

Taylor's shoddy analysis will not stand.

Appellate courts don't affirm or reverse analyses, they affirm or reverse judgments. Someone who says 'right result, poorly written,' isn't telling anything about what's going to happen next.

Sebastian:

Muddying that with almost certainly wrong 1st Amendment arguments and probably wrong Fourth Amendment arguments is not really a victory for the rule of law...

Fourth Amendment argument -- warrantless wiretaps of US citizens violate the Fourth Amendment of the constitution. Uh, this is now basic Constitutional law with no serious counter-argment. Why is it "probably wrong"?

First Amendment argument -- it is entirely dependent on the Fourth Amendment violation. There is no independent violation if the wiretaps are done legally with a warrant. It is also based on over 40 years of cases that hold that illegal wiretapping chills the rights of speech and assembly, and therefore also violates the first amendment. This is hardly novel -- the precedent grew out of government illegal wiretapping of political organizations for the purpose of squelching dissent to the government. The decision has nothing to do with chilling jounalists (even thought the argument may have been made by the plaintiffs, it does not appear as a basis for the ruling).

So if anyone is muddying the waters, it is conservatives who criticize the ruling based on fictitious arguments about the basis for its reasoning and the prior precedent on the subject.

It seems it has become fashionable to diss the opinion because it was not a masterpiece matching the best of Supreme Court work product. See WaPo editorial and

Orin Kerr (who by the way is not a defender of the program as a whole) on the Fourth Amendment Issue.

"See WaPo editorial and"

And now dmbeaster has clearly been chilled. The seriousness of the threat is made clear.

I'm wondering about a couple of things:

1) If we have no way of knowing who's getting surveilled (or whatever you want to call it; wiretapped seems to be presumptuous), how do we know if NSA has complied with the court order?

2) Given that everyone and their baby is aware of this program by now, would it really compromise national security if NSA were to provide some general discussion of what they're doing? How they're doing it might be right out, but what might serve as a defense. Or, if Mona and Glenn Greenwald are correct, not.

It seems it has become fashionable to diss the opinion because it was not a masterpiece matching the best of Supreme Court work product. See WaPo editorial and Greenwald comment re same. This is baseless.

I have yet to see a contrary analysis that addresses the merits of the decision, as opposed to criticism of its form (like WaPo) or ad hominem about the result. It is not the job of District Court judges to write scholarly and detailed legal opinions regarding legal issues (as opposed to factual decisions, which is their primary function). Those opinions have no legal importance on appeal or in any other case. As Charley Carp said, the appellate court affirms or overturns a judgment -- not the analysis in support of it. The appellate court can affirm even if the lower court reasoning was demonstrably bad -- they make their own decision and reasoning (the legal buzz word is de novo review), which may or may not track the lower court opinion.

Appellate courts have anywhere from 3 to 9 (or more in some federal appeals) judges assigned to each case, with larger research staffs per judge than any one District Court judge. Their only job is to write opinions concerning cases on appeals. Dissing a District Court judge for not matching that level of work product is groundless.

No Gary (lol) -- just screwed up my post.

Another question, this time for personal edification.

I've heard so many people discuss that after-the-fact warrants may be obtained for wiretaps, etc that I take it as a given those can be had. So, you emplace wiretaps (or other devices or technologies) and listen. What if the court doesn't approve the warrant? Or doesn't it work exactly that way?

Sebastian:

Thanks for the Kerr link.

I read it -- not much there. His first major point: But Fourth Amendment reasonableness is satisfied by a warrant or an exception to the warrant requirement, and there are several possible exceptions to the warrant requirement that may apply. What are they (most involve what are known as "exigent circusmtances"; an emergency requiring immediate action justifies a warrantless search)? I have not heard of any nor am I aware that the government tried to justify the NSA program based on any.

His point seems to be that maybe one applies, and we don't know enough about the spying program to know for sure. Unfortunately for his argument, its the government's burden to show that all of their warrantless activity meets such an exception -- not the plaintiff's burden to overcome every possible exception that is not advanced by the government. His point seems to be that maybe some part of the NSA program could be legal, and we can't know for sure. Even if true, that does not support upholding all of it -- it puts the burden on the government to trim out the illegal portion and assert a program fully supported by such exceptions.

His second point: Also, identifying a reasonable expectation of privacy in communications is really quite complicated given new communications technologies.... Again, he seems to be saying that maybe some part of the eavesdroping is legal since it might involve insecure transmissions, and since we don't know for sure, the court cannot act. Again, this is groundless. To the extent the details are known, the activity involves illegal conduct. It cannot be saved because some additinoal unknown portion of it might still be legal. Again, the government can adjust the program so that it is legal -- it cannot intermix legal and illegal conduct and then defend it on the basis that the ruling potentially strikes down both legal and illegal conduct. No -- its the government's burden to restrict itself to only legal conduct.

Later he says: For example, Senator Specter's bill would take these issues away from the district court, so the choice might be to speak now or never. This is just flat wrong and suggests that Kerr is not thinking clearly. No Senate bill can authorize unconstitutional searches that violate the Fourth Amendment, nor can they deprive the federal court of jurisdictin to say so.

Slarti:

I've heard so many people discuss that after-the-fact warrants may be obtained for wiretaps, etc that I take it as a given those can be had. So, you emplace wiretaps (or other devices or technologies) and listen. What if the court doesn't approve the warrant? Or doesn't it work exactly that way?

Actually, FISA is the only law I have heard about that allows this novel warrant approach -- search first, warrant later. It requires a 72 hour after-the-fact application -- it is dealing with the exigent circumstances concept that permits immediate warrantless searches anyway. But since the wiretap remains in place, at some point it makes sense to require an application for a warrant. In other words, an emergency may have justified immediate action without a warrant, but not continued action without a warrant. The Congress decided that 72 hours was ample time.

In general, unapproved searches prevent use in court of the material obtained, and maybe exposes the government and its officials to civil liability. This is true even if the warrant process was followed, but the showing was legally insufficient (the initial judge goofed) or other misconduct taints the application (i.e, someone lied in making the application).

The real signficance of the warrant requirement is that it forces the government to put in writing the justification for the search for later scrutiny. Also, someone not directly involved in the investigation process serves as a check on potential overzealousness. Because of that, the investigators themselves curb their own potential misconduct since they know they have to please the court official who will issue the warrant, and also enshrine on paper their rationale for the search.

When the Warren court adoted the exclusionary rule as a remedy for fourth amendment violation, they had long experience with the world that existed before then -- Warren in particular given his experience as a DA. The police did what they wanted because there was no meaningful consequence to violating the fourth amendment.

Thanks, dmbeaster. Dunno if I missed something, but this part seemed odd:

In general, unapproved searches prevent use in court of the material obtained, and maybe exposes the government and its officials to civil liability.

I think the law-enforcement aspect of this is almost entirely irrelevant. I think that the purpose of these...I'm going to call them wiretaps (with the caveat that they're probably not, actually) is purely for gathering intel.

At least, I think that's what I would have as the purpose.

"It is not the job of District Court judges to write scholarly and detailed legal opinions regarding legal issues...."

And it's not, perhaps, their job to write decisions like this, but it should be. It should be.

"I have yet to see a contrary analysis that addresses the merits of the decision, as opposed to criticism of its form (like WaPo) or ad hominem about the result. It is not the job of District Court judges to write scholarly and detailed legal opinions regarding legal issues (as opposed to factual decisions, which is their primary function). "

You really should look around on the Volokh site. They have 8 or 9 posts on it and many good links to legal analysis.

Orin Kerr is a libertarian who is very skeptical about the NSA program and who has written the casebook on the interface between computers and the law. I'm not appealing to authority in the sense that you should automatically trust him when he says that it isn't clear the 4th Amendment does not apply, but that you should look at his discussion seriously. (Also note that the post I linked isn't his only post on the topic). I would suggest a google search limited to www.orinkerr.com. He has numerous posts that are on or around the topic, dating back to the original revelations.

Sebastian:

Thanks again for the Volokh link - I did go there and read the many posts comments, as well as posting one myself. Also, Greenwald and Kerr have several interesting exchanges on the subject in the comments.

Gary -- LOL again. There are collections of citations to particularly witty opinions such as this one -- some much more side-splitting.

I've followed Prof. Kerr's writings on this issue pretty closely from the outset, and have not yet been convinced that the NSA program is not a Fourth Amendment violation. I should probably take a look at what the government filed in this case by way of Fourth Amendment argument . . .

I should probably take a look at what the government filed in this case by way of Fourth Amendment argument . . .

There is no Fourth Amendment, that is not the Fourth Amendment you're looking for, you can go about your business, move along.

Slarti:

I think the law-enforcement aspect of this is almost entirely irrelevant.

As a practical matter, it may be. I think this is part of the reason why the NSA scandal has not struck a deep chord yet -- it is not yet tied to any politically serious bad deed; only the theoretical possibility (which should be enough, but sigh, sometimes is not).

If the government is spying and has no intention to use the information for criminal purposes, it only involves the violation of rights and potential civil or political consequences. I think that there have therefore been frequent abuses of such powers over our history. Such as a large amount of Hoover's alleged snooping conduct at the FBI (even after it became plaintly illegal) -- he reportedly used it for political advantage without intending to use illegally obtained info in criminal cases (or washing the taint so thoroughly that no one could trace the bust back to illegal snooping). Such as LBJ eavesdropping on Nixon in 1968 and finding out about the back door negotiations regarding Viet Nam, but only using the information in private conversations with Nixon to tell him to back off. (Yeah, only a Hitchens book review, but i believe it summarizes the accepted history correctly).

In plain words, Richard Nixon's direct subordinates went to the South Vietnamese military junta, in the waning days of the Humphrey-Nixon election contest, and told them to sabotage the Paris peace talks and thus the main Humphrey peace plank. Do this, Saigon was told, and the incoming Republican Administration will smile on your cause. President Thieu, thus advised by Henry Kissinger and others, pulled out of the negotiations a few days before Americans went to the polls. Johnson's White House, by legally dubious methods of bugging, picked up this treasonous traffic. It did not dare make it public, because that would have been to admit to electronic eavesdropping, but it did tell the Nixon people that they had been rumbled. And Johnson warned Nixon several years later, from his Texas ranch, that he personally would release the crucial evidence if Nixon tried to justify his own crimes by reference to Democratic ones.

Or as some have suggested, Bolton looking at intercepts to obtain politically useful information.

The FISA court has reportedly been concerned that applications for warrants presented to the FISA court are based on information previously obtained without lawful warrants. Legally, such applications should be rejected. For obvious reasons, it makes no sense to uphold the legality of searches conducted with warrants based on information obtained in violation of warrant requirements. But again, the only direct consequence of violations is tainting possible criminal prosecutions.

"Gary -- LOL again. There are collections of citations to particularly witty opinions such as this one -- some much more side-splitting."

Pointers welcome. I thought that one was fairly hilarious.

Take a look, Ugh, at the government's unclassified reply brief. It does not assert that the program complies with the Fourth Amendment, ie fit into some exception. Just that you can't answer the question whether it does without looking at the secret evidence. There's a redaction at a key point (on p. 24) and maybe it was in there that the government said -- we're in an exception, here's what it is, and here's the evidence -- and if they did so, and Judge Taylor thought it unconvincing, she could say that the evidence provided to her in camera was unpersuasive, but you wouldn't expect to engage in any kind of public analysis on the point.

Here's what precedes the redaction:

(U) Plaintiffs take the same absolute position in arguing that their Fourth Amendment claim requires no facts to resolve. They argue that “warrantless wiretapping is per se unreasonable” under the Fourth Amendment. That, again, is not the law. Numerous courts have held otherwise, and in 2003 the FISA Court of Review itself stated that “it took for granted” that the President has his own authority in this area. See In re Sealed Case, 310 F.3d at 742. Thus, the issue is not whether warrantless wiretapping for foreign intelligence purposes is ever permissible but in what circumstances. In other Fourth Amendment contexts, the need for a warrant turns on the particular exigencies of the situation. See Defs. Mem. at 34. Indeed, in a case Plaintiffs themselves cited, Warden v. Hayden, 387 U.S. 294, 298-300 (1967), the Supreme Court held that exigent circumstances made it “imperative” that the police search a premises without a warrant, holding that the Fourth Amendment does not require law enforcement to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. See id. That, of course, is a fact question that turns on the exigency of the situation and whether obtaining a warrant in particular circumstances is impractical and would undermine vital law enforcement efforts.

(U) Once again, Plaintiffs’ argument suggests, inadvertently, that facts are at issue as to this claim. They state that the government “must prove that the surveillance fits into an established exception to the warrant requirement . . . .” See Pls. Opp. at 29. Defendants agree that this is what would be at issue if the case proceeded. But this is an issue of proof, not purely a legal question, as Plaintiffs contend. See id. Proof is a matter of evidence, and the evidence that would demonstrate that a warrant requirement would be impractical to detect the movements of al Qaeda, in the face of their tactics and in response to the exigent threat posed, cannot be placed upon the public record.


Then there is a redaction. It's exactly where you'd expect a merits Fourth Amendment argument, if the government made one. If it did, then the people who are complaining about how she didn't publicly make a big Fourth Amendment analysis owe an apology. It the government didn't make a Fourth Amendment merits argument, then it deserved to lose, and might not be able to raise it at the Sixth Circuit.

dm, violations of FISA are crimes, and there's a civil liability provision. There's more saction available here than Bivens and the exclusion rule.

"(Yeah, only a Hitchens book review, but i believe it summarizes the accepted history correctly)."

FWIW, I would say so, as well. (Not rereading the full Hitchens piece at the moment, though I've read it before; not feeling so well, actually; but the Kissinger-talks-to-Thieu thing has been long established.)

CharleyC - was that really aimed at me for my paraphrase of Obi Wan in Mos Eisley?

Though I do like this bit:

the Fourth Amendment does not require law enforcement to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.

Cause its constantly grave these days, I suppose.

Charley:

Thanks for the point about FISA, which I overlooked. In fact, there is a general federal law that I should have mentioned, Electronic Communications Privacy Act of 2000 (ECPA) 18 USC 2510, et seq., which creates criminal and civil liability for improper electronic eavesdropping. How it might apply to the NSA situation or government action in general, I do not know, but it is probably also relevant as a consequence of illegal government snooping.

dm, I've tried to avoid Volokh generally, but this was a topic that was not possible to resist. Glad to see you there as well -- always useful to have someone else who actually appears before trial level judges to help the eggheads (and I mean that in the nicest possible way) appreciate how the law actually works. It's a sausage factory down at the courthouse, too, folks. (I have a silly little note on this point on my little blog today . . .)

Sorry to post endlesly about this, but Charley Carp gets 100% credit for raising what is probably the most relevant point here!

Trial judges tend to respond to only those arguments you raise to them -- they rarely go outside the record to address additional points not briefed by the parties. Theoretically, they are supposed to do so, but as a practical matter, they cannot be expected to do so -- they don't have the staff to do extensive independent research.

If the government's briefing did not raise various arguments which commentators now argue should have been addressed in the trial judge's opinion, it is entirely proper that the opinion does not analyze them. If the government raised the points in only a simplistic manner such that they were readily refuted as posed, then it is entirely proper that the opinion does so in a simplistic perfunctory manner.

It appears that the government relied heavily on its procedural arguments regarding standing and state secrets, and much less so on substantive arguments. Thus, is it fair to assume that the opinion is heavily weighted to those issues, and addresses the substantive issues more briefly because that is also how the government argued them in its papers?

I have not had a chance to read the government papers (are they all available on-line? -- they would normally be on PACER, but are they blocked in this case? Charley only refers to be able to see the Reply papers). But before anyone gets hysterical about the content of the opinion, they better examine the government's papers to see if the issues they believe were overlooked in the opinion were even raised in the first instance by the government.

No, I only read the reply brief, because I knew that's where they'd make their real argument.

It's all on PACER. The 'U' at the beginning of each paragraph indicates that the paragraph in unclassified.

I downloaded the government's opening brief, and can email it to anyone who wants -- its a 59 page pdf. Drop me a line.

A quick peruse shows, as expected, the same strategic as the reply.

Charley:

Your observation about the opening brief confirms what Greenwald also said to Kerr at Volokh in his last comment:

But as JustAnObserver can document, one important thing to note here is that the DoJ was contemptuous of the very idea that this judge had the right to rule on the substance of the claims at all, and thus barely bothered to address any of the substance.

It really stinks to see the conservatives now belly-aching about the lack of scholarly content in the opinion when the trial judge was not presented with anything approaching a scholarly defense of the government's position.

Folks -- the arrogance of the Bush DoJ is the reason why the opinion is short and perfunctory. The same arrogance now becomes the basis for belittling the opinion because it did not refute every theoretical argument, arguments which the Bush DoJ did not bother to present.

I made that mistake once, not taking a challenge seriously. The guy making the challenge was a noted authority in my field, but he was dead wrong, and I furthermore had evidence to support that he was dead wrong. My response, in hindsight, should have been treatise quality, but I didn't feel I had the time or resources to actually put together such a thing (which, in my defense, was pretty much the truth), so I lost the dispute. The result was that his opinion swayed the customer, and as a result the customer dictated that we discard our original approach. This, despite the fact that we had literally thousands of flight-hours of data to validate it.

This, in my opinion, is the downside of authority: that the assertion of someone whose reputation is vast can occasionally be both wrong and taken at face value because of the sheer quantity of time and effort it would take for someone as relatively obscure as myself to rebut it.

I'm not making any statements about which side is dead wrong in the NSA case, just to be clear.

Slart, its even worse here. The government had time and opportunity to make its case (assuming it has one) but told the customer 'I don't have to convince you of anything; you are required to take on faith that I have data which shows that my approach is better.'

You're not going to sell a lot of widgets that way.

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