Warrantless Wiretapping, Part V

Maxed-Out-Mama observes:

The 6th Circuit knocked down the somewhat hysterical decision about wiretap surveillance by The Most Honorable Defender of the Innocent, Upholder of the Righteous, Supreme Recognizer of the Essence of the Law, The Most Supremely Just Anna Diggs Taylor by ruling that the suing parties lacked standing due to the minor technical difficulty that not one of them actually had any evidence of having been monitored. It was 2-1, and everyone thinks it's going back for another round. Volokh. I am hoping Carl will post on this one later. Ann Althouse did post, and has links to her earlier comments. The Circuit's opinion is here (pdf, 65 pgs). No word on what Taylor is thinking now, but here is her original opinion.I wonder if the usual sides are going to adjust their positions on this one? After all, the doctor's plot makes it clear why monitoring internet and other communications networks is effective and necessary. Right now the program is being run under the auspices of the special FISA court. I do not think they will be turning down many requests.

I always obey Mama, so here's my take on warrantless wiretaps under Friday's Sixth Circuit ruling in the wonderfully captioned case of American Civil Liberties Union v. National Security Agency, No. 06-2095/2140 (6th Cir. July 6, 2007):

• Overview: The three judge court issued three opinions: Judge Alice Batchelder and Julia Gibbons reversed the district court and dismissed the case. Batchelder's opinion addresses standing under the Constitution and various statutes; Judge Gibbons concurred in the judgment but -- given the absence of standing -- refused to consider statutory claims. Judge Ronald Gilman dissented, arguing both that plaintiffs had standing and that warrantless wiretaps under the Terrorist Surveillance Program (TSP) were unconstitutional. Because of the split, Judge Gibbons' opinion ultimately is controlling.



• The District Court's Ruling Had to Go: Powerline's John Hinderaker called it a "horrendously-argued opinion." That's mild, compared to what I've said:

  Judge Taylor's opinion might be the worst example of liberal jurisprudence ever. She decided plaintiffs had standing because the unknown but possible NSA interception could "chill" speech (at 20-23). Yet were the wiretap obtained under FISA, which the Judge acknowledges is Constitutional (at 26-28), the warrant still would be secret, subjecting callers on potentially tapped phones to the identical alleged chilling effect. (Standing requires that the Court be able to redress the claimed injury should plaintiffs prevail.) She then ignores footnote 8 in Keith, allowing her wrongly to equate 'domestic' wiretapping with intercepting transmissions 'by or to U.S. persons' (at 27-28)--a fundamental, but common, error. Further, the Judge neither addresses nor disputes (see page 42) the fact that every prior ruling upheld Executive branch warrantless wiretapping of foreign national intelligence information -- she relies instead on a single concurring opinion (at 42) without referencing the FISA appellate court itself. In re Sealed Case, 310 F.3d 717, 742 [slip op. at 48] (Foreign Intel. Surv. Ct. of Rev. 2002). And she somehow reads (at 38-39) the Hamdi decision -- which found detaining combatants "so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force'" -- to oblige the Constitutional procedure appropriate to criminals for spies of a foreign power, despite the litany of cases to the contrary.

  In a NY Times Op-Ed, law Professor Ann Althouse said Taylor's ruling epitomized the problem with judicial activism:

  If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.
  
  There’s irony for you.

  Judge Taylor, by the way, was appointed by Carter.



• Standing--What and Why?: Article III, Section 2 of the Constitution limits the Judiciary to hearing "cases" or "controversies." This means Federal Courts can't issue "advisory opinions". Rather, as summarized Judge Batchelder (slip op. at 11):

  "The irreducible constitutional minimum of standing contains three requirements": "[1] injury in fact, [2] causation, and [3] redressability." Steel Co., 523 U.S. at 102-03 (citations and footnotes omitted). "Injury in fact" is a harm suffered by the plaintiff that is "concrete and actual or imminent, not conjectural or hypothetical." Id. at 103 (quotation marks omitted) (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). "Causation" is "a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant." Id. (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). "Redressability" is "a likelihood that the requested relief will redress the alleged injury." Id. (citing Warth, 422 U.S. at 505). This "irreducible constitutional minimum" applies to every claim sought to be litigated in federal court.

  Because the doctrine requires a plaintiff to point to injury defendant did, standing analysis often slides into the merits of a case--if, for example, without injury, a party would lack standing to sue, but -- were standing somehow ignored (it can't even be waived, and the few exceptions aren't relevant here) -- also would lose.



• Batchelder and Gibbons on Standing: No plaintiff in the case was wiretapped by the NSA. Instead, they claimed injury, and thus standing, because the existence of the TSP acted to "chill" their speech, making them less willing to call, or communicate uninhibitedly with, overseas contacts for fear of being tapped (see slip op. at 7, 13-17 (Batchelder), 37-38 (Gibbons)). But this flunks all three standing prongs:
  
  
  1. Plaintiffs were never tapped nor threatened with being tapped. Judge Batchelder (slip op. at 13) dismisses this as "purely speculative fears." For Judge Gibbons, the issue is straightforward (slip op. at 37): "plaintiffs fear being subject to a government policy of surveillance and have alleged that they and those with whom they communicate have ceased their normal communication. If they instead continued their normal activities, they would still be fearful, but whether they would actually be subject to surveillance is purely speculative."
  
  
  
  2. Any "chill" of speech -- either by plaintiffs or by their foreign correspondents -- was caused by the revelation (in the NY Times) of the existence of taps without a warrant, not by the government taps themselves. Says Batchelder (slip op. at 19), "it is not clear whether the chill can fairly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant." Dissenting Judge Gilman argues (slip op. at 50) that, without the TSP, plaintiffs "would be protected by FISA’s minimization procedures and would have no reason to cease telephone or email communication with their international clients and contacts." But as Matthew Franck and Ann Althouse note, and Judge Batchelder argues (slip op. at 19), any apprehension is grounded on broader issues:

     The plaintiffs have neither asserted nor proven any basis upon which to justifiably conclude that the mere absence of a warrant -- rather than some other reason, such as the prosecution of the War on Terror, in general, or the NSA’s targeting of communications involving suspected al Qaeda terrorists, affiliates, and supporters, in particular -- is the cause of the plaintiffs’ (and their overseas contacts’) reluctance to communicate by telephone or email.

     See also slip op. at 25 ("the plaintiffs have no evidence to support a conclusion that the President’s authorization of the TSP would have any more effect on the parties’ respective apprehensions than would the broader circumstances of the War on Terror and heightened national security.").
  
  
  
  3. As I argued, courts can't prevent the alleged harm because wiretaps -- whether warrantless or not -- are secret. Batchelder agrees (slip op. at 22), "as a practical matter, the mere issuance of a warrant would not alleviate either the plaintiffs’ or the contacts’ fears of interception, and consequently, would not redress the alleged injury." So even without the TSP, conversations could be intercepted and speech, in theory, chilled--leaving the court without a remedy.


• Gilman's view: He would have found the TAP unconstitutional. Why: Because (slip op. at 58):

  Congress has thus unequivocally declared that FISA and Title III are the exclusive means by which electronic surveillance is permitted. No other authorization can comply with the law. Congress further emphasized this point by criminalizing the undertaking of electronic surveillance.

  Unlike District Judge Taylor, at least Gilman did some research (Gilman conspicously declined to address Taylor's ruling). But he missed a few precedents--it is black letter law that Congress can't prohibit what the Constitution permits. And the Administration grounded TAP on the President's Article II, Section II, clause 1 power as Commander in Chief. Gilman's response (slip op. at 63) is that all the court decisions on FISA upheld the Act. This utterly reverses the issue--the question is not whether FISA is constitutional, the question is whether the President possesses authority outside of FISA. On that subject, as Gilman doubtless is aware, the Supreme Court deliberately left the question open. See United States v. United States District Court, 407 U.S. 297, 308 (1972) ("the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."); id. at 321-22 ("this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."). Further, Gilman curiously fails to acknowledge:

  The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

  In re Sealed Case, 310, F3d. 717, 742 [slip op. at 48] (Foreign Intel. Surv. Ct. of Rev. 2002).



• Fear and Loathing: Predictably, lefties are incensed: Glenn Greenwald goes ape at Salon:

  The result, on its face, is grotesquely unfair, outrageously so.
  
  After all, the whole point of FISA is to make it illegal for the government to spy on us in secret. And yet spying on us in secret is exactly what the Bush administration did; that is the crux of the lawbreaking here. But precisely because it spied on Americans in secret rather than with judicial oversight, nobody knows whose conversations they surveilled and we cannot find out.
  
  It is because of this illegal behavior that the plaintiffs are unable to show that they were subjected to this surveillance. To dismiss the case on the ground that the plaintiffs are unable to make this showing, then, is to reward the Bush administration with the ultimate prize (immunity from judicial review) for having broken the law.

  But this both assumes the conclusion (that the TSP is illegal--it isn't) and mischaracterizes FISA, which does not mandate prior notification of those intercepted. And Greenwald -- like many others -- assumes oversight by the Judiciary is both Constitutionally required and the sole effective check on the President and Congress. It's not--many issues regarding foreign relations and disputes between the Executive and the legislature are political questions. Such cases are beyond the competence of courts--but squarely in our domain every other November. If you don't like the TSP, make Nancy Pelosi President next year. It's called popular sovereignty, and it's the best check against tyranny. As National Review's Rich Lowry argues in a different context, "except for the most blatant crimes, the political arena is the best forum for politically controversial charges of wrongdoing."
  
  Booman thinks "the erosion of our rights continues." What right is that--to plot with Al Qaeda? To get a telegram warning of an impending wiretap? As Rhymes with Right reminds, there are over a dozen circumstances where -- should the Fourth Amendment apply -- warrants aren't required. Don't worry, Chris Meserole: If you're not planning terror, you're not likely to be tapped; as Macsmind says, plotting's not private.
  
  Dusty of the LeftWingNut blog says, "Our civil rights were tossed in the crapper because of a friggin technicality? WTF is this, Hitler's Germany?" For progressives, comparisons to Hitler travel faster than light. Indeed, I thought lefties love procedural "technicalities" that give the guilty "get out of jail free" cards--see, for example, the "Miranda" rule or the failure properly to charge a combatant detainee. And, contrary to Steve Benen, standing isn't some "Catch 22"--it's Constitutional.

Conclusion: Like Maxed-Out-Mama, Jonathan Adler on Volokh says, "I can virtually guarantee that this is not the last we have heard of this case." I'm not so sure the Supreme Court will review--but was surprised by their recent decision to hear challenges to the Military Commissions Act of 2006. In view of the fact that the Administration abandoned the TSP and began seeking FISA warrants, see slip op. at 57 (Gilman, J.), this case should be moot. Especially because on January 10, 2007, "a Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization." Letter from Att’y Gen. Alberto Gonzales to Chair. of the Comm. on the Judiciary Patrick Leahy (Jan. 17, 2007), quoted in slip op. at 4 n.4. That said, the Administration previously, and persuasively, argued that the probable cause standard was overly confining for detecting and preventing terrorism. So I hope Maxed-Out-Mama is correct in assuming the FISA court gets it: "I do not think they will be turning down many requests."

Should the Supremes take the case, I agree with Althouse: "I would expect the Supreme Court to agree with Batchelder and Gibbons." And when they do, we won't be speaking German. But perhaps Al Qaeda will.

Anyway, for the moment, chicks on the bench -- I mean, female Your Honors (Simpsons reference) -- rule.

More:

M_O_M cites the DU thread on the case, containing these two useful idiot comments:

36. [ixion] That is now the third ruling I've heard that used the 'standing' excuse that seems to be the way they intend to do it. Unless you happen to be a republican, you have NO "standing".

37. [EVDebs] The 4th Amendment requires no 'standing' if violated. . . These judges were looking for loopholes and not reading the law itself. I suspect they're Federalist Society cretins. Read this from wikipedia re the Fourth Amendment's requirements, http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_Un...

Uh, ixion, standing isn't an excuse--it's a Constitutional requirement, for both Rs and Ds. And Debs, I'd advise against citing Wikipedia. But if you must, read the article first--it says only that criminal defendants have standing to challenge some Fourth Amendment violations. Plaintiffs in this case were not charged with any crime; they were challenging a practice (the TSP) that had never been applied to them and whose secrecy no court could change. So no standing.

Lefties are indignant when conservatives presume most criminal defendants are guilty. Still they constantly claim illegality: the Iraq invasion, the treatment of Gitmo detainees, the use of white phosphorus, etc. Yet, in debate, it becomes clear they're "not reading the law itself" and never checked the facts. How is that progressive?