Playing Taps for Wiretaps?
In a big decision, Judge Anna Diggs Taylor in Detroit has declared the Bush administration's warrantless wiretapping scheme not just illegal, but unconstitutional. She argues that the president has improperly assumed the power to violate not only federal law (FISA) regarding wiretapping, but also the 1st and 4th amendments to the Constitution. There are lots of interesting issues here, and the right-wing wolves are already swarming. My instincts tell me that the 4th amendment claims are probably pretty serious, but the 1st amendment free speech issues are probably less so. There are also apparently issues of "standing" involved, since the plaintiffs could not say for sure that they had been wiretapped--only potentially so, given their calling patterns.
There's some commentary here and here. Then again, we have a con law expert in the house, someone who knows a few things about the 6th Circuit to which this case will be appealed. What say, ye, #3?
[Update: there's already some heat on the comments page. But just to make things interesting, here's a argument from Publius at Legal Fiction, whose liberal credentials are pretty solid, that this is an atrocious decision on purely procedural grounds. Since I'm no lawyer, I'll withhold judgment. Make sure to check out the ensuing discussion on Publius's comment page.
posted by tenaciousmcd @ 12:25 PM
8 Comments:
Before filing suit, I’m sure the ACLU shopped around for a sympathetic judge. The outcome was not surprise.
Normally, you have to prove that you were hurt somehow before the judge rules in your favor. None of the people who filed suit claim that their own phones were actually tapped, therefore no harm was done to them. This is one of those cases were the judge is making new law and not following the law as written.
Just like the Newdow case, SCOTUS should throw this one out because the plaintiffs had no grounds to file suit.
If Jason were to read the 44 page opinion of judge Diggs' ruling instead of apparently listening to the endless expert chatter of the cable news or radio pundits, he would see how ridiculous his post is. I guess he's no worse than the WaPo, which this morning ripped the judge for her lack of a "scholarly" opinion without offering any reasoned objections to any of her legal arguments (arguments that she backed up with several footnotes, which in and of themselves seem to impress the readers of Ann Coulter). But then, blanket assertions without any legal reasoning are just so much faster and easier, and if the truth be told, more persuasive for weak minds.
Yo, Jay. Rather than just making some magisterial, or rather cablesterial, proclamations, how about quoting from the judge's opinion, which is backed up by references to numerous laws, and then telling us exactly how she "is making new law and not following the law as written"?
Interesting discussion by Publius, but alas, he too admits up front he really hasn't had time to read judge D-T's opinion -- he's just winging it on a blog. Any real critique, so it seems to me, would take some thought and time and should go something like: Judge D-T writes "blah, blah, blah" and cites several precedents (blah, blah, blah). But those precedents were for cases of type x in situations of type w, and the NSA case is type y in situations of type z." Publius simply doesn't do this. And so what he writes is just a quick blog impression. Maybe he's exposed some of the terms of the debate that will ensue, but his conclusions are clearly premature. And let's face it, it takes some time to digest a 44 page opinion.
Paul, I think Publius's admission is that he hasn't had time to fully scour the precedents and amicus briefs, not that he hasn't read the opinion. He's got a later update based on a closer read which is even more negative on the opinion. The NYT also had an article yesterday in which various liberal con law eminences (Sunstein, etc.) criticized the decision but suggested that higher courts would still find against Bush, just on different grounds.
There's some good debate on that blog about the core issue: whather or not this is proper use of a pre-discovery summary judgment for the plaintiff. So I don't know that the issue is settled by Publius's critique. But it certainly does make the opinion look a bit hasty and political.
TMcd,
On Publius' first post the first sentence reads, "I’ve been really busy at work, and I haven’t had that much time to look over the NSA opinion..." (my bold). But based on a lack of time and not really having read the actual opinion closely, he then offers a critique. This strikes me as methodologically perilous in the least.
In his updated post, he writes that he now had time (24 hours minus work, sleep, eating) to look at some of the briefs (again, nothing about the opinion) and presumably based on these briefs he judges the opinion is even worse than his first post. In this second act of analysis he doesn't take a single quote from any of these briefs to let us know how he came to this conclusion either, so once again we're supposed to just rely on his word. As far as I can tell from both posts, he makes only one full-sentence quote from the opinion itself:
"Indeed, the Court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP [i.e., the NSA program]."
And he condemns the judge for her behavior in a more egregious jump to a conclusion than the one he accuses the judge of. How could he possibly know what evidence the judge read and whether or not her conclusion was unreasonable? Based on the Bush adminstration's other use of bogus or laughable evidence, are we to assume the judge acted without cause?
For bejesus' sake, if you're going to claim how awful an opinion is, and further you claim some sort of legal expertise, then you damn well better argue with the actual opinion and the judges' stated legal supports of that opinion, not just offer general critiques of general arguments like an op-ed piece. Publius' instincts may end up being correct, but it falls well short of a meaty analysis of the actual opinion, and his methodology is pure crap. It's almost all doxa and no pistis.
O yeah, I forgot to say that Publius really took issue with the Summary Judgment as being premature.
He writes:
The monkey wrench here is a concept called “summary judgment,” which can technically happen at any stage. It’s the resolution of a legal issue where no (material) facts are in dispute. For instance, let’s say that Wal-Mart and I both say (or stipulate), “Yes, all parties admit that Wal-Mart locked its janitors in. We simply disagree about the legality of the lock-in, Your Honor.” Because there are no facts in dispute, the Court can decide whether that action legally violates the “don’t be evil” statute on summary judgment.
Summary judgment, however, is never appropriate where there are ANY material facts in dispute. It doesn’t matter how lopsided the two sides’ arguments may be. For instance, let’s say Wal-Mart gets caught on film locking janitors in and giving high-fives after they do it. If they deny it in court (those were, like, other kids), that’s a factual issue and summary judgment is inappropriate. In short, if there is any factual dispute, summary judgment is not appropriate. And unless it’s a frivolous case, courts are reluctant to grant summary judgment at the pleading stage for the simple reason that no one knows any facts yet (because discovery - Stage 2 - hasn’t happened).
That’s exactly what happened here though. The judge granted the ACLU (the plaintiff) summary judgment on, well, pretty much everything (the 1st Amendment claim, the 4th Amendment claim, etc.) at the pleading stage.
Look, however, at the judge's opinion, page 3:
"Defendants have moved to dismiss this lawsuit, or in the alternative for Summary Judgment, on the basis of the state secrets evidentiary privilege and Plaintiff's lack of standing."
Unless I'm reading too much into this paragraph, and I don't think I am, it was the Defendants, not the Plaintiffs who asked for a Summary Judgment if the case was not dismissed, and so any sort of analysis on whether or not the judge was wrong to give a Summary Judgment should at least address the fact that in this particular case the judge was wrong even when the Defendants asked for a SJ should the case not be dismissed. At any rate, the claim the judge "granted" the ACLU the SJ appears to misleading and factually wrong.
Paul, I don't think there's necesarily a symmetry here between plaintiff SJ and defense SJ. If the defense asks for SJ, they're essentially saying this: even IF the facts are what the plaintiffs say they are, there's no sustainable legal cause for a suit, so you should dismiss. But if the judge finds against this claim, the result is not a SJ awarding the case to plaintiff, it is a trial in which facts are presented. In other words, the plaintiff needs both law and facts to win, whereas defense needs only one or the other. So a pre-discovery SJ for defense would make sense, while one for the plaintiff would not, since the plaintiff, to win, needs to establish facts that can only result from the suit actualy being tried. The one exception to this is the case where defense stipulates ALL the contested facts that might arise in trial, but that appears not to be the case here.
Well I'm sure the higher courts will eventually take a judicious and careful look at the ruling with all the requisite evidence. For a bit of levity on the subject, check out this cartoon.
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