Yesterday's ruling on NSA warrantless eavesdropping

The true scandal here is that the Bush administration continues to obstruct any and all efforts to determine if its conduct was illegal.

Published July 7, 2007 10:30AM (EDT)

The Sixth Circuit Court of Appeals yesterday, by a 2-1 decision, vacated last August's Order from District Court Judge Anna Diggs Taylor which enjoined the Bush administration from eavesdropping without warrants. Judge Taylor had found that the President's NSA warrantless eavesdropping program violates both the Constitution as well as federal law (FISA).

Yesterday's ruling (.pdf) had absolutely nothing to do with the merits of the case -- i.e., whether the NSA program is illegal or not -- but instead rested only on the narrow, technical (though important) issue of whether the particular plaintiffs in this case are entitled to sue over the warrantless eavesdropping program (two of the three judges concluded that they are not).

While the two judges in the majority did not rule on the legality of the program, the third judge -- Judge Gilman -- agreed with Judge Taylor's finding that the President's program violated FISA. He thus wrote that he "would affirm its judgment," and he rejected the administration's standard two defenses for that behavior (i.e., (1) that AUMF implicitly authorized FISA violations and (2) the President has "inherent authority" under Article II to eavesdrop with no warrants). In fact, just as was true for Judge Taylor, Judge Gilman found that while the "standing" issue was a close one, the actual merits -- i.e., whether the President broke the law -- was not close:

The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier . . . . [The administration's] AUMF and inherent-authority arguments are weak in light of existing precedent and statutory construction.

The two judges in the majority did not dispute any of this. Instead, they ruled, roughly speaking, that because the program was conducted in secret, the plaintiffs cannot prove that they were subjected to warrantless eavesdropping and thus lack "standing" to contest the legality of the NSA program.

Several observations about the decision:

(1) Any journalist or Bush follower claiming that this decision constitutes vindication for warrantless eavesdropping -- or that it constitutes a repudiation of Judge Taylor's finding that the President broke the law and violated the Constitution -- is deeply confused and/or engaged in a campaign of deceit. Even worse than that, anyone celebrating this result is essentially celebrating a situation where our government leaders are able to act in secret -- even when the law makes it illegal to do so -- and as a result of this secrecy, block courts from ruling on whether they broke the law.

Why would anyone -- including those who think the NSA program is legal -- want to empower our government officials to act free of judicial review of whether they acted illegally? If those who claim to believe that the President acted legally are telling the truth, wouldn't they desire a judicial ruling on these questions?

As noted, the majority opinion here did not make a single comment suggesting they believe Judge Taylor's ruling on the merits was wrong, nor did they suggest that warrantless eavesdropping is legal. To the extent they commented on those issues at all, the majority opinion observed that the appeal "presents a number of serious issues," while the other Judge in the majority (Gibbons) described in the first paragraph of her concurring opinion the "complexity" of the "merits issues." Not a word in either of those two opinions constitutes a repudiation of the finding by Judge Taylor that the President broke the law and violated the Constitution.

(2) Unlike the two judges in the majority, the dissenting judge (Gilman) did issue findings regarding the illegality of the NSA program once he found that the plaintiffs had standing to sue. And he decided conclusively that the NSA program violates FISA and that the administration's two legal excuses are invalid. That means that the only two federal judges ever to rule on the legality of the NSA warrantless eavesdropping program -- Judge Taylor and now Judge Gilman -- have both decisively concluded that the President's warrantless eavesdropping is illegal.

Moreover, the rejection by both Judge Taylor and Judge Gilman of the administration's Article II and AUMF "defenses" are completely consistent with the rejection of those same defenses by the Supreme Court in its Hamdan ruling last June, when the Court found illegal the President's Guantanamo military commissions. The two prongs of the Cheney/Addington/Yoo Vision of Presidential Omnipotence used to justify a whole array of presidential lawbreaking -- Article II "inherent authority" and AUMF's "implicit" authorization -- have suffered one legal defeat after the next. If anything, yesterday's decision bolsters that trend, not undermines it.

(3) This is one of those types of legal outcomes which -- understandably so -- can drive laypersons, along with conscientious lawyers, crazy. 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.

Worse still, it means that if the Government breaks the law in secret, it can be immune from being held accountable in a court because no one individual can ever prove that they were directly and uniquely harmed by the illegal conduct, and thus would lack standing to sue. That result is as destructive as it is Kafka-esque, and it is what happened yesterday.

But the fact that the decision's result is so unfair does not mean, unfortunately, that it was wrongly decided. The role of the judge is to apply the law as it exists, and a judge is not free -- nor should we want them to be free -- to disregard binding legal doctrine whenever the judge decides that doing so is necessary to avoid unfair results. In a society that exists under the rule of law, the solution to bad laws and bad legal doctrines is to change those laws democratically, not to empower judges unilaterally to disregard the law in order to produce (what the individual judge perceives to be) better results.

As technical-seeming as it is, "standing" is a critically important constitutional limitation on the power of the judiciary. Independently, whether one believes in the merits of this doctrine or not, it is a requirement that must be fulfilled before the Constitution permits a court to rule on any matter. And there is good reason for that.

Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act ("The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party"). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

The role of a federal court is thus confined to resolving actual, specific disputes between specific parties where, in essence, one party has harmed the other. If such an injury is lacking, it means that the plaintiffs in a case are basically asking the court to simply issue abstract rulings -- i.e., "is the Government's warrantless eavesdropping program legal"? -- rather than resolving an actual, specific dispute ("I was harmed by the defendant and am entitled to be compensated or otherwise have that wrongful conduct remedied").

Independent of the question of whether the standing issue was correctly resolved here -- and all of the judges appeared to believe that it was a close and difficult question -- the standing doctrine is an important limitation on the power of courts. And that is true even when it produces atrocious outcomes (such as yesterday's finding that our Government can break the law in how its spies on us but remain immune from judicial review as long as it keeps its lawbreaking a secret).

(4) The most important point here is, as usual, the one most overlooked by journalists and Bush followers alike. From the beginning of the NSA scandal, Bush followers have proudly boasted about how confident they were that their warrantless eavesdropping behavior was legal. And yet, the only thing they have done is desperately block one attempt after the next to obtain a legal ruling on whether they broke the law.

There have been countless proposals and other means available to have a court rule on whether the government broke the law and violated the Constitution by spying without warrants, and the administration has resisted every such effort. Yesterday's ruling was but the latest of the obstruction efforts.

Indeed, as Judge Gilman noted -- and as so-called "legal experts" commenting on this case have completely failed to understand -- the Bush administration in this case refused to defend its conduct on the merits. The only argument they made before Judge Taylor was that she had no right to rule on these matters, and they therefore, in effect, conceded the substantive claims that they broke the law. As Judge Gilman wrote:

This is an amazingly simple point that law professors and others who strutted around criticizing Judge Taylor's opinion -- including Orin Kerr and Ann Althouse in her tour de force of ignorance in a New York Times Op-Ed -- have failed to digest.

Judge Taylor did not "fail to address" arguments made by the Bush administration regarding the legality of their behavior because they did not make any such arguments. They refused to do so, because -- as always -- their only objective is to block judicial rulings on the legality of their behavior, not to defend what they have done.

But once myths like this take hold, especially when they are spouted by so-called "experts," they are impossible to eradicate, and hence, we find this on the front page of The New York Times today in an article by Adam Liptak:

Judge Taylor's ruling, which was stayed during the appeal, had attracted criticism from across the political spectrum. Legal experts said it overlooked important precedents, failed to engage some of the government's arguments and relied on novel constitutional arguments where more straightforward ones were available.

Except on the standing issue, yesterday's ruling did not repudiate any of Judge Taylor's findings. The one judge who ruled on them at all said he would have affirmed them, and on the issue of the program's legality, ruled as she did. Moreover, the claim that she "failed to engage some of the government's arguments" is based on the complete falsehood that the government advanced arguments to defend its behavior. It did not. It expressly refused to do so. And that is the key point here, and has been from the beginning.

Since the NSA scandal emerged, there has never been a remotely meritorious -- or even non-frivolous -- defense to the President's lawbreaking. And the administration knows that, which is why they have desperately sought to block judicial review of their behavior and have refused to defend their behavior in court. Rather than simplistically focus on the binary win/loss analysis in discussing this outcome, perhaps journalists could highlight the real scandal here -- having been caught red-handed violating the law in eavesdropping on our conversations, the Bush administration has done everything possible to prevent a judicial ruling on the legality and constitutionality of its actions.

(5) The plaintiffs here will, of course, appeal, though they have no automatic right to have their appeal heard. Either the full Sixth Circuit panel or the Supreme Court must agree to hear their appeal if there is to be a further decision in this case. There are court cases (against AT&T and other telecommunication companies) challenging the legality of the NSA program pending in the Ninth Circuit, where the District Judge has refused to dismiss those lawsuits based on the "state secrets" doctrine and an appellate ruling on that question is expected soon.

There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program. Regardless of one's views on the legality of this program, obtaining a judicial ruling is urgently necessary. It should require little mental energy to contemplate the dangers of allowing our government leaders to spy on us (or take other actions against us) in secret and then simultaneously block any and all processes to determine whether they have broken the law.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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