A procedural puzzle at the heart of ACLU v. NSA.

Orin Kerr seems to be getting at what happened in ACLU v. NSA:

As I understand it, DOJ's response to the motion for summary judgment filed in the case was to assert the state secrets privilege, which basically put the case on hold until the state secrets privilege issues were worked out. In other words, DOJ said, "we're not going to even respond to the merits of the issues in this suit because it shouldn't go forward under the state secrets privilege, and that has to be resolved first." After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government. (Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.)

So imagine you're a Sixth Circuit judge, and imagine (to make the case interesting) that you agree with Judge Taylor that the state secrets privilege should not block the suit. What then? It seems to me that it's way too early to just resolve all of the legal issues in the case without briefing; presumably you would want to send it back to the district court for discovery and fact-finding, or for resolution of the many difficult procedural issues in the case.

Well, that might explain the weird repetition of the strange word "undisputedly" throughout the opinion. I wonder why Judge Taylor didn't lay it on the line that this is what she is doing. She could have said: The plaintiffs have moved for summary judgment and they have, as required, demonstrated the absence of a genuine issue of material fact.

Moreover, if we go to the DOJ link that Kerr provides, we see that the government not only moved for summary judgment (and, alternatively, for dismissal) based on the state secrets privilege, but it also moved for dismissal or summary judgment based on standing. I note that the first part of the judge's opinion, dealing with the state secrets doctrine and standing -- or at least the first prong of the three-part standing doctrine -- is decently detailed and judicial in tone. Perhaps late in the game, the judge got the idea of rushing to the finish line and deciding all the substantive issues in the case.

If we go to page 4 of the linked DOJ document, we see the unclassified memorandum supporting the state secrets motion, and it also refers to a motion to stay consideration of the plaintiffs' motion for summary judgment. Go to page 57 of the linked document for the argument for staying the plaintiffs' motion: the claim of the state secrets privilege necessarily precedes any motion that requires consideration of the evidence and cites cases justifying the use of discretion to stay the plaintiffs' motion for this reason.

The word "stay" does not appear in Judge Taylor's decision!

Surely, it is absurd to blame the government for failing to raise a factual issue when it was arguing for that the facts were privileged! And to do that without even discussing the fact that you are doing that, without mentioning the motion to stay is truly outrageous.

If I'm missing something, please let me know.

UPDATE: I see from reading the comments to Orin's post that the judge did deny the motion for a stay on an earlier occasion, on May 31st. You can see the order here. There's no discussion of the reasoning for this or of any of the cases the defendants cited in support of the motion for the stay. Arguably, this gave the defendants an opportunity to present evidence to defeat the summary judgment motion, and they chose not to take it.

ANOTHER UPDATE: The 6th Circuit reverses the decision -- discussed here.