Reversal in the warrantless surveillance case.

The 6th Circuit Court of Appeals has reversed the decision in the warrantless surveillance case, on the ground of lack of standing:

U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance....

Although the Bush administration said in January the program is now overseen by a special federal intelligence court, opponents said that without a court order, the president could resume the spying outside judicial authority at any time. The Justice Department has said the case is moot.

You may remember that I was very critical of the district judge's decision, both on this blog...

It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality. Does the judge lack the competence to do it? Does the judge have a hot feeling of righteousness and outrage about the case and also think it's good to show it? Perhaps it's some subtle combination of those two things.

... and in a NYT op-ed:

Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

More later, when I have read the opinion.

ADDED, after reading the case: There are three opinions from each of the three judges on the 6th Circuit panel. In the main opinion, Judge Batchelder goes through all the claims separately, following the 3 parts of the injury-in-fact test for standing, but her basic position is made clear in her discussion of the First Amendment claim.

As she sees it, the plaintiffs alleged that they have a "subjective belief that the NSA might be intercepting their communications," and that, if this is occurring, it interferes with their professional obligation as journalists, academics, and lawyers to maintain confidentiality in their telephone communications. Even though the First Amendment takes account of the "chilling effect," Batchelder writes, plaintiffs can't satisfy the injury requirement with their own "purely speculative fears."

She relies heavily on the 1972 Supreme Court case Laird v. Tatum:

The Laird plaintiffs alleged that the Army surveillance program caused a chilling effect on their First Amendment rights in that they and others were reluctant to associate or communicate for fear of reprisal, stemming from their fear that the government would discover or had discovered them (and their activities) by way of the secret surveillance. The harm alleged in the present case is no more substantial; the plaintiffs allege a similar chilling effect on their First Amendment rights, in that they are bound by professional and ethical obligations to refrain from communicating with their overseas contacts due to their fear that the TSP surveillance will lead to discovery, exposure, and ultimately reprisal against those contacts or others. But unlike the Laird plaintiffs, the plaintiffs here do not assert that they personally anticipate or fear any direct reprisal by the United States government, or that the TSP data is being widely circulated or misused. Indeed, the district court stated that, to date, no one has been exposed or prosecuted based on information collected under the TSP. ACLU v. NSA, 438 F. Supp. 2d at 771.

The plaintiffs also attempted to say that they were injured because their overseas contacts might not want to talk to them. But the absence of a causal link between the injury and the NSA program -- the required second prong of the standing test -- would alone defeat the plaintiffs' standing.

Judge Gibbons concurs, deciding the standing question on a single, straightforward point: The plaintiffs failed to provide evidence that they have been subjected to the program, so they lack the injury needed to meet the constitutional standing test.

Gibbons is also straightforward in noting her disagreement with the dissenting Judge Gilman. Gilman relies on Friends of the Earth v. Laidlaw, a 2000 Supreme Court case that is rather generous in assessing the injury of plaintiffs who sued about pollution to a waterway near where they live. Gibbons says Laidlaw is different because the plaintiffs' proximity to the water was concrete and real (even if the pollutant was infinitesimal), whereas here, the plaintiffs can only guess that that the government is intercepting their calls.

That, in Gibbons' view, made their case more like Los Angeles v. Lyons, in which the Court denied standing to a man whose claimed injury was a fear that he'd be subjected to a police chokehold. The Laidlaw plaintiffs premised their injury on fear too, but the activity that they complained of physically impinged on them. (They were near the river.) Lyons was only worried that the activity might be directed at him. (Lyons had been choked in the past, and that made him more intensely fearful, but his failure to show he would be choked in the future meant he lacked standing to seek prospective relief.)

What Lyons, Laird, and Laidlaw really show, I think, is that the Supreme Court has wavered in how stringently it applies its own test. It is lenient about standing in environmental cases (as we saw again this Term in Massachusetts v. EPA, the case about global warming). By contrast, is tough in police brutality cases, like Lyons. If the standing test is to be applied according to context and not abstract principle, then Laird is the most relevant case. So I would expect the Supreme Court to agree with Batchelder and Gibbons.

But this doesn't mean that the dissenting judge is obviously wrong. Gilman thought fear was enough as long as it was reasonable and well-grounded. Focusing on the lawyers and relying on Laidlaw, he thought they'd done enough to make their fear sufficiently concrete: They showed that they are the sort of persons that the program seems designed to apply to. Isn't that enough like living near the river?

If we concede that there can be flexibility in the constitutional standing test -- and not everyone does -- we might want to use that flexibility and side with Gilman, so that it isn't impossible to challenge a secret program. The plaintiffs couldn't go any further than they did. The government will not let them see the evidence of whether the program was in fact applied to them, because it relies on the state secrets privilege. This is a frustrating bind, but why not resolve it in favor of empowering the court to address the merits of the case?

Do Batchelder and Gibbons convince us to resolve the bind in favor of the government that asserts the privilege? Batchelder arranges things so that the evidence behind the privilege supposedly doesn't matter. Apparently, what the plaintiffs don't know doesn't hurt them: The only injury they have – whether they are being spied on or not – is their fear that they are being spied on. Then -- how neat -- secretiveness avoids the injury.

Gibbons thinks it's important to admit the effect the privilege is having on the standing issue. But then she simply abides by the privilege. It excludes what it excludes, and the plaintiffs are stuck with the consequences. Then -- also neat -- their injury is insufficient because they didn't -- they couldn't! -- show that the program had been applied to them.

Naturally, Batchelder and Gibbons don't acknowledge that they feel a pull in the opposite direction from Gilman. Their context-sensitive response has to do -- I'm guessing -- with sympathy toward the interest in preserving the secrecy of the program and worry that the court's intrusion into this matter would have unpredictable negative consequences. I'd explain Laird and Lyons that way too. You may not like this sort of pragmatism in constitutional analysis, but you can't easily harmonize the case law without it.

So much for the injury requirement. Let's consider the second and third prongs of the standing test: causation and redresability.

There really is quite a problem with causation -- the requirement that the complained-of injury was caused by the defendants' actions. As Batchelder put it -- Gibbons avoided the issue -- the problem with causation is that the defendants' action was the failure to obtain a warrant, and since any absence of a warrant would be unknown to the defendant, it couldn't be the source of any disinclination to speak.

According to Batchelder:

The mere fact that the United States government is aggressively prosecuting a worldwide War on Terror — in which, by the plaintiffs’ own “well founded belief,” these contacts are likely suspects — would appear sufficient to chill these overseas contacts regardless of the absence of FISA protections.

Here's Gilman's response: "If the TSP did not exist, the attorney-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." No reason? Part of the political attack on the program has always been that the FISA requirements are not hard to meet. If so, following them would still leave the plaintiffs at risk.

One would think that Gilman should have had to say that the failure to adhere to FISA increased the chance that the calls would be intercepted or that there'd be less "minimization" of anything actually intercepted, so the program caused some increment of fear. But if you admitted that much, you'd have to go back and redo your injury analysis. Only that increment of fear could be used to satisfy the injury requirement.

On the third prong of the test, the plaintiffs needed to show that the relief they sought would cure the injury they complained of. The relief sought was a declaration that the program is illegal. In Batchelder's view, if the program were restructured, warrants would issue secretly, and the plaintiffs' fear would remain:

The only way to redress the injury would be to enjoin all wiretaps, even those for which warrants are issued and for which full prior notice is given to the parties being tapped. Only then would the plaintiffs be relieved of their fear that their contacts are likely under surveillance, the contacts be relieved of their fear of surveillance, and the parties be able to “freely engage in conversations and correspond via email without concern.”

The plaintiffs did not, of course, ask for such an absurdly broad remedy.

Gilman thinks redress could come simply from knowing that the minimization procedures of FISA would apply. He acknowledges that the challenged program might include a policy of nondisclosure of intercepted material, but since the plaintiffs don't know that, they'd get relief from knowing the government had to work within FISA. It is the very secrecy of the program, then, that inflicts injury on the plaintiffs, causing them to change their behavior, and what matters is the difference between the specific process outlined in FISA and the unknown program.

This is a fine but sharp point, and it may be enough to justify answering the precise question on the merits that Gilman goes on to address:

Without expressing an opinion concerning the analysis of the district court, I would affirm its judgment because I conclude that the TSP violates FISA and Title III and that the President does not have the inherent authority to act in disregard of those statutes. The clearest ground for deciding the merits of this appeal is the plaintiffs’ statutory claim, just as the clearest argument for standing is presented by the attorney-plaintiffs. This is not to say that the plaintiffs’ other causes of action lack merit, but simply that this case can, and therefore should, be decided on the narrowest grounds possible.

See the subtle but distinct disrespect he shows to the district judge? He declines to address her opinion at all. He relies wholly on the applicability of the two statutes, the "narrowest grounds possible" -- a restrained approach that he considered necessary. Recall that the district judge, Anna Diggs Taylor, romped through questions of First and Fourth Amendment law and separation of powers and did so without bothering to crank out the neutral-sounding verbiage that might help us believe she only did what the law compelled. Gilman's discussion is circumspect and judicial in tone. Unlike the district judge, he displays a proper sense of the role of a judge, and none of the criticisms I aimed at Judge Taylor in that NYT op-ed apply to him.

I think, in the end, the standing question is difficult in the way that it often is, and Gilman's resolution of the problem is typical of the liberal side of the Supreme Court. It's respectable, but likely to lose in the Court as now configured.

Enough for now. I know I haven't written about Gilman's opinion on the applicability of the statutes and the lack of inherent presidential authority to run free of the statutes. These are difficult questions, this post is way too long, and Saturday is begging for my attention.