About that 4th amendment...

1. There's the new Supreme Court case, Kentucky v. King, described here by Orin Kerr, who thinks Justice Alito "did a pretty sharp job":

In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exiegncy [sic] — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed...

2. There's what the Indiana Supreme Court said in Barnes v. State, and, again I'm relying on the wonder that is Orin Kerr:

In this case, the officer had come to the home in response to a domestic violence call.... The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.

The defendant was charged with misdemeanor battery against a police officer, among other things. At trial, he wanted to argue to the jury that it was lawful to shove the officer because he had a citizen’s right to reasonably resist unlawful entry into his home. 

The court said there was no such right, noting "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

I'm not ready to take a position on either of these cases, but I wanted to put them up for discussion. I'm about to record a Bloggingheads episode, and we may talk about these, but, then again, maybe not.

2 Harvard law students sue Janet Napolitano and the TSA administrator over the airport scanning and groping.

They say it violates the 4th Amendment.

IN THE COMMENTS: lyssalovelyredhead said:

On a related note, I heard from a lawyer today... that his client, an employer, is being sued by a frequent flying employee, who is alleging forced flying under these conditions constitutes hostile work environment.

"And in my experience, too, people did sometimes stick things in my underwear... Or not my underwear."

"Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience, not beyond human experience."

Yesterday, Justice Breyer talked about his underpants.

(PDF.)

IN THE COMMENTS: Daryl says:

The crazy fact is, about 40% of the Supreme Court's civil rights cases turn on the personal experiences of the judges.

"I never did that. So why does anyone else need the right to do that?"

Or, in this case, "they'd better strip search those kids. I smuggled Ibuprofen into school twice a week in my Superman underoos."

When school officials strip search a 13-year-old girl who they think might have some extra-strength ibuprofen...

The Supreme Court heard argument today in Safford School District vs. Redding, and the Justices seemed pretty sympathetic to the school:

Chief Justice John G. Roberts Jr. said the school officials should be shielded from being sued since the law governing school searches had not been clear...

Justice Anthony M. Kennedy... objected when Adam Wolf, an American Civil Liberties Union lawyer for Redding, argued that the strip search was unreasonable because there was no evidence she was hiding anything in her underwear.

"Is the nature of drug irrelevant?" he asked. "What if it was meth to be consumed at noon?"...

It is "a logical thing" for adolescents to hide things, [Justice Breyer] said. A student might stick something "in their underwear," he added, provoking laughter when he said that this had happened to him at school. "It's not beyond human experience."...

"Better embarrassment [of one student] than the risk of violent sickness and death," Souter said.

"[T]he Obama administration may be attempting to appease its antiwar base ... or trying to look good for the chattering classes."

John Yoo defends his memos:

Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable -- combat occurred wholly on U.S. territory and enemy soldiers were American citizens. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of "reasonableness" -- as they might review a police officer who fires in self-defense -- rather than demand a warrant to use military force to stop a terror attack....

But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.

"Should You Leave Your Laptop at Home When Traveling Abroad?: The Fourth Amendment and Border Searches of Laptop Computers."

So, to translate that question for me: Should you travel abroad?

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.

The new Supreme Court cases, especially the new negative Commerce Clause case.

SCOTUSblog gives us a first glimpse:

The Supreme Court, in a major victory for Microsoft Corp.... Microsoft Corp. v. AT&T...

In a second ruling on patent law, the Court decided unanimously that the Federal Circuit Court had been wrong in taking a narrow view of when an invention is "obvious" and thus cannot be patented.... KSR International v. Teleflex....

... [P]olice do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash..... Scott v. Harris....

[I]f a taxpayer could have sued to challenge an erroneous federal tax levy, but fails to do so on time, may not later sue for a refund... EC Terms of Trust v. U.S....

... [L]ocal government does not violate the Constitution when it [requires] all solid waste generated in the community to be processed at a publicly owned facility, so long as the ordinance treats private businesses the same whether they are local or out-of-state.... United Haulers Association v. Oneida-Herkimer Solid Waste Management...

The last one, a negative (dormant) Commerce Clause case, is especially interesting to me. Here it is, with four separate opinions, written by, oddly enough, Roberts, Scalia, Thomas, and Alito. Roberts announces the decision:

We hold that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not “discriminate against interstate commerce” for purposes of the dormant Commerce Clause.

Because he finds no discrimination, he goes on to the balancing test (the "Pike test"):

Under the Pike test, we will uphold a nondiscriminatory statute like this one “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”...

We find it unnecessary to decide whether the ordinances impose any incidental burden on interstate commerce because any arguable burden does not exceed the public benefits of the ordinances.

The ordinances give the Counties a convenient and effective way to finance their integrated package of waste-disposal services....

At the same time, the ordinances are more than financing tools. They increase recycling in at least two ways, conferring significant health and environmental benefits upon the citizens of the Counties....

The Counties’ ordinances are exercises of the police power in an effort to address waste disposal, a typical and traditional concern of local government.

Souter, Ginsburg, and Breyer join the opinion in full. Scalia joins up to the point where Roberts applies the balancing test:

I have been willing to enforce on stare decisis grounds a “negative” self-executing Commerce Clause in two situations: “(1) against a state law that facially discriminates against interstate commerce, and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by the Court.”... As today’s opinion makes clear, the flow-control law at issue in this case meets neither condition. It benefits a public entity performing a traditional local-government function and treats all private entities precisely the same way....

I am unable to join Part II–D of the principal opinion, in which the plurality performs so-called “Pike balancing.” Generally speaking, the balancing of various values is left to Congress—which is precisely what the Commerce Clause (the real Commerce Clause) envisions.

Thomas concurs. He would get rid of negative Commerce Clause enforcement altogether:

The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice.... As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.

Alito dissents, joined by Stephens and Kennedy. He perceives discrimination:

[T]hese laws discriminate against interstate commerce (generally favoring local interests over nonlocal interests), but are defended on the ground that they serve legitimate goals unrelated to protectionism (e.g., health, safety, and protection of the environment). And while I do not question that the laws at issue in this case serve legitimate goals, the laws offend the dormant Commerce Clause because those goals could be attained effectively through nondiscriminatory means....

The key, based on past precedent, is that the processing plant was not privately owned, as Roberts emphasizes:

“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause.

I would have been very surprised if the case had come out the other way. It's true Roberts doesn't have a majority, but that is only because Scalia and Thomas are even less willing to strike things down on a negative Commerce Clause theory. It's interesting to see Alito break away from Roberts, Scalia, and Thomas, especially since he perked up at the invocation of "traditional government activity":

[T]his Court has previously recognized that any standard “that turns on a judicial appraisal of whether a particular governmental function is ‘integral’ or ‘traditional’ ” is “ ‘unsound in principle and unworkable in practice.’ ” Garcia v. San Antonio Metropolitan Transit Authority (1985) . Indeed, the Court has twice experimented with such standards—first in the context of intergovernmental tax immunity, see South Carolina v. United States (1905) , and more recently in the context of state regulatory immunity under the Commerce Clause, see National League of Cities v. Usery (1976) —only to abandon them later as analytically unsound. See Garcia, supra, at 547 (overruling National League of Cities); New York v. United States (1946) (overruling South Carolina v. United States). Thus, to the extent today’s holding rests on a distinction between “traditional” governmental functions and their nontraditional counterparts, it cannot be reconciled with prior precedent.

This unnecessary invocation of Garcia is not what you'd expect from a Justice dedicated to federalism.

ADDED: The case about the high-speed chase includes the video.

MORE: Justice Scalia discusses the video in Scott v. Harris:

[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test:

“[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” Id., at 815–816 (citations omitted).

The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury....

Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

"Visible fiction"? Is that a typo for "risible fiction"?

Anyway, I watched the video, and I understand why you'd want to reject the plaintiff's characterization of the facts. But this is a case about when to grant summary judgment, avoiding trial. Justice Stevens dissented:

[T]he Court has usurped the jury’s factfinding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable.....

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events....

The Court today sets forth a per se rule that presumes its own version of the facts: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Not only does that rule fly in the face of the flexible and case-by-case “reasonableness” approach applied in Garner and Graham v. Connor, 490 U. S. 386 (1989) , but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any “innocent bystande[r].” In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures—in this case, the use of stop sticks9 or a simple warning issued from a loudspeaker—could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.

But even Justices Ginsburg and Breyer agreed with the outcome.

"President Bush has quietly claimed sweeping new powers to open Americans' mail without a judge's warrant."

So the Daily News wrote back in January:

Experts said the new powers could be easily abused and used to vacuum up large amounts of mail.

"The [Bush] signing statement claims authority to open domestic mail without a warrant, and that would be new and quite alarming," said Kate Martin, director of the Center for National Security Studies in Washington.

"The danger is they're reading Americans' mail," she said.

"You have to be concerned," agreed a career senior U.S. official who reviewed the legal underpinnings of Bush's claim. "It takes Executive Branch authority beyond anything we've ever known."

A top Senate Intelligence Committee aide promised, "It's something we're going to look into."

Most of the Postal Accountability and Enhancement Act deals with mundane reform measures. But it also explicitly reinforced protections of first-class mail from searches without a court's approval.

What's really going on here? My colleague Anuj Desai has a spiffy little article explaining the law, where a lot hangs on the way the words "letter" and "mail" don't mean the same thing:

I conclude that the statutory prohibition on mail opening only applies to mail matter that falls into the category of “letter” - which, roughly speaking, is defined as a “message” or “communication” or “correspondence.” The prohibition on mail opening thus does not apply to mail matter other than “correspondence,” such as bombs, anthrax or any ordinary good. The statute bars the opening of letters without a warrant, subject to only one relevant exception: the “physical searches” provisions in the Foreign Intelligence Surveillance Act (“FISA”). The government may not open letters without either a warrant or following the procedures set forth in FISA. There is no “exigent circumstances” exception for letters, though the government may temporarily detain a letter for the purpose of obtaining a warrant.

On the other hand, the government may open other mail matter without a warrant subject only to the strictures of the Fourth Amendment. The Fourth Amendment does contain an “exigent circumstances” exception to the ordinary rule that a warrant is required. Thus, scenarios that might involve hazardous materials such as anthrax or a ticking time bomb would in many circumstances fall into this exception.

You can download the paper here.

The shocking decision in ACLU v. NSA.

I guess I should say I gagged on it, to keep up today's neck/throat theme. But really...

I'm truly shocked. It's like the feeling you have when you're grading blue books and you realize this one's going to have to get an F.

I finally had the time today to read the whole opinion in ACLU v. NSA... I mean, that was the whole opinion, right? I kept shuffling the pages around and looking under the table to see if there were some pages I missed...

What the hell? Was there no law clerk who had enough nerve to say, Judge, it can't go out like this? How do you ever get to the level of arrogance that keeps you from seeing when an opinion is this patently deficient? Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to? I can see slipping into abject carelessness in a low profile case, but this is such a conspicuous case. I simply cannot fathom how a judge with any sense at all, with any assistance from law clerks who were not cowed into ridiculous submission, would file a case in this form.

I'm not talking about the normal way judges write result-oriented decisions, which is to layer in the scholarly and neutral-looking verbiage in the hope that most people will swallow it and the critics will seems like sore losers. This opinion -- beginning midway through the text -- does not even look like a rough draft. It seems as if the judge ran out of time and handed in something that was less than an outline. Much less.

The first half of the text is written in a creditable style. Most of this is the discussion of the state secrets doctrine, which concludes with a dismissal of the plaintiffs' claim challenging the data mining program. We then begin the material that leads to the judge's conclusion that the warrantless surveillance program -- known as TSP -- should be enjoined. The first few pages of this are written competently, as the judge finds that the plaintiffs are suing because they have a "distinct and palpable injury" and thus satisfy the first of the three constitutional requirements for standing to sue. Cases are cited and discussed appropriately. One could argue with the analysis, but it is what one expects from a decently written opinion.

At this point, with many issues left to discuss -- including the rest of the standing doctrine and all of the questions of statutory and constitutional law relating to TSP -- the writing falls headlong off a cliff. I have never seen anything like this. There are many sections left to the opinion, but each contains little more than preliminary verbiage -- quotes from old cases and zingers about how the Framers opposed King George III -- with tagged on conclusions about how "obviously" the Fourth Amendment/First Amendment/Separation of Powers is violated. These read like place-keeper sentences that were slated to be replaced by real analysis.

The judge grants a permanent injunction on the assertion that the requirements "have undisputedly been met." Undisputedly? No one disputed that the requirements were met? I guess that was supposed to be "indisputably." The judge drops a footnote listing the requirements for an injunction:

(1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

The text of the opinion offers three sentences of analysis of these requirements:

The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

That's not analysis. That's a petulant refusal to take the task of judging seriously. Where is the discussion of hardship and public interest? The judge is so hot to hold the President to what she sees as his constitutional obligations. You'd think she'd take a little more care to give the appearance of adhering to hers.

Not digging Judge Anna Diggs Taylor.

I haven't had the time to read Judge Anna Diggs Taylor's opinion about the NSA program, other than to skim it and form the impression that it wasn't well-written and that the real analysis will have to come at the appellate stage.

Eugene Volokh's observations resonate with my superficial impression:

[T]he judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Also at Volokh Conspiracy, Dale Carpenter is critical of the judge's conclusion that the plaintiffs have standing to sue, and Orin Kerr blasts the Fourth Amendment analysis.

This morning, the Washington Post is really hard on Judge Diggs:

[T]he decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful....

The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

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.

UPDATE: The 6th Circuit reverses -- discussed here.

What is this seeming compromise on the NSA surveillance program?

The NYT reports:

The White House has agreed to allow limited judicial review of the eavesdropping program run by the National Security Agency, Senator Arlen Specter, the chairman of the Senate Judiciary Committee, and a White House spokeswoman said today.

Mr. Specter, a Pennsylvania Republican who has sharply questioned the propriety of the program since it was disclosed several months ago, said the White House had agreed to a bill that provides for the highly secret Foreign Intelligence Surveillance Court to “consider the program as a whole and to make a decision on it.”...

A White House spokeswoman, Dana Perino, said today that a crucial factor in the agreement was that the bill “recognizes the president’s constitutional authority."...

Mr. Specter held a Capitol Hill news briefing after informing members of his committee about the agreement. He told panel members that the proposed bill would, among other things, demand that government investigators explain why they believe intercepted communications involve terrorism and create new penalties if officials misuse information....

Asked whether the review by the court would be continuing or a one-time affair, the senator said it would be the latter, unless the eavesdropping program is changed. “What we’re looking for is the existing program to be submitted to the F.I.S.A. Court on a one-time review; they make a decision, that’s it,” Mr. Specter said. He declined to speculate on whether the court would announce its decision.

I'd like to see more information on this, but based on this report, I can't tell what the court is being asked to do or who is supposed to have standing to bring the lawsuit the bill purports to authorize. A one-time review of the legality of the program? Who is suing whom in this lawsuit, and how does it avoid the problem encountered in Raines v. Byrd, where Congress tried to set up judicial review of the Line-Item Veto Act? Even if there is a concretely injured plaintiff to bring the lawsuit, what is the question the court is to answer? I thought the primary legal argument against the NSA program was that it didn't follow the letter of the statutory law. If the statutory law is changed to explicitly permit it, what is left? A Fourth Amendment argument? Does anyone think there is much to that?

"[T]he proposed bill would... demand that government investigators explain why they believe intercepted communications involve terrorism." In a one-time review? So the bill authorizes the program, but on condition the government proffer a good-enough explanation that it is indeed a method for tracking terrorists. Isn't that just a policy decision that Congress should be making right now as it passes a bill that authorizes the program? Please argue with me. I'm sure I'm missing something. But I'm just seeing a complete fizzle when this gets into the court.

"Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?"

Worried Justice O'Connor at oral argument in Hudson v. Michigan last Janauary. The case was reargued after Alito replaced O'Connor, and now, with Alito's vote, the Supreme Court has ruled in favor of the state, permitting the use of evidence where the police failed to follow the "knock-and-announce" rule established in Fourth Amendment law.

Justice Scalia wrote the opinion:

When the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few?...

Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. The issue here is remedy....

Suppression of evidence... has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” ... which sometimes include setting the guilty free and the dangerous at large...

What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

Justice Kennedy's vote was needed for the majority, and he wrote a separate opinion, denying that "violations of the [knock-and-announce] requirement are trivial or beyond the law’s concern" and that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

That's not how the dissenters saw it. Justice Breyer worried about letting the "police know that they can ignore the Constitution’s requirements without risking suppression of evidence discovered after an unreasonable entry." For a spirited defense of the exclusionary rule, read the whole thing.

UPDATE: The press is doing a bad job of reporting this case! I keep hearing and reading assertions that the Court said the police didn't commit a violation, when the government conceded that they did! This case was about what remedy was available for the violation.

ANOTHER UPDATE: Nina Totenberg gets it right.

"Reveal[ing] the strains behind the surface placidity and collegiality of the young Roberts court."

The first dissenting opinion written by Chief Justice John Roberts provides an occasion for Linda Greenhouse to portray the mood of the Court.

UPDATE: Orin Kerr -- who promises much more blogging on the case, Georgia v. Randolph -- theorizes about four models of Fourth Amendment interpretation.

What Gonzales will say about the surveillance program.

Today, Attorney General Gonzales will testify before the Senate Judiciary Committee about the Bush administration's surveillance program. He's got a column in the WSJ this morning, which presumably reflects what he will say:

The president, as commander in chief, has asserted his authority to use sophisticated military drones to search for Osama bin Laden, to deploy our armed forces in combat zones, and to kill or capture al Qaeda operatives around the world. No one would dispute that the [The Authorization for Use of Military Force] supports the president in each of these actions.

It is, therefore, inconceivable that the AUMF does not also support the president's efforts to intercept the communications of our enemies. Any future al Qaeda attacks on the homeland are likely to be carried out, like Sept. 11, by operatives hiding among us. The NSA terrorist surveillance program is a military operation designed to detect them quickly. Efforts to identify the terrorists and their plans expeditiously while ensuring faithful adherence to the Constitution and our existing laws is precisely what America expects from the president....

The AUMF is broad in scope, and understandably so; Congress could not have catalogued every possible aspect of military force it was endorsing. That's why the Supreme Court ruled in Hamdi v. Rumsfeld that the detention of enemy combatants--a fundamental incident of war-- was lawful, even though detention is not mentioned in the AUMF. The same argument holds true for the terrorist surveillance program. Nor was the president's authorization of the terrorist surveillance program in violation of the Foreign Intelligence Surveillance Act. FISA bars persons from intentionally "engag[ing] . . . in electronic surveillance under color of law except as authorized by statute." The AUMF provides this statutory authorization for the terrorist surveillance program as an exception to FISA.

Lastly, the terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures. Like sobriety checkpoints or border searches, this program involves "special needs" beyond routine law enforcement, an exception to the warrant requirement upheld by the Supreme Court as consistent with the Fourth Amendment.

We already know this is the argument. We also know the argument of those who oppose the program. What will be interesting today will be to see how well Gonzales will be able to defend the program under hard questioning and how far the Senators will be willing to go when they know that part of the answer, explicit or insinuated, will inevitably be that if they oppose the program they do not care enough about national security.

Defending the NSA surveillance program.

The Department of Justice has a 42-page legal analysis of the much-criticized NSA surveillance program (PDF):

The [Authorization for Use of Military Force] places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635.

The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002), and relevant related provisions in chapter 119 of title 18.1 Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. See 50 U.S.C. § 1809(a) (prohibiting any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized 1 Chapter 119 of title 18, which was enacted by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2521 (2000 & West Supp. 2005), is often referred to as “Title III.” by statute”). The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.

We've already heard this argument, but the new document makes the structure of the argument very clear: the activities should be seen as not violating FISA (because of the AUMF), but if a conflict with FISA is seen, the President still has the power (because FISA would be unconstitutional as an infringement of his Article II powers). The latter argument is also held up as a reason to interpret FISA not to see a conflict (because statutes should be interpreted to avoid difficult questions of constitutional law). That is, any ambiguities in coordinating FISA and AUMF should be resolved in favor of presidential power.

The document also deals with the question whether the Fourth Amendment is violated.

Here is the NYT article about this new document.

Orin Kerr says: "The new document is basically an appellate brief filed in the Court of Public Opinion." Well, Public, what do you think?

Robscalithom predictions.

William Safire returns to the NYT op-ed page to do his usual "office pool" on predictions for the year 2006. Question 4 is about the Supreme Court:

The Robertscalito court will: (a) in the Texas case disengage from involvement in states' redistricting; (b) go the other way in Oregon, holding that federal power to prohibit substances trumps a state's authority to permit physician-assisted suicide; (c) decide that federal funds can be denied to law schools that prohibit military recruitment on campus; (d) uphold McCain-Feingold, enabling Congress to restrict political contributions but not expenditures; (e) reassert citizens' Fourth Amendment protection from "security letters" and warrantless surveillance.

His answer is "all." Some are more likely that others, though, especially (c). And "Robertscalito" is an awfully inelegant coinage for a notorious word maven. Much as I object to "Scalito," I still find it aesthetically appealing. If you're going to go toward ungainliness and make it "Robertscalito," leaving out Clarence Thomas becomes conspicuous. So in the interest of inclusiveness and aesthetics, I'll suggest: "Robscalithom."

They don't need to plant a tracking device on you.

Your cellphone is a tracking device. You planted it on yourself.

The government has routinely used records of cellphone calls and caller locations to show where a suspect was at a particular time, with access to those records obtainable under a lower legal standard. (Wireless operators keep cellphone location records for varying lengths of time, from several months to years.)...

Prosecutors, while acknowledging that they have to get a court order before obtaining real-time cell-site data, argue that the relevant standard is found in a 1994 amendment to the 1986 Stored Communications Act, a law that governs some aspects of cellphone surveillance.

The standard calls for the government to show "specific and articulable facts" that demonstrate that the records sought are "relevant and material to an ongoing investigation" - a standard lower than the probable-cause hurdle.

The magistrate judges, however, ruled that surveillance by cellphone - because it acts like an electronic tracking device that can follow people into homes and other personal spaces - must meet the same high legal standard required to obtain a search warrant to enter private places.

"Permitting surreptitious conversion of a cellphone into a tracking device without probable cause raises serious Fourth Amendment concerns, especially when the phone is monitored in the home or other places where privacy is reasonably expected," wrote Stephen W. Smith, a magistrate in Federal District Court in the Southern District of Texas, in his ruling.

"The distinction between cell site data and information gathered by a tracking device has practically vanished," wrote Judge Smith. He added that when a phone is monitored, the process is usually "unknown to the phone users, who may not even be on the phone."

Very interesting and important.