Tuesday, August 22, 2006

More on the NSA Opinion

ORIN KERR has an interesting essay on the NSA opinion:
"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.

What are those procedural matters? Well, a few come to mind. For example, does FISA permit injunctive relief? If not, does the Administrative Procedure Act permit courts to make an end-run around this failure to provide for injunctive relief? Article III standing aside, can a court grant injunctive relief for Fourth Amendment violations without first finding that the plaintiffs' own Fourth Amendment rights were violated? What about FISA and the Wiretap Act, which all incorporate the same 'aggrieved person' standard designed to mirror the Fourth Amendment standing inquiry rather than the Article III standing inquiry? If an injunctive remedy is permissible and merited, what is the proper scope of that remedy -- should the injunction stop the illegal parts of the program, or the program as a whole that happens to have some illegal parts? It seems to me that there were lots and lots of legal issues like this that had to be answered before Judge Taylor could reach the merits and (potentially) enjoin the program, even assuming that DOJ's defense on the merits is weak and the states secrets privilege doesn't apply.

What does this suggest about what the Sixth Circuit will or should do on appeal? Well, to me in suggests that the Sixth Circuit should reverse, whether on the state secrets privilege (if the judges agree with DOJ on that) or simply on the procedural impropriety of bypassing discovery and briefing on the law and all of the procefural and substantive issues raised (if the judges don't). Even assuming that DOJ's arguments are weak, there are still a lot of procedural hurdles to jump through in this case."
Of course, I'm not an attorney, and that means I can't claim any expertise concerning his essay or his questions and intuition. I'm struck by the nature of his questions when considered next to the press reports about the NSA program in question. My intuition is that his questions are relevant. This leads me to think it is likely that the opinion is premature and that it is pretty likely the next court down the line will return the case for discovery and determination of the relevant facts of the case. I add to this that I have read or heard at least 2 other commentators on this opinion point out that the judge in this opinion did not once mention the opinions they believe are precedent suggesting a different opinion than that written in the present opinion. In contrast, I think the press reports on the opinion leave the average citizen (and voter) with the impression that the NSA program has been determined to be unconstitutional, and this is end of story for the President. Yet, my sense, after reading Kerr and some others is that there is a very good chance the next court in line will say, not so fast, there is still much work to be done in court before we tackle the issues.

Could it be the recent opinion was written with a political agenda in mind?

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