Partisan judge smackdown!

[Yonivore]

The opinion by partisan Democrat judge Anna Diggs Taylor that purported to hold the NSA's terrorist surveillance program unconstitutional was a bad joke--an exercise so deficient in legal reasoning that it would fail a first-year law school class. Today, the 6th Circuit Court of Appeals took the first step (http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/10/04/national/a124823D86.DTL) toward the inevitable repudiation of Taylor's lawless usurpation of power by ordering that the program may remain in force while it considers the government's appeal:


The unanimous ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals gave little explanation for the decision. In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest.
Think about those criteria for a moment.

What the Court is saying is that in all likelihood, the government's appeal will succeed, and that the public's interest in the program's continuation (i.e., being kept safe from terrorist attacks) outweighs the purported harm to terrorists and their contacts of having their communications monitored. It is extremely unlikely that anything will happen to overturn the Court's initial impression that Taylor's partisan opinion is wrong, and must be corrected.

[George Gervin's Afro]

The opinion by partisan Democrat judge Anna Diggs Taylor that purported to hold the NSA's terrorist surveillance program unconstitutional was a bad joke--an exercise so deficient in legal reasoning that it would fail a first-year law school class. Today, the 6th Circuit Court of Appeals took the first step (http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/10/04/national/a124823D86.DTL) toward the inevitable repudiation of Taylor's lawless usurpation of power by ordering that the program may remain in force while it considers the government's appeal:


Think about those criteria for a moment.

What the Court is saying is that in all likelihood, the government's appeal will succeed, and that the public's interest in the program's continuation (i.e., being kept safe from terrorist attacks) outweighs the purported harm to terrorists and their contacts of having their communications monitored. It is extremely unlikely that anything will happen to overturn the Court's initial impression that Taylor's partisan opinion is wrong, and must be corrected.



Then get a warrant. Why is it so hard for you to comprehend that Yoni? I enjoy hearing Bush and the GOP propoganda machine out there saying dems don't want to allow bush to listen to terrorists phone calls when the issue is about warrants. very simple follow the the law and get the required warrant. What I find absolutley preposterous is when Bush or anyone else says in defense of the program.."we are listening to terrorists phone calls only".. my question would then be if we know they are terrorists why aren't we getting them? I expect Yoni and the fellow GOP apologists will continue to blur the real issue at the heart of the matter especially during the next few weeks.

[Yonivore]

Then get a warrant. Why is it so hard for you to comprehend that Yoni? I enjoy hearing Bush and the GOP propoganda machine out there saying dems don't want to allow bush to listen to terrorists phone calls when the issue is about warrants. very simple follow the the law and get the required warrant.
First of all, you don't need a warrant to listen in to terrorist phone calls that originate overseas -- no matter who they are calling.


What I find absolutley preposterous is when Bush or anyone else says in defense of the program.."we are listening to terrorists phone calls only".. my question would then be if we know they are terrorists why aren't we getting them?
Maybe we are.


I expect Yoni and the fellow GOP apologists will continue to blur the real issue at the heart of the matter especially during the next few weeks.
Well, when the media persists in calling this a Domestic Surveillance Program, someone has to set the record straight.

[George Gervin's Afro]

First of all, you don't need a warrant to listen in to terrorist phone calls that originate overseas -- no matter who they are calling.


Maybe we are.


Well, when the media persists in calling this a Domestic Surveillance Program, someone has to set the record straight.


Well if one of the parties on the phone is an American citizen then the law should be followed correct? You would need to get the warrant even if you have to wait until after the fact? What is so hard about that?

[Yonivore]

Well if one of the parties on the phone is an American citizen then the law should be followed correct? You would need to get the warrant even if you have to wait until after the fact? What is so hard about that?
If one of the parties on the phone is in the United States (because you've yet to demonstrate any American citizen has been surveilled by this program), you only need a warrant if you intend to continue surveilling that phone. If you continue to surveil the overseas phone, you don't need one. If that phone continues to call the phone in the U.S., oh well.

You're not getting it, are you?

[boutons_]

"Maybe we are."

With 100% bad news, the Repugs would certainly be trumpeting any terrorist they caught with unwarranted snooping.

[George Gervin's Afro]

If one of the parties on the phone is in the United States (because you've yet to demonstrate any American citizen has been surveilled by this program), you only need a warrant if you intend to continue surveilling that phone. If you continue to surveil the overseas phone, you don't need one. If that phone continues to call the phone in the U.S., oh well.
You're not getting it, are you?

It's a secret program so how would anyone know? Hence the need for a FREAKING WARRANT! How hard is that to grasp?


Oh well let's just circumvent the law and then paint the opponents of the rpgram as not wanting to protect the country!

[FromWayDowntown]

The opinion by partisan Democrat judge Anna Diggs Taylor that purported to hold the NSA's terrorist surveillance program unconstitutional was a bad joke--an exercise so deficient in legal reasoning that it would fail a first-year law school class.

The blogger who originally wrote this (http://1fp.us/2006/10/04/6th-circuit-smackdown/) is obviously committed to respecting the institutions of government and the sanctity of the courts.

Of course, had a Republican judge struck down the program with a hastily written opinion, there would be clear aspersions on his or her credibility and intelligence. :rolleyes

After all, this isn't a partisan issue. Not at all.


Today, the 6th Circuit Court of Appeals took the first step (http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/10/04/national/a124823D86.DTL) toward the inevitable repudiation of Taylor's lawless usurpation of power by ordering that the program may remain in force while it considers the government's appeal

Is your blogger one of the judges on the 6th Circuit. It amazes me that anyone who deals in appeals, other than a judge, could characterize the merits of an appeal with phrases like "inevitable repudiation of Taylor's lawless usurpation of power." I don't recall that Judge Taylor created a case out of wholecloth so that she could decide the merits of the Surveillance Program for herself; my recollection is that someone challenged the program and asked her to decide in the first instance whether the program was constitutional or not. Funny how judges who decide issues lawfully placed before them are now "lawless usurpers" of power.

Oh, that's right; judicial activism depends entirely on whether the judge sides with conservatives or not.


Think about those criteria for a moment.

Thinking, sir.







What the Court is saying is that in all likelihood, the government's appeal will succeed, and that the public's interest in the program's continuation (i.e., being kept safe from terrorist attacks) outweighs the purported harm to terrorists and their contacts of having their communications monitored. It is extremely unlikely that anything will happen to overturn the Court's initial impression that Taylor's partisan opinion is wrong, and must be corrected.

I'd dispute that. But then again what the hell do I really know about appellate procedure in federal courts?

It's quite possible that the Sixth Circuit will strike down Judge Taylor's decision when it decides the merits of the appeal; it's also quite possible that it won't. Courts rarely signal their feelings about the merits of a case through the disposal of pre-briefing motions. In part, that's because there is no assurance that the judges who decide whether to grant or deny pre-briefing motions will be the judges who actually decide the appeal. For instance, in the 5th Circuit, it's a virtual certainty that the judges who deal with preliminary motions will not be on the panel that hears the arguments and reads the briefs on the merits. I had that happen to me recently with an appeal in that court; the parties filed a flurry of preliminary motions, all of which were decided by a particular panel, and even signed by a particular judge. When the panel assignment was revealed to the parties, none of the judges on the panel that decided the motions was assigned to hear the merits of the appeal. So, I'd be reluctant to derive any conclusions about how the Court views the ultimate merits of the appeal unless there's some evidence: (1) that briefs have already been filed (they have not) and the panel assigned; (2) that the Sixth Circuit has markedly different internal operating procedures than the Fifth; or (3) that all judges on the Sixth Circuit think alike.

Furthermore, the standards for granting relief like the government seeks here are tilted heavily in favor of the movant, even if the movant is the appellant in the court of appeals. The government essentially asked the court to maintain the status quo while the appeal is pending. In cases involving declaratory or injunctive relief, it's hardly remarkable that the appellate court, which hasn't had an opportunity to examine the merits of the arguments made by the parties, permits the status quo to prevail while the appeal is pending. Frankly, it's a safe way out for the court, for any number of reasons. Few who practice in the appellate courts, though, take an order maintaining the status quo as an indication of an "inevitable repudiation" of the trial court's opinion.


I realize that this blogger, er you, want to believe reversal is inevitable. And I'll concede that the judgment might ultimately be reversed for any number of reasons. But I don't think that anyone who is intellectually honest about the appellate process would divine that a result is certain from the disposition of a preliminary motion like this one.

[Yonivore]

The unanimous ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals gave little explanation for the decision. In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest.
I'm thinking they saw no merit to Judge Taylor's ruling. It's a smackdown. Deal with it.

And I do think Taylor made a case out of whole cloth.

[FromWayDowntown]

I'm thinking they saw no merit to Judge Taylor's ruling. It's a smackdown. Deal with it.

Lucky that you found a blogger to agree with you, eh?

[Mr. Peabody]

I'm thinking they saw no merit to Judge Taylor's ruling. It's a smackdown. Deal with it.

And I do think Taylor made a case out of whole cloth.

Are these your actual opinions or did you steal this post from Power Line Blog as well?

[FromWayDowntown]

I'll take another stab at "your" point, though. The government's burden in obtaining the relief granted by this order is not particularly onerous. It had to show that there was some likelihood that it would prevail on the merits -- you read the blogger's words and take from that a belief that the Court has expressed a preliminary view as to which side will ultimately prevail; I'm fairly certain that the Court has done nothing other than acknowledge that the government's appeal isn't frivolous. That is the consideration of the merits, and from afar, it strikes me as correct.

Having shown that its appeal is not frivolous, the government had to meet the second prong of the test: the potential damage to each side and the public interest served by permitting the status quo to prevail. In a case involving a declaratory judgment, it's not terribly remarkable that the Court would balance those equities in favor of the government.

It's curious to me that you're steadfastly unwilling to address either of those points. Perhaps there isn't a blogger who's taken them on as of yet. Hopefully, one will and then we can continue this discussion.

[Yonivore]

I'll take another stab at "your" point, though. The government's burden in obtaining the relief granted by this order is not particularly onerous. It had to show that there was some likelihood that it would prevail on the merits -- you read the blogger's words and take from that a belief that the Court has expressed a preliminary view as to which side will ultimately prevail; I'm fairly certain that the Court has done nothing other than acknowledge that the government's appeal isn't frivolous. That is the consideration of the merits, and from afar, it strikes me as correct.

Having shown that its appeal is not frivolous, the government had to meet the second prong of the test: the potential damage to each side and the public interest served by permitting the status quo to prevail. In a case involving a declaratory judgment, it's not terribly remarkable that the Court would balance those equities in favor of the government.

It's curious to me that you're steadfastly unwilling to address either of those points. Perhaps there isn't a blogger who's taken them on as of yet. Hopefully, one will and then we can continue this discussion.
Wow, you got all that from the, "judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest."

Because I get something totally different. When the San Francisco Gate quotes the judges as saying they stayed Taylor's ruling based on the "likelihood an appeal would succeed," I read that to mean the 6th Circuit unanimously believes in the "likelihood an appeal would succeed."

[Mr. Peabody]

Wow, you got all that from the, "judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest."

Because I get something totally different. When the San Francisco Gate quotes the judges as saying they stayed Taylor's ruling based on the "likelihood an appeal would succeed," I read that to mean the 6th Circuit unanimously believes in the "likelihood an appeal would succeed."

Nope, the language comes from the standard four-part federal test for granting temporary or preliminary relief on appeal.

Four-part test --
(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)

Nice try though.

[Yonivore]

Nope, the language comes from the standard four-part federal test for granting temporary or preliminary relief on appeal.

Four-part test --
(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)

Nice try though.
Well, then, there you go. It passed the test that there is a "substantial likelihood of success on the merits."

If the 6th Circuit didn't agree -- unanimously -- that it passed this test, why grant relief?

I rest my case. This law stuff ain't so hard now, is it?

[Mr. Peabody]

Well, then, there you go. It passed the test that there is a "substantial likelihood of success on the merits."

If the 6th Circuit didn't agree -- unanimously -- that it passed this test, why grant relief?

I rest my case. This law stuff ain't so hard now, is it?

Again, all that means is that the appeal is not frivolous. It does not mean that the trial court's decision will be overturned.

[Yonivore]

Again, all that means is that the appeal is not frivolous.
No, it means a little more than that. It means the appeal has (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)


It does not mean that the trial court's decision will be overturned.
No. But, it's a pretty good sign.

[FromWayDowntown]

If the 6th Circuit didn't agree -- unanimously -- that it passed this test, why grant relief?

Since you're usually such a stickler for details, please indulge me the opportunity to note that this order is issued by 3 of the 22 judges on the Sixth Circuit. Hardly 6th Circuit unanimity.


I rest my case. This law stuff ain't so hard now, is it?

Particularly when you misread things in your favor and don't really worry about what the law actually is.

Activist.

[FromWayDowntown]

No, it means a little more than that. It means the appeal has (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)

I'm not sure how on Earth the panel could have determined that the government is likely to win on the merits unless it chose to do so: without reading the record and without the benefit of extensive factual and legal briefing on the merits. The motion was likely about 10 double-spaced pages, most of which were assuredly committed to explaining why the government meets the test described above. It would be unfathomable to me that the government could do that and lay out all of the facts and law supporting its arguments to such an extent that the panel could have reached any conclusion on the merits, other than a conclusion that the appeal was not friviolous and, thus, had a substantial (as opposed to minimal) likelihood of success on the merits.

But, I'm not blessed with the keen insight into the minds of judges that Yonivore and his ghost writers apparently possess.


No. But, it's a pretty good sign.

Or, it's a pretty predictable ruling.

[Yonivore]

I'm not blessed with the keen insight into the minds of judges that Yonivore and his ghost writers apparently possess.
No, apparently, you're not.


Or, it's a pretty predictable ruling.
Or, maybe, just a waste of the court's time.

[xrayzebra]

Well if one of the parties on the phone is an American citizen then the law should be followed correct? You would need to get the warrant even if you have to wait until after the fact? What is so hard about that?

No that isn't correct. What part of INTERNATIONAL do you not understand.
DOMESTIC you "normally" need warrants. Read a little Texas law and you
will find that if one party, in Texas, agrees/participates in call it can be
recorded, WITHOUT, the other parties consent or knowledge. So called
phone tap laws vary and are very misleading. There is such a thing as a Pen
Register, law enforcement can get a warrant for one of those easily. Law
enforcement can obtain phone records easily and the customer doesn't have
to be notified for some time of this fact.

But when you put a call up INTERNATIONALLY expect to be listen to. NOT
just by this country but by any or all countries with the capability, which
most have. Most western nations run some sort of listening post all over
the world. Hell some even WITHIN their own countries with no legal
problems.

[Mr. Peabody]

I'm not sure how on Earth the panel could have determined that the government is likely to win on the merits unless it chose to do so: without reading the record and without the benefit of extensive factual and legal briefing on the merits. The motion was likely about 10 double-spaced pages, most of which were assuredly committed to explaining why the government meets the test described above. It would be unfathomable to me that the government could do that and lay out all of the facts and law supporting its arguments to such an extent that the panel could have reached any conclusion on the merits, other than a conclusion that the appeal was not friviolous and, thus, had a substantial (as opposed to minimal) likelihood of success on the merits.


Maybe, the government attached some posts from the Power Line Blog as exhibits to the motion.

[George Gervin's Afro]

No that isn't correct. What part of INTERNATIONAL do you not understand.
DOMESTIC you "normally" need warrants. Read a little Texas law and you
will find that if one party, in Texas, agrees/participates in call it can be
recorded, WITHOUT, the other parties consent or knowledge. So called
phone tap laws vary and are very misleading. There is such a thing as a Pen
Register, law enforcement can get a warrant for one of those easily. Law
enforcement can obtain phone records easily and the customer doesn't have
to be notified for some time of this fact.

But when you put a call up INTERNATIONALLY expect to be listen to. NOT
just by this country but by any or all countries with the capability, which
most have. Most western nations run some sort of listening post all over
the world. Hell some even WITHIN their own countries with no legal
problems.

So the govt can listen to a call that originates in the states without any type of oversight? Sorry but I assumed that I had some basic privacy rights when I talk to my brother in Italy but I guess if Bush decides to listen to my call for no other reaon than he wants than all is well in ray's world. sorry But I like my calls to be private and if the govt feels the need to listen they better get a warrant..

[FromWayDowntown]

No, apparently, you're not.

Since you're so certain that this is a signal about a merits-decision, I'm relieved to know that your comfortable with judges making merits decisions before any briefs have been filed.

Where I'm from, that's called "judicial activism."

Unless, of course, the decision goes a conservative's way.

[Yonivore]

Since you're so certain that this is a signal about a merits-decision, I'm relieved to know that your comfortable with judges making merits decisions before any briefs have been filed.
Maybe her ruling was just that fucked up FWD.

[FromWayDowntown]

Maybe her ruling was just that fucked up FWD.

Unless the government fully briefed its side of the argument -- which I seriously doubt it did in the limited confines of an appellate motion -- how would the Court know that without bringing personal biases and outside information to bear on the merits of the case? If the judges have heard about the case and have previously decided that the decision was wrong, without the benefit of any briefing or argument, it's acting beyond its judicial capacity. I'm sure I can find a post in which you decry such actions as activism. Why not here?

My guess is that the distinction comes entirely from the nature of the court's ruling on this motion, which again, is not terribly surprising.

[Yonivore]

Unless the government fully briefed its side of the argument -- which I seriously doubt it did in the limited confines of an appellate motion -- how would the Court know that without bringing personal biases and outside information to bear on the merits of the case? If the judges have heard about the case and have previously decided that the decision was wrong, without the benefit of any briefing or argument, it's acting beyond its judicial capacity. I'm sure I can find a post in which you decry such actions as activism. Why not here?

My guess is that the distinction comes entirely from the nature of the court's ruling on this motion, which again, is not terribly surprising.
So, how could they rule in favor of the government based on a finding the appeal had a "substantial likelihood of success on the merits," if they don't know what the merits are?

I say it's because Taylor's ruling is just that fucked up. I think I saw a law professor put it in exactly those terms back when she issued it.

[FromWayDowntown]

So, how could they rule in favor of the government based on a finding the appeal had a "substantial likelihood of success on the merits," if they don't know what the merits are?

I say it's because Taylor's ruling is just that fucked up. I think I saw a law professor put it in exactly those terms back when she issued it.

So now you're willing to listen to what a law professor thinks? or just what a law professor who happens to agree with you?

There's a huge difference between deciding the merits of the appeal and deciding whether there's a substantial likelihood of success on the merits. Again, the latter seems to urge the party to prove that its appeal is not frivolous and that it's arguments are colorable; the former requires adherence to strict burdens of proof and the application of standards of review to the governing facts and law.

Your seizure upon "substantial" in this context is identical to your fascination with the word "unreasonable" in your Fourth Amendment arguments. You don't seem willing to acknowledge that "unreasonable" in Fourth Amendment terms has particular legal meanings that exceed what you presume might be society's view of "unreasonable." Here, you presume that "substantial likelihood of succes on the merits" means that the Court has already considered the merits of the appeal in some depth and has reached preliminary conclusions about how the case will eventually be decided. I dispute that assertion and base that dispute not on my sense of what the terms mean, but upon experience in dealing with those terms in other contexts. Like the line in The Princess Bride, I say to you "I do not think that means what you think it means."

The government has undoubtedly shown some of its cards and presented a colorable argument in support of its position that Judge Taylor is wrong. Like I say, I don't believe that it's burden was terribly onerous to get the relief afforded by the Court's order. But the 6th Circuit has yet to hear the whole story; until it does, I'm not willing to opine about the likelihood that it will take any particular tack in deciding the merits of the case. Like I say, it might very well be that the government will eventually prevail on the merits. But this order does not signal that such a result is more likely now than it was previously.

[Yonivore]

So now you're willing to listen to what a law professor thinks? or just what a law professor who happens to agree with you?
I made that up.


There's a huge difference between deciding the merits of the appeal and deciding whether there's a substantial likelihood of success on the merits. Again, the latter seems to urge the party to prove that its appeal is not frivolous and that it's arguments are colorable; the former requires adherence to strict burdens of proof and the application of standards of review to the governing facts and law.
There may be a huge difference but, nonetheless, their ruling means they found there was a "substantial likelihood of success on the merits." Yes or no?


Your seizure upon "substantial" in this context is identical to your fascination with the word "unreasonable" in your Fourth Amendment arguments. You don't seem willing to acknowledge that "unreasonable" in Fourth Amendment terms has particular legal meanings that exceed what you presume might be society's view of "unreasonable." Here, you presume that "substantial likelihood of succes on the merits" means that the Court has already considered the merits of the appeal in some depth and has reached preliminary conclusions about how the case will eventually be decided. I dispute that assertion and base that dispute not on my sense of what the terms mean, but upon experience in dealing with those terms in other contexts. Like the line in The Princess Bride, I say to you "I do not think that means what you think it means."
I didn't choose the words, they did. And, if you tell me they have a "substantial likelihood of success on the merits," then you mean they have a "substantial likelihood of success on the merits." No? If not, what do you mean?

And, regarding the fourth amendment, at some point the term "unreasonable" has to mean "unreasonable" in the sense that the search or seizure was "not reasonable" according to some standard of "reasonableness." No?

Fucking lawyers...and wannabe lawyers.


The government has undoubtedly shown some of its cards and presented a colorable argument in support of its position that Judge Taylor is wrong.
Yeah, they probably showed them Judge Taylor's ruling.


Like I say, I don't believe that it's burden was terribly onerous to get the relief afforded by the Court's order. But the 6th Circuit has yet to hear the whole story; until it does, I'm not willing to opine about the likelihood that it will take any particular tack in deciding the merits of the case. Like I say, it might very well be that the government will eventually prevail on the merits. But this order does not signal that such a result is more likely now than it was previously.
And, like I said, Taylor's ruling was fucked up and the 6th Circuit knows that.

[FromWayDowntown]

You're marvelously unincumbered by the law.

[Yonivore]

You're marvelously unincumbered by the law.
Thank you.

What'cha wanna bet the eventual outcome is that Taylor's ruling is overturned because it's fucked up?

[FromWayDowntown]

Thank you.

What'cha wanna bet the eventual outcome is that Taylor's ruling is overturned because it's fucked up?

I concede now (and even conceded when Judge Taylor's opinion issued) that there are serious logical problems with the opinion -- I don't think anyone disputes that. The question is whether there is a rationale within the opinion that can save it's holding and that is something I don't know.

It wouldn't shock me that her opinion is reversed. I'm fairly certain, though, that such a conclusion in this case will not be dispositive in other litigation seeking to demonstrate the unconstitutionality of the Administration's program.

[Yonivore]

I concede now...
Coulda stopped there. Thanks.

[FromWayDowntown]

Coulda stopped there. Thanks.

You can be certain that my concession has nothing whatsoever to do with your argument.

[Yonivore]

You can be certain that my concession has nothing whatsoever to do with your argument.
Don't worry, counselor, I am certain.

As certain as I am about this ruling being overturned because it is fucked up...er, because there are "serious logical problems with the opinion."

[FromWayDowntown]

For what it's worth, since blog reliance (attributed or otherwise) is so chic around here:


Sixth Circuit Stays Judge Taylor's Order: The Sixth Circuit has issued a stay pending appeal of Judge Taylor's order requiring the government to shut down the NSA domestic surveillance program. I think it's hard to read too much into that, although note that the Sixth Circuit standards do incorporate one aspect of the merits: the stay indicates that this particular panel thought that DOJ had raised at least "serious questions" about the correctness of Judge Taylor's order shutting down the program.

Volokh Conspiracy (http://volokh.com/archives/archive_2006_10_01-2006_10_07.shtml#1160005026)

Here is the Sixth Circuit's order (http://www.ca6.uscourts.gov/internet/documents/Order062095_000.pdf)

[RandomGuy]

Haven't we already beaten this one to death?

I seem to remember another thread where the underlying legal reasoning was a bit more complex than Yoni's oversimplification let on.

[FromWayDowntown]

Despite the 6th Circuit's "unanimous" conclusion back in November that Judge Taylor's decision was "just that fucked up," the Court today reversed Judge Taylor's decision by a 2-1 vote with 3 separate opinions issued along fairly ideological lines.

Curiously, for a case in which the merits were so crystal clear to Yonivore, the Court never did reach the merits, deciding instead that the inherent problem with challenging the constitutionality of the program -- the certainty that a person might have standing to challenge in the first place -- became the basis for the court's decision. As such, we still know nothing (from a judicial standpoint) about whether the program is unconstitutional; we just know that it's fairly significantly insulated from challenges because of its nature.

Judge Alice Batchelder, a Bush 41 appointee, wrote for the court and held that the plaintiffs lacked standing to challenge the program under these circumstances. She was joined by Judge Julia Smith Gibbons, a Bush 43 appointee, who wrote a concurrence. The dissenting opinion was written by Judge Ronald Lee Gilman, a Clinton appointee, who explained his belief that demonstrating standing was about the most difficult part of a challenge for any potential plaintiff.

But at least we can be sure that this is not the end of the case:

All the rest of this is bogarted from Volokh Conspiracy (http://volokh.com/archives/archive_2007_07_01-2007_07_07.shtml#1183733342) this morning (I've bolded statements that were interesting to me):

Plaintiffs Lack Standing to Challenge NSA Surveillance:

Today the U.S. Court of Appeals for the Sixth Circuit held that none of the plaintiffs in American Civil Liberties Union v. National Security Agency have standing to challenge the program and dismissed the case. Judge Batchelder wrote the opinion for the court. Judge Gibbons delivered a separate concurring opinion, and Judge Gilman dissented. I can virtually guarantee that this is not the last we have heard of this case.

UPDATE: From Judge Batchelder's opinion for the court:


in crafting their declaratory judgment action, the plaintiffs have attempted (unsuccessfully) to navigate the obstacles to stating a justiciable claim. By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm — this is typical of declaratory judgment and perfectly permissible. But, by proposing only injuries that result from this refusal to engage in communications (e.g., the inability to conduct their professions without added burden and expense), they attempt to supplant an insufficient, speculative injury with an injury that appears sufficiently imminent and concrete, but is only incidental to the alleged wrong (i.e., the NSA’s conduct) — this is atypical and, as will be discussed, impermissible.

Therefore, the injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is imminent and concrete (i.e., the burden on professional performance) does not support a declaratory judgment action.



The disposition of all of the plaintiffs’ claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory. For this reason, I do not reach the myriad other standing and merits issues, the complexity of which is ably demonstrated by Judge Batchelder’s and Judge Gilman’s very thoughtful opinions, and I therefore concur in the judgment only.

And from Judge Gilman's dissent:



My colleagues conclude that the plaintiffs have not established standing to bring their challenge to the Bush Administration’s so-called Terrorist Surveillance Program (TSP). A fundamental disagreement exists between the two of them and myself on what is required to show standing and whether any of the plaintiffs have met that requirement. Because of that disagreement, I respectfully dissent. Moreover, I would affirm the judgment of the district court because I am persuaded that the TSP as originally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).

And:


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. Mootness is not a problem because of the government’s position that it retains the right to opt out of the FISA regime whenever it chooses. Its AUMF and inherent-authority arguments are weak in light of existing precedent and the rules of statutory construction. Finally, when faced with the clear wording of FISA and Title III that these statutes provide the “exclusive means” for the government to engage in electronic surveillance within the United States for foreign intelligence purposes, the conclusion becomes inescapable that the TSP was unlawful. I would therefore affirm the judgment of the district court.

[FromWayDowntown]

We started with Yonivore blasting Judge Taylor for having made a partisan decision. I'm sure, though, that Judges Batchelder and Gibbons acted beyond any partisan concerns with respect to this matter.

[Yonivore]

All that to say the judge made a fucked up call because the plaintiffs had no standing? And, as the two majority opinions point out, they had no standing because they can neither prove they were subject to the program or were harmed by it.

Did I narrow it down for you?

[FromWayDowntown]

All that to say the judge made a fucked up call because the plaintiffs had no standing? And, as the two majority opinions point out, they had no standing because they can neither prove they were subject to the program or were harmed by it.

Did I narrow it down for you?

But you told me in November that Judge Taylor's decision was "so fucked up" and partisan that the unanimous Sixth Circuit had decided that the government would win on the merits. Now 3 judges on the circuit have divided on the issues presented with the majority deciding the case without ever considering the merits.

I don't disagree with you that the standing issue becomes a major impediment to challenging the program since the government won't reveal who are the targets of the program and only those who are targets of the program would likely have standing. I'm not sure it bespeaks a tremendous confidence in the program's constitutionality that it is, in essence, entirley insulated from meaningful constitutional challenge.

Unfortunately, that tends to be the way that liberties are eroded.

[Yonivore]

But you told me in November that Judge Taylor's decision was "so fucked up" and partisan that the unanimous Sixth Circuit had decided that the government would win on the merits. Now 3 judges on the circuit have divided on the issues presented with the majority deciding the case without ever considering the merits.
Remember this:


Nope, the language comes from the standard four-part federal test for granting temporary or preliminary relief on appeal.

Four-part test --
(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)
It was from that post I got the idea the decision would be overturned based on the merits of the case. But, you're right, the panel didn't even have to decide on the merits...because, the plaintiffs didn't even have standing. That's pretty fucked up, if you ask me.


I don't disagree with you that the standing issue becomes a major impediment to challenging the program since the government won't reveal who are the targets of the program and only those who are targets of the program would likely have standing. I'm not sure it bespeaks a tremendous confidence in the program's constitutionality that it is, in essence, entirley insulated from meaningful constitutional challenge.
The government has already stated publicly that the NSA programs only targets communication that originates (or terminates) overseas, involving suspected terrorists. And, since the plaintiffs cannot produce any evidence they were targeted by the NSA program, I'm not sure how anyone could argue they have standing when they don't even meet the criteria set out by the goverment as those being subject to the NSA surveillance programs. Where on earth did they even get the idea they might be surveilled by the NSA?

I certainly have never had the occassion to believe the NSA was surveilling my communications.

The only way these plaintiffs would have standing is if they were communicating with suspected terrorists overseas. Is that their claim? Because, if not, what's the problem? And, if so, I could care less if their communications were intercepted.

And, before you jump on that, it is my understanding FISA doesn't apply to communications involving domestic telephone calls if they are surveilled as a consequence to surveillance of an overseas phone number from a point outside the U.S. After all, how would the NSA possibly know who the terrorists are calling or who will be calling the terrorists?

Further, it is my understanding that FISA warrants were requested when domestic phone numbers were detected in such NSA surveillance and the NSA wanted to further surveil those telephones.

I think once you get beyond the standing issue, unless the plaintiffs are willing to admit to communication with suspected terrorists abroad, you also lose on the merits.


Unfortunately, that tends to be the way that liberties are eroded.
Okay, same question. Name one liberty you've lost since George W. Bush took office?

Now, as for the three opinion excerpts you posted:



in crafting their declaratory judgment action, the plaintiffs have attempted (unsuccessfully) to navigate the obstacles to stating a justiciable claim. By refraining from communications (i.e., the potentially harmful conduct), the plaintiffs have negated any possibility that the NSA will ever actually intercept their communications and thereby avoided the anticipated harm — this is typical of declaratory judgment and perfectly permissible. But, by proposing only injuries that result from this refusal to engage in communications (e.g., the inability to conduct their professions without added burden and expense), they attempt to supplant an insufficient, speculative injury with an injury that appears sufficiently imminent and concrete, but is only incidental to the alleged wrong (i.e., the NSA’s conduct) — this is atypical and, as will be discussed, impermissible.
Here's what I read from that.

You can't remove the opportunity for the NSA to violate the law and expect to seek relief based on the fact you've harmed yourself by refraining from acts you believed would subject you an NSA violation of the law...particularly if you're not able to demonstrate the NSA would violate the law, given the opportunity.

In other words, you can't say the NSA harmed you because of something you did voluntarily, (refraining from communications that you believe were subject to surveillance, even if you have no proof that such communication would be subject to surveillance by the NSA unless, of course, your communications meets the publicly stated objectives of the NSA surveillance program of intercepting communications to and from overseas suspected terrorists.)

They were going to try the proverbial, "So, when did you quit beating your wife," trick on the NSA -- if, they'd of been successful in getting it to trial.



The disposition of all of the plaintiffs’ claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP. Without this evidence, on a motion for summary judgment, the plaintiffs cannot establish standing for any of their claims, constitutional or statutory. For this reason, I do not reach the myriad other standing and merits issues, the complexity of which is ably demonstrated by Judge Batchelder’s and Judge Gilman’s very thoughtful opinions, and I therefore concur in the judgment only.
In other words, I'm not getting into the merits because these yahoos don't even have standing.

And, finally:



My colleagues conclude that the plaintiffs have not established standing to bring their challenge to the Bush Administration’s so-called Terrorist Surveillance Program (TSP). A fundamental disagreement exists between the two of them and myself on what is required to show standing and whether any of the plaintiffs have met that requirement. Because of that disagreement, I respectfully dissent. Moreover, I would affirm the judgment of the district court because I am persuaded that the TSP as originally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).
So-called? I am persuaded? Sound's a little miffed, if you ask me. It certainly didn't carry the same sense of sobriety as did the other two excerpted opinions. Did the good judge go on to state why he was "persuaded" the TSP was in violation of the FISA?


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. Mootness is not a problem because of the government’s position that it retains the right to opt out of the FISA regime whenever it chooses. Its AUMF and inherent-authority arguments are weak in light of existing precedent and the rules of statutory construction. Finally, when faced with the clear wording of FISA and Title III that these statutes provide the “exclusive means” for the government to engage in electronic surveillance within the United States for foreign intelligence purposes, the conclusion becomes inescapable that the TSP was unlawful. I would therefore affirm the judgment of the district court.
What I find particularly amusing about this whole line of reasoning is that it is all built upon partisan distrust, partisan supposition, and partisan rhetoric heard in all corners of the liberal left agenda to undermine the president and his attempts to prosecute the war on terror.

There is not one instance of the government ever conceding it has wiretapped U. S. Citizens' communications without a FISA Warrant. The closest you're going to get is a statement, which -- to my mind is perfectly consistent with FISA -- that they've surveilled overseas communications, some of which originated with or led to persons on U.S. soil (whether or not they were citizens is unknown).

So, tell me, If my Aunt Mabel calls a suspected terrorist in Afghanistan (whom the NSA happens to be surveilling) is the surveillance supposed to be aborted when it is learned the call originated in the U.S.?

And, if you're answer is, they should seek a warrant, what if that is the only contact between my Aunt Mabel and the alleged terrorist and the contents of the un-warranted surveillance conclude there is no meaningful intelligence to be gained from listening in on Aunt Mabel's phone?

[Yonivore]

Here's the 65 page decision (http://www.ca6.uscourts.gov/opinions.pdf/07a0253p-06.pdf)