Partisan judge smackdown!

[FromWayDowntown]

Maybe her ruling was just that ed 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 ed 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 ed 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?

ing 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 ed up and the 6th Circuit knows that.

[FromWayDowntown]

You're marvelously unin bered by the law.

[Yonivore]

You're marvelously unin bered by the law.

Thank you.

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

[FromWayDowntown]

Thank you.

What'cha wanna bet the eventual outcome is that Taylor's ruling is overturned because it's ed 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 uncons utionality 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 ed 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

Here is the Sixth Circuit's order

[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 ed 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 cons utionality 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 uncons utional; 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 cir stances. 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 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, cons utional 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 le 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 ed 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 ed 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 ed 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 cons utionality that it is, in essence, entirley insulated from meaningful cons utional 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 ed 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 ed 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 cons utionality that it is, in essence, entirley insulated from meaningful cons utional 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, cons utional 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 le 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