Info/Law

Bill and I wrote about the government’s program of warrantless surveillance of certain electronic communications a while ago. Judge Anna Diggs Taylor, who sits on the federal district court here in Detroit, issued a decision finding the program (dubbed the “Terrorist Surveillance Program” by the Bush administration – legal argument by nomenclature?) unconstitutional. The Sixth Circuit Court of Appeals issued a stay of her order that would have shut down the surveillance, pending arguments. Now the appellate court is hearing those arguments.

The Sixth Circuit has been brain-dead on copyright, so it was reassuring that the judges focused on what I believe to be the two key issues. First, do the plaintiffs have standing? This is a hard puzzle – there’s no guarantee that their communications were monitored (and the government isn’t saying), so it’s not clear that they have a real stake in the case. However, as their attorney argued in response to close questioning by the judges, it’s difficult to find plaintiffs with concrete standing since the targets of surveillance are secret, and classified. The court could dispose of the case on these grounds, but that would be a cop-out.

Second, does the Bush administration’s voluntary decision to have the federal court set up by the Foreign Intelligence Surveillance Act oversee the program cause the case to be moot? After all, even Congress is getting some information about this new approach. This argument is also flawed – the government hasn’t conceded the underlying legal question (whether the executive branch has inherent authority for this surveillance, or must follow FISA), and could easily opt to end oversight whenever it chooses. Constitutional scholars have a term for this problem – it’s a case “capable of repetition yet evading review.” (Think abortion – by the time a court hears a woman’s suit about whether she can have one, the issue is moot, but future women will face the same issue.) Again, the court would duck the real controversy by dismissing on these grounds.

I found Judge Taylor’s opinion unconvincing – long on rhetoric, short on careful legal analysis. (Other views, pro and con…) The FISA issue presents hard questions of the balance of power among our branches of government and of the scope of the statute. The standing question is similarly difficult. So, there seem to be two good options for the Sixth Circuit (in my opinion). First, the court could remand the decision to Judge Taylor in light of the changed circumstances – vacating the opinion, and providing some guidance about what questions she should address (more thoroughly). Second, the court could take up these questions itself; additional fact-finding by the District Court doesn’t seem terribly necessary here since most of the issues are about legal interpretation, not figuring out the contours of the program. The latter option has the virtue of being more rapid and potentially more definitive; the former is more pragmatic and gives Congress and the administration more time to unwind these issues without relying on judges to resolve hard questions of institutional power and competence.

A final point: treat analyses (including this one!) of the case, and Judge Taylor’s opinion, with great care. There’s a lot of rhetoric out there and relatively little close legal analysis. It’s not helpful to declare ringingly that the program violates our constitutional rights, or threatens a program certain to have saved lives.  It is helpful to explicate FISA or explore the balance between executive and legislative authority. Beware blowhards.
I’d love comments on what you think the Sixth Circuit should do.

Filed under: Court Decisions, ISP, Intermediaries, Internet & Society, NSA, Privacy, Security