Sunday, July 08, 2007

The Latest on Warrantless Surveillance

(NOTE: I was unable to link directly to the relevant cases and am therefore linking instead to sites that contain such links).

The Sixth Circuit Court of Appeals has now struck down the trial judge's ruling in ACLU v. NSA finding the Administration's program of warrantless surveillance unconstitutional. The Plaintiffs' standing to sue was always questionable, since none of them had any actual evidence that they had been wiretapped without a warrant. Instead, various international lawyers, journalists and scholars whose professions brought them into contact with terrorism suspects brought suit claiming the program had a "chilling effect" on their conversations. That being the case the Court, by a 2-1 majority, dismissed the case for lack of standing without making any decision the merits about the Administration's actions. Only Judge Ronald Lee Gilman, dissenting, found standing and expressed the opinion that the Administration acted illegally. Reading between the lines, however, the other two judges do drop hints as to how they might have ruled had a plaintiff with standing appeared.

Plaintiffs made claims under the First Amendment, Fourth Amendment, Separation of Powers, FISA, Title III (the law governing domestic criminal warants) and the Administrative Procedures Act (APA). Judge Alice Batchelder, writing the majority opinion, addresses each of the plaintiffs' claims at length to explain why a person who cannot prove warrantless wiretapping has no standing to make it. Many of her opinions are perfectly reasonable, but others are disturbing.

She begins with a tediously long (pages 11-22) analysis as to why there is no claim for violation of First Amendment rights of free speach and association. A mere "chilling effect" on conversation does not constitute injury in fact. Furthermore, it is not the fear of warrantless surveillance, but the fear of any surveillance that causes the "chill," and requiring warrants would do nothing relieve it. The First Amendment claims were always weak, and Batchelder's analysis seems reasonable except for one sentence (p. 20), "[T]here is no evidence in the record from which to presume the information collected by the NSA via warrantless wiretapping is not complying with, or even exceeding, FISA's restrictions on the acquisition, retention, use, or disclosure of this information (i.e., the minimization requirements)." This seems implausible. If the NSA is meeting or exceeding all minimization requirements, why not just get a warrant?

The Fourth Amendment claim she finishes off in less than a page. Absent proof they have personally been wiretapped without a warrant, plaintiffs have no Fourth Amendment claim (p. 23). Batchelder makes a comment (pp. 23-24) on the separation of power claim that raises a red flag, "This . . . accusation . . . presupposes that the Constitution gives Congress the authorityto impose limits on the President's powers under the present circumstances." She does not rule that Congress does not have that authority, only that the plaintiffs lack standing because they cannot prove they were wiretapped. But that comment sounds like a broad hint as to how she would rule if the issue of Congress' constitutional authority to pass FISA ever came before her.

Batchelder also makes quick work (pp. 27-30) of the APA and Title III claims by pointing out that neither statute applies in this case. It is her statements on FISA that are the most disturbing. FISA applies to "foreign intelligence information," including international terrorism, and since Attorney General Gonzales says this program was limited to terrorists, that settles that question. Furthermore, FISA has a specific legal definition of "electronic surveillance," and the plaintiffs cannot prove the NSA's program involved anything within that legal definition (p. 30). Even though Title III claims to be the exclusive means for domestic wiretapes and FISA claims to be the exclusive method for foreign wiretaps, that does not mean that all wiretaps are covered by one or the other (pp. 32-33). According to Batchelder, there are any number of wiretape outside any legal regulation so long as FISA does not specify them. She also holds that, since FISA allows only claims for money damages and not for injunctive relief (p. 31), she cannot enjoin (order) the government to obey the law. Although Batchelder dismisses the case for lack of standing, her ruling contains strong hints that if a plaintiff with standing appeared before her, she would indulge every inference in favor of the government and quite probably find FISA unconstitutional.

Judge Julia Smith Gibbons made a separate concurrence (pp. 36-40), agreeing that the plaintiffs lack standing, but declining to address any of their individual claims (although she finds both other judge's opinions "able.") Why? Presumably because she does not agree with some things Judge Batchelder said on the subject. (One hopes the claim that there is a wide range of wiretapping not regulated by any law is one of them). Perhaps Gibbons is hinting here that if a plaintiff with standing appeared before her, she would treat the claim more favorably than Batchelder.

Finally, Judge Ronald Lee Gilman dissented. His opinion was that the plaintiffs were were attorneys talking to clients overseas had standing to sue. As attorneys, they represented terrorists, talked to terrorist clients and witnesses, and visited terrorist websites. These activities were protected by the attorney-client privilege. Gilman believes that warrantless surveillance could infringe on this privilege in a way that surveillance with a FISA warrant could not because of the "minimization procedures" FISA requires, including the protection of any privileged information overheard. To Batchelder's speculation that the NSA might have met or exceeded the FISA minimization requirements, Gilman offers the words of Administration members involved in the program, that it had a "softer trigger" than FISA, and that the Executive Order on acquisition, retention and dissemination of information (Exective Order 12333) does not protect privileged communications (pp. 49-50). Unless lawyers know such minimization procedures are being used to protect privileged communications, they cannot safely talk to their clients over the telepone (pp. 50-51).

He refutes the contention that some wiretapping falls outside either Title III or FISA, but pointing out that both laws make clear they are the "exclusive means" (not just the exclusive statutory means) of electronic surveillance, and that Title III expressly says that its procedures and FISA's procedures are the exclusive means of wiretapping allowed. Even Attorney General Gonzales has acknowledged that FISA requires a warrant for the type of surveillance being done (pp. 54-56). The claim is not moot, even though the Administration has now agreed to seek a warrant with the FISA court for its surveillance because the President reserves the right to return to warrantless surveillance any time he wants (pp. 56-57).

As for the plaintiffs' causes of action, Gilman does not address their constitutional claims, commenting that their statutory claims are stronger (p. 58). (Although he denies it, this probably means he would not rule in favor of the constitutional claims, given the chance). He repeats the endlessly given explanation why the AUFM did not repeal FISA (a specific statute trumps a general one; FISA has provisions for wiretapping during a war; the Administration sought changes to FISA after the AUFM passed and did not seek approval for its program because it did not expect to get it) (pp. 59-61).

Only at the very end (pp. 62-63) does he address the argument that FISA unconstitutionally infringes on the President's "inherent authority" to warrantless wiretap, and he does not address it at length or in depth. His argument is that the Constitution divides war making powers between the President and Congress. Congress has regulated the President's war making authority before. Under the famous Youngstown decision, the President's wartime powers are at their highest when he acts with authorization of Congress, intermediate (but still, in war decisions, generally lawful) if he acts when Congress is silent, and weakest if he acts against the will of Congress. "Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting on the subject" (i.e., by finding the law unconstitutional). The government relies on In re Sealed Case (which I have also addressed) to argue his "inherent authority." Gilman dismisses this on the grounds that it is dictum, based on pre-FISA cases, and that all post-FISA cases addressing a challenge to the Act's constitutionality have upheld it.

This is good enough for a dissent on the issue of standing. But if any court is going to make a binding decision upholding FISA against the Bush Administration, it is going to have to make a stronger argument than that. There are two more cases on the subject pending.

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