Wednesday, August 23, 2006

Pondering ACLU v NSA

I chose to wait on responding to this till I'd actually taken time to read it. Oh, and read the supporting documents for it. I like to think it makes my untrained (IANAL) opinion my own more than that of the various pundits regurgitated.

Before I comment on the opinion, I'm going to note the one extraordinary facet that seems frequently ignored. That's the absence of the defendant's (the government defending the NSA) position. The reason is simple - the government failed to speak.

The ACLU representing all these folk sued. The government said the case should be dismissed due to lack of standing and the secrecy issue (not a law, a judicial precedence). Almost simultaneously, the ACLU asked for summary judgement on damages due to violation of FISA and the constitution. The judge said to both parties, "Show me." The government showed the judge some documents on the subject, but said (paraphrased) "the fact that some of the documents are secret are sufficient for the secrecy issue, and the lack of standing is self-evident." The plaintiffs meanwhile provided briefs defending the standing and countering the secret, and further supporting the summary judgements. The judge asked the government to respond. Deadline came, judge ended order (gave government a pass despite deadline missed) and issued new request for a brief. Again, government didn't respond. Judge issued intent - not ruling - and asked government to at least respond orally. Again, government passed. So the judge issued a judgement based on the facts provided.

Now, in cases involving common people like you and I, if we decline to rebut the other guy's allegations in court, the judge has no opinion but to assume we're silent because we CAN'T rebut them - they're true in all particulars as interpreted by the other guy.

With that in mind, the whole question of how ugly the writing is in the decision becomes VERY secondary. What the judge wrote, basically, was:
One element of the plaintiffs' suit is dismissed, but the secrecy issue does not apply to the remainder; the defendants have standing; the TSP (The Secret Program) causes harm, and because it violates the FISA and the first and fourth amendments of the US Constitution the remedy includes stopping the TSP.

Now, here's where we get the really big gamble by the DOJ. They've appealed, and the sixth will almost certainly accept the appeal for review. The question - the gamble - is whether they'll take it "de novo" or "on the record". The government's hoping for "de novo". Heck, an awful lot of pundits are saying "of course" the sixth will do it that way. But "de novo" is the unusual way. Normally an appeal is: given what the court we're appealing faced, the decision was wrongly decided because of misreading/ignoring/accepting... The problem - the risk - the government takes is that they didn't present a case. Now here's the thing. If it's 'de novo', I would bet on the appeal to the supreme court coming from the ACLU. If it's 'on the record' it'll be the DOJ that appeals upward.

My gut feeling is that the appeals court hears the case 'on the record'. The reason is the fact that Judge Taylor went overboard in trying to get the government to give its case. Yes, it's a significant case - if upheld it sets a defacto basis for impeachment of the president of the united states (violation of FISA is a felony). So the 'de novo' option is possible, and had the judge followed normal procedures I'd lean toward expecting that. But THREE OFFERS PLUS ORAL refused? Bah. And this completely sets aside the tone of the government attorneys. Supercilious comes to mind - We're here, but it really doesn't matter as we win regardless. Sneer. shudder. Oh - I'll also make a side bet on that internal bet, which is that regardless of the mode it's heard 'en banc' - by the whole appeals court instead of (or possibly subsequent to) the normal three-judge panel.

Now, what happens when it reaches the supreme court is another question. Frankly, I think the DOJ would rather it not get there based on the most recent 'big decisions'. The court came within a hairs breadth of accusing the current administration of war crimes, and specifically (and as bluntly as Taylor in this case) said the GC3 (Geneva Conventions common section 3) applies. Betcha they're even more adamant about the first and fourth amendments of the United States.


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