Sixth Circuit Blog

Sixth Circuit Stays Implementation of Judge Taylor's Order Permanently Enjoining NSA Warrantless Surveillance Program

We have previously posted on the August 17 opinion by Judge Anna Diggs Taylor (E.D. Mich.) declaring the NSA's domestic wiretap and surveillance program unconstitutional and in violation of FISA and Title III.  Her decision has been the subject of considerable criticism from political as well as legal circles.  The Government appealed Judge Taylor's ruling to the Sixth Circuit (Case No. 06-2095).

On October 4, a panel of the Court (Circuit Judges Batchelder, Gilman and Gibbons) issued an Order unanimously granting the Government's request for a stay of Judge Taylor's injunction pending the appeal.  Thus, the district court order enjoining the Government from conducting the NSA Terrorist Surveillance Program ("TSP") in any way that would contravene FISA and Title III, "including . . . conducting warrantless wiretaps of telephone and internet communications," was stayed pending the outcome of the Sixth Circuit's consideration of the merits.

While many commentators have suggested that the import of the Court's stay is that it supposedly presages the panel's intention to reverse Judge Taylor on the merits, the most intriguing aspect of the panel's Order is its use of the standard for stays pending appeal taken from Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), and Michigan Coalition of Radioactive Material Users v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

The Grutter/Michigan Coalition test allows a stay to be granted, even if the party requesting the stay has not demonstrated the traditional "substantial likelihood" of success on the merits, if it can show that the irreparable harm to it from the underlying order absent a stay would outweigh any potential harm to the nonmoving party if the stay were granted.  In this fashion, the greater the harm that is shown, the less likely a party's success on the merits has to be.  Thus, the degree of "success on the merits" that must be demonstrated is "inversely proportional to the harm."  If the harm to a moving party "decidedly outweighs" any potential harm to the nonmoving party if a stay is granted, then all the moving party must show at a minimum are "serious questions going to the merits" rather than a "substantial likelihood of success on the merits."

The panel found the more lenient Grutter/Michigan Coalition standard "has been met in this case."  That does not necessary signal the panel's conclusions on the merits beyond findng that the appeal raises serious questions regarding the merits.  It more probably reflects the panel's determination that the potential harm to the Government's efforts to fight terrorism from denying the stay and leaving the injunction against the TSP in force decidedly outweighs any harm to the plaintiffs or the public from granting the stay.  The panel's Order granting a stay pending appeal is not necessarily the broader prediction of the eventual outcome of the case that critics of Judge Taylor's opinion wish it were.

More on Domestic Spy Program

Lyle Denniston has this post in Scotusblog on the NSA spy program declared unconstitutional last week by Judge Anna Diggs Taylor.  Our post on the decision can be found here.

Scotusblog also has a round-up of other commentaries on the NSA wiretap ruling here.

Finally, Denniston provides his analysis of U.S. District Judge Gladys Kessler's 1742-page ruling on August 17 that the tobacco industry violated RICO in this post also in Scotusblog.

Domestic Spying Program Declared Unconstitutional; Government Plans Appeal to Sixth Circuit

In a strongly-worded and broadly-based rebuke of a cornerstone of the Administration's war on terror, U.S. District Judge Anna Diggs Taylor today issued an opinion declaring the Terrorist Surveillance Program (TSP) implemented by the National Security Agency (NSA) to be unconstitutional and in violation of federal law.  Her permanent injunction orders the NSA to cease operating the TSP in any way, including warrantless wiretaps of telephone and internet communications, that contravenes the requirements and safeguards for electronic surveillance imposed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq. (FISA).

The action was filed in the Eastern District of Michigan by the ACLU and a group of organizations and individuals who contend that they regularly communicate by telephone and e-mail with persons abroad, including in the Middle East, for entirely legitimate reasons relating to their practice of law, journalism and scholarship.  The plaintiffs allege they have been subjected to the covert, warrantless interception or monitoring of such international communications, violating their rights and chilling their constitutionally  protected communications.  Since persons abroad who formerly spoke with them will no longer do so, the plaintiffs argue they have been stifled in their ability to conduct research and scholarship, talk with sources, interact with clients and, in the case of those plaintiffs who are attorneys, locate witnesses and provide effective and ethical reperesentation to their clients.

The Government argued that dismissal was required by the so-called "state secrets" privilege because the plaintiffs could establish neither their own standing to sue (i.e., whether they had actually been the targets of the covert wiretapping and monitoring they suspect) nor the elements of their claims without the use of confidential information in the hands of the Government that constitute state secrets.  Moreover, the Government argued that it could not defend its programs as being both necessary to the national defense and in compliance with constitutional and statutory standards without revealing state secrets.

In Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004), the Sixth Circuit affirmed the dismissal of discrimination claims against federal agencies because they could not defend themselves "without disclosing information protected by the state secrets doctrine."  Other district courts have invoked the doctrine to dismiss challenges to various aspects of the war on terror.  In one such recent case, Terkel v. AT&T Corp., 2006 WL 2088202 (N.D. Ill. 07-25-06), Studs Terkel and the other plaintiffs alleged that their wireless service provider, AT&T, turned over to the NSA confidential information regarding their telephone calls and internet communications.  District Judge Matthew Kennely dismissed the case on the ground that the state secrets privilege made it impossible for the plaintiffs to establish standing.

However, like District Judge Vaughn Walker in Hepting v. AT&T Corp., 2006 WL 2038464 (N.D. Cal. 6-20-06), Judge Taylor rejected the state secrets argument.  She found that the Government has on many occasions admitted and confirmed that:

1.  the TSP exists and has existed since 2002;

2.  it operates without warrants;  and

3.  it targets communications where one party is outside the United States, and the government has a reasonable basis to conclude that one party is a member of al-Qaeda, affiliated with al-Qaeda, a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.

Indeed, in his December 17, 2005 radio address, President Bush disclosed:

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.

The court ruled that the NSA's warrantless wiretaps violated the plaintiffs' free speech and privacy rights embodied in the First and Fourth Amendments to the Constitution.  The decision also concluded that the TSP program violated the constitutional separation of powers doctrine and FISA, noting that FISA (like Title III) permits delayed applications for warrants after surveillance has already begun.

Judge Taylor rejected the Government's arguments that (i) Congress' Authorization for Use of Military Force on September 18, 2001, Pub. L. 107-40, 115 Stat. 224, 50 U.S.C. 1541, granted the President the power to conduct the TSP in violation of FISA and the Constitution, and (ii) the designation of the President as Commander in Chief of the Army and Navy grants him the inherent power to violate laws enacted by Congress and the Constitution whenever he deems it necessary to the national defense.  The court noted that the same "inherent powers" argument had been unsuccessfully raised before in the Steel Seizure Case, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), and that "since Ex parte Milligan [71 U.S. (4 Wall.) 2, 120 (1866)], we have been taught that the 'Constitution of the United States is a law for rulers and people, equally in war and in peace . . .' "

Judge Taylor's opinion concludes with a message and a challenge:  "Plaintiffs have prevailed, and the public interest is clear . . . It is the upholding of our Constitution.  As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258, [264] (1967):

Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart.  . . . It would indeed be ironic if, in the name of national defense, we would sanction a subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile."

The NSA's public information statement on the TSP sets forth several justifications for the program.

The Justice Department will apparently ask Judge Taylor for a stay of her injunction order pending its appeal to the Sixth Circuit.

Jurist News has a story on Judge Taylor's ruling here.  AP also has a story on the wires here.

Presidential Signing Statements Redux: The Debate Intensifies

Eight distinguished lawyers and law professors who formerly served in the Justice Department's Office of Legal Counsel have now weighed in on the debate raging over the legality of President Bush's use of presidential signing statements.  The group, including former Solicitor General Walter Dellinger and Harvard Law Professor David Barron, have expressed their views in a comprehensive collaborative post appearing last week in the Georgetown Law Faculty Blog.

More on Presidential Signing Statements: Prof. Tribe Takes Issue with ABA Report

Harvard Law School Professor Laurence Tribe has this thoughtful guest post in Balkinization criticizing the recent Report and Recommendation of the ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine submitted to the ABA House of Delegates at the Annual Meeting in Honolulu last week.

More on Presidential Signing Statements

Supplementing our July 17 post on Professor Richard Epstein's commentary regarding presidential signing statements, the ACS Blog recently treats the same subject in the wake of President Bush's first use of his veto power on federal funding for stem-cell research.  Martin Magnusson's post argues that President Bush's abuse of presidential signing statements -- to explain why he is entitled to ignore or violate certain provisions of federal legislation with which he disagrees as he signs the congressional enactment into law -- functions like the line-item veto power conferred by Congress (and afterwards exercised 11 times by President Clinton to strike 82 items) that was invalidated by the Supreme Court in 1998 in Clinton v. New York as violative of the Presentment Clause.

New line-item veto legislation (the Legislative Line Item Veto Act of 2006), proposed by President Bush in his January 2006 State of the Union message, has been introduced in the Senate by Majority Leader Frist, R-Tenn. (S. 2381) and in the House by Representative Paul Ryan, R-Wis. (H.R. 4890).  The Center on Budget and Policy Priorities, a D.C. think-tank, has this commentary on the pending legislation.

The House passed H.R. 4890 calling for a six-year line-item veto, ostensibly to cut down on so-called "pork barrell" spending, on June 22, 2006 by a 247-172 vote.  However, the bill fails to grant full line-item veto powers such as the statute struck down in Clinton v. New York;  rather, the bill permits the President to return specific funding measures embedded in or attached as riders to enacted legislation to Congress within 45 days of their enactment for another vote.  The Senate has not considered the measure to date.

Forbes magazine's article on the new proposed line-item veto legislation appears here.
 

Federal Court Rejects Bush Administration's State Secrets Defense in Suit Challenging NSA Surveillance

In a notable rebuke of the Administration's claim for the exercise of unfettered Executive Branch powers in the interests of national security during wartime, Chief District Judge Vaughn R. Walker overruled the Government's attempt to use the so-called "state secrets" doctrine (any information that could violate national security interests may not be used or admitted into evidence) to dismiss the class-action wiretapping lawsuit filed last February by the Electronic Frontier Foundation on behalf of hundreds of thousands of telephone and wireless customers against AT&T in the Northern District of California.

Judge Vaughn based his comprehensive and well-reasoned opinion on (i) the appropriate function of judicial review of government programs and policies, even in wartime and even involving national security, and (ii) the fact that the administration had already publicly confirmed the existence of the NSA surveillance program and revealed many details of its operation means it fails to qualify as a protected "state secret."

The New York Times story on Judge Vaughn's decision can be found here.  Lyle Denniston has this post in Scotusblog.  Finally, as Patrick Radden Keefe notes in his detailed post in Slate on the Hepting vs. AT&T case:

"The real significance of the case exceeds the NSA wiretapping story and the use of state secrets. Walker's opinion is a stirring defense of the role of the courts, even in times of war. Quoting the Supreme Court's decision in Hamdi v. Rumsfeld, he reminds us, 'Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.'  The president and Congress seem to have forgotten that lately; Judge Walker has reminded them."

Presidential Signing Statements Undermine Constitutional System of Checks and Balances

Professor Richard Epstein of the University of Chicago Law School has a worthwhile op-ed piece in the Sunday Chicago Tribune entitled "The Problem With Presidential Signing Statements."