As, no doubt, even Kalahari Bushmen know by now, the U.S. Court of Appeals for the Sixth Circuit overturned the decision by District Judge Anna Diggs Taylor finding the NSA intercept program unlawful by a 2-1 majority today.
Before anyone gets too overheated, either in praise or damnation of this decision, one must note that the majority does not reach the merits of the program itself. Rather, the Sixth Circuit panel ruled that the Plaintiffs lack standing to bring the suit:
The injunction in this case is predicated on the declaratory judgment (i.e., a determination that the NSA’s conduct is unlawful), so it follows that if the plaintiffs lack standing to litigate their declaratory judgment claim, they must also lack standing to pursue an injunction. The question is whether any plaintiff has standing to litigate the declaratory judgment claim….
[T]he 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.
By claiming six causes of action, the plaintiffs have actually engaged in a thinly veiled, though perfectly acceptable, ruse. To call a spade a spade, the plaintiffs have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment or FISA — i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it. On a straightforward reading, this claim does not implicate the First Amendment. The problem with asserting only a breach-of-privacy claim is that, because the plaintiffs cannot show that they have been or will be subjected to surveillance personally, they clearly cannot establish standing under the Fourth Amendment or FISA. The plaintiffs concede as much….
Based on the evidence in the record, as applied in the foregoing analysis, none of the plaintiffs in the present case is able to establish standing for any of the asserted claims. At oral argument, we asked the plaintiffs’ counsel if we should remand for further proceedings on the issue of standing. Counsel asserted that the plaintiffs’ injuries were clear and undisputed in the record and there was no need to remand for a hearing or admission of additional evidence on this issue. But even to the extent that additional evidence may exist, which might establish standing for one or more of the plaintiffs on one or more of their claims, discovery of such evidence would, under the circumstances of this case, be prevented by the State Secrets Doctrine.
The trial court opinion reviewed here was among the worst examples of judicial decisionmaking in the history of the art. It was widely derided, even by those who agreed with its conclusion, as poorly argued, excessively tautological, and unduly conclusory.* That it would be overturned on some grounds was always likely simply because, regardless of what one thinks of the program itself, it was a genuinely bad decision. Were it to stand up under appeal, it would enshrine some very, very poor reasoning into law.
People who aren’t trained in the law tend to get too wrapped up in the bottom line results of cases, without sufficient respect for the actual reasons for them. It is important, then, to keep in mind what this decision actually represents and what it does not. The Sixth Circuit’s decision today is about standing to sue, not the legality of the NSA’s international surveillance program. While there will no doubt be plenty of people who are genuinely distressed that this decision was struck down because they approved of the result, it is nevertheless in the long-term interests of the system that the standing requirements not be diluted simply to ensure a result some happen to like be upheld. Likewise, people who wanted Judge Diggs’ decision overturned (which, in the interest of full disclosure, includes me — both because of the poor quality of the trial court’s opinion and because I lean to the belief that the program is legal) should not read more into this decision than there is in it.
The case or controversy requirement of Article III of the Constitution requires that “the party who invokes the court’s authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” (See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) The injury complained of must be “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual and imminent, not conjectural or hypothetical.” (Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)) Today, the Sixth Circuit ruled that the injury alleged by the plaintiffs was too speculative. And that’s pretty much it.
There is another issue hidden in the undercurrents of this case, but not, obviously, actually addressed by the decision: The matter of forum shopping. The Plaintiffs here brought their case in a Circuit in which the issue would be one of first impression. Prior to the filing of this case, the Second, Third, Fourth, Fifth, and Ninth Circuits, as well as the FISA Court of Review, had all held on that the President has the constitutional power under Article II to order warrantless surveillance for national security purposes (significantly, those cases all dealt with domestic warrantless surveillance; it was, of course, international intercepts that were at issue here). This is a matter of no small concern and is, all too often, a major weakness of the system (we see it most often in the context of personal injury suits brought in “plaintiff-friendly” jurisdictions even where another, less generous, jurisdiction would arguably be more appropriate, but it’s hardly uncommon in “public interest” litigation). Enforcing the court’s jurisdictional limitations is one the primary defenses the system has against such abuses.
Prof. Balkin (see link below) is correct that this case “is just the opening shot in what promises to be a long battle.” As of today, the Sixth Circuit has not rendered an opinion on the legality of the program. It has simply ruled that it cannot do so until a plaintiff who’s actually been harmed by it brings suit. This issue will most likely eventually make its way to the SupCt. But our system requires that it do so in the context of any actual controversy involving people who have real, not hypothetical, interests in the result.
* See, for instance, Prof. Eugene Volokh, a skeptic as to the program’s legality, who called the opinion, “not just ill-reasoned, but rhetorically ill-conceived… [a] seemingly angry, almost partisan-sounding opinion” which is “rich in generalities, platitudes… and ‘obviously’s,’ and poor in detailed discussion of some of the government’s strongest arguments.” See also, Jack Balkin, a left-leaning law professor and unremitting critic of the program, who said of the opinion, in pertinent part, “Although the court reaches the right result– that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused…. It is quite clear that the government will appeal this opinion, and because the court’s opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough.”
