Where’s the beef?

John, who is on vacation, has delegated to Scott and me the task of “dissecting” the district court opinion that strikes down the NSA’s intercept program as unconstitutional. In a sense, however, there isn’t much to dissect. The opinion is almost devoid of analysis on the key constitutional provisions it relies upon (the court more or less ducks the issue of whether the intercept program is consistent with FISA and completely dodges the issue of whether the president has the inherent power to authorize the intercepts; it reasons that the Constitution trumps the statute (page 39) and that the president lacks the inherent power to violate specific constitutional provisions (pages 40-41)). It is part of my job as a litigator (and has been for more than 30 years) to read and understand judicial opinions. Off hand, I cannot recall reading an opinion as conclusory and content free as the key portions of this opinion.

Consider the court’s treatment of the First Amendment. The judge recites the provision, rehearses its purposes, quotes from a few cases, and finds that “a governmental action to regulate speech may be justified only upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen.” (page 32) Then, without any discussion of whether the government has shown such an interest, she finds a First Amendment violation. Her only rationale is that the president “has undisputedly violated the Fourth [Amendment] in failing to procure judicial orders as required by FISA, and accordingly, has violated the First Amendment rights of these Plaintiffs as well.” (page 33)

What, then, is the court’s basis for finding that the president “undisputedly” has violated the Fourth Amendment? Here again, the court doesn’t tell us. The judge spends three pages of the four devoted to the issue stressing (through lengthy general quotations from Supreme Court opinions) how important the Fourth Amendment and the right to privacy are. She distills the prior decisons to mean that all searches must be reasonable. (pages 30-31) But without attempting to demonstrate that the warrantless searches at issue here are unreasonable, or that they do not fall within an exception to the requirement of a warrant, the judge simply concludes that “the wiretapping program here. . .has indisputably been implemented without regard to FISA and of course the more stringent standards of Title II, and obviously in violation of the Fourth Amendment.” (page 31)

One begins to note some circularity here. The intercept program violates the Fourth Amendment because (I guess) it was implemented without regard to FISA. It violates the First Amendment (I guess) because it violates the Fourth Amendment. And we don’t need a full analysis of whether the program can be reconciled with FISA because it violates the First and Fourth Amendments.

I hesitate to summarize the discussion of separation of powers for fear of ruining John’s vacation, but here goes. The judge relies, of course, on Justice Jackson’s concurring opinion in the Youngstown Sheet & Tube case. She finds that because the president “has acted, undisputedly [that word again], as FISA forbids” his power was at its lowest ebb and “cannot be sustained.” (page 36) But (overlooking the court’s ultimate unwillingness fully to engage the FISA issue) the fact that the president’s power may have been at its lowest ebb doesn’t mean that it cannot be sustained. Some analysis is required to take that step. Once again, the court fails to supply it.

One more point. Early in the decision, the court rejects the government’s argument that, because it cannot defend the case without exposing state secrets, the case should be dismissed under the state secrets privilege. The court reasons that the government has been able to assert its basic legal positions — that the president has the statutory and constitutional authority to have the NSA engage in the surveillance — without revealing state secrets. (page 14) I don’t know anything about the state secrets privilege, but I would have thought that being able to defend a case means more than just asserting theories under which the case might be defended. I would have thought that being able to defend a case without revealing state secrets would also entail being able to establish the factual basis for those theories, and to respond to the other side’s claims, without revealing such secrets.

For example, the court says that to defend against the plaintiffs’ First Amendment claims the government must show a compelling need for overhearing the plaintiffs’ conversations and thus allegedly chilling their exercise of free speech. But the court does not discuss whether the government can make that showing, and a showing that less intrusive methods will not suffice, without revealing state secrets. In any case, since the court ultimately did not apply the “compelling need” standard, I guess it didn’t matter.

Readers may recall that, unlike my partners, I think it’s probably a close question whether the NSA program is lawful. Thus, I would have been eager to read and engage a well-reasoned decision that struck down (or affirmed) the program. Unfortunately, this court provided virtually no reasoning at all.

JOHN adds: I recall being taught as a preschooler that “just because” isn’t a good argument. The only way it could get weaker is by adding a reference to Justice Jackson’s dim-witted concurring opinion in Youngstown Sheet and Tube, which not one of his fellow justices was foolish enough to join in. Whenever I read that opinion I think of the song “Ebb Tide.” But Presidential powers aren’t a tide; they don’t ebb and flow; they are as set forth in Article II of the Constitution. Congress cannot make the President’s powers “ebb” by disagreeing with a Presidential action or purporting to ablosih a Presidential power, any more than the President can cause Congress’s powers to “ebb” by disagreeing with a duly enacted statute. (He can, of course, veto the statute, but that is one of his prescribed powers, as is Congress’s ability to override the veto.) Nor can Congress empower the President to take an otherwise unconstitutional action by agreeing with him, thereby creating a “flood tide.” Nor does Congress create a fog of doubt by remaining silent in the face of a Presidential action–as Jackson absurdly asserts–regardless of whether that action is either plainly within, or plainly without, the President’s constitutional authority. It would be hard to think of a sillier construct that has been taken seriously by people who should know better, and it is no surprise that a result-oriented left-wing judge would seize on Jackson’s tissue of confusion to justify her preordained conclusion.


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