Direct appeal on NSA spying?
Lawsuits already are pending in federal trial courts to challenge the Bush Administration’s once-secret program of extending National Security Agency electronic eavesdropping to some calls involving Americans within the U.S. Now, a proposal has been made in Congress that seeks to assure a fast resolution by the Supreme Court of the legal and constitutional questions that have been raised about the program. The bill does raise significant questions about Congress’ authority to give U.S. citizens a right to bring those challenges, even if they do not have proof that they were targeted.
On Wednesday, Sen. Charles Schumer, New York Democrat, introduced S. 2468 (the text can be found here). Essentially, the bill does four things:
First, it confers a right to sue (”standing”) on a citizen “who has refrained or will refrain from wire communications because of a reasonable fear” that the communications were monitored by the government without a warrant issued by the Foreign Intelligence Surveillance Court; (The bill’s definitions include one for “a reasonable fear.”
Second, it gives the courts authority to issue a declaratory ruling or issue a court ban on that type of surveillance.
Third, it requires the challenges to be filed with a three-judge U.S. District Court in Washington, D.C., with a direct appeal from there to the Supreme Court.
And, fourth, it requires both the District Court and the Supreme Court to expedite review “to the greatest possible extent.”
The bill has been referred to the Senate Judiciary Committee.
Under an already pending bill sponsored by Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, the Foreign Intelligence Surveillance Court would be required to pass upon the constitutionality of the domestic side of the NSA monitoring program. Another pending bill, sponsored by Sen. Mike DeWine and other Republican senators, would simply validate the existing program by enacting it in a new statute.
This is even worse than that evil televised coverage bill sponsored by Sen. Specter. I would love to hear CAdminDebate’s take on it!
Comment by Commentator — March 31, 2006 @ 3:28 pm
Standing has an injury requirement. What is the injury?
Comment by Commentator — March 31, 2006 @ 3:34 pm
That’s CDebateAdmin, thank you very much.
Comment by CDebateAdmin — March 31, 2006 @ 5:05 pm
It’s really too bad that O’Connor’s no longer on the Court, because she could have come up with a new test to guide us in these cases… perhaps the undue burden on endorsing Al Qaeda test??
In all seriousness, this is absolute garbage. I know this is probably a political stunt by Schumer, but come on, certainly his legal help could have done a better job than this. Commentator’s point regarding the injury requirement is right on the money. I especially love Part B of the definition. I thought the US not paying enough attention to transactions involving foreign bank accounts(the finances of al Qaeda) was one of the criticisms that certain Senators had regarding this administration’s handling of the WoT.
Comment by CDebateAdmin — March 31, 2006 @ 5:27 pm
As a passport-carrying internationalist, I must protest the idea that when I call my wife from Colombia, I can be wiretapped in the President’s discretion (regardless of whether a FARC guerrilla or a right-wing militia member used the same phone an hour ago). First, this is a battle that I fought years ago and won in Congress so I’m not that pleased when it’s ignored by some power-grabbing Republican president (as was the bombing ban in Cambodia, as was the cutoff of aid to the Contras). Second, I don’t consider invasion of privacy injuryless. When I was held up at gunpoint, my injury was as much the feeling of violation at seeing the robber go through my personal correspondence as it was the bullet in my leg. Too bad Justice O’Connor isn’t around to spank you guys.
Comment by r.friedman — March 31, 2006 @ 6:40 pm
Although some of the other comments raise interesting points about the proposed bill, I don’t think that Schumer’s legal team has put forth a totally groundless case for standing. Think of FEC v. Akins (1998) (http://www.oyez.org/oyez/resource/case/1048/), where the Court held that the plaintiffs had suffered an injury-in-fact because they were denied access to information to which they potentially had a right conferred by statute. I’m not saying the Akins controls, but simply that these questions are far from open-and-shut. The same is likely true more generally of citizen-suit provisions in federal statutes. I don’t recall whether the Court has dealt with such a provison at length since its fractured opinion in Lujan (1992).
Comment by LegalThoughts — March 31, 2006 @ 8:54 pm
I see now that both Steve Vladeck at Prawfsblawg (http://prawfsblawg.blogs.com/prawfsblawg/2006/03/s_2468_a_new_ki.html#more) and SCOTUSBlog’s own Marty Lederman, at Balkinization (http://balkin.blogspot.com/2006/03/schumer-nsa-bill-and-feingold-censure.html), have given this issue much more scholarly and in-depth treatment than my amateur attempt in the earlier post.
Comment by LegalThoughts — March 31, 2006 @ 9:17 pm
First of all, I think Marty has gotten more than a bit carried away with his assertions that the current program is illegal. You can argue policy all day long, but when it comes to the black-letter law, at the very least, there are colorable arguments on both sides.
Be that as it may, and putting aside any jurisdictional/standing concerns, I still don’t know if Schumer’s bill will get the job done. I’m not sure that a Court could rule on the legality of the surveillance program, without the details of what is actually going on. To that end, I’m not convinced that the Court would be willing to cast-aside the claim of Executive Privilege for purposes of National Security, so that they can effectively rule on a civil cause of action created by this “statute.” Look at the balancing the Court did in Nixon, and that was a criminal proceeding vs. a general claim of executive privilege; in this situation the claims are very different, with the former being dramatically less compelling, and the latter being much more powerful.
Comment by JGR — April 1, 2006 @ 12:53 am
Freaky Friedman: I don’t consider invasion of privacy injuryless. When I was held up at gunpoint, my injury was as much the feeling of violation at seeing the robber go through my personal correspondence as it was the bullet in my leg. Too bad Justice O’Connor isn’t around to spank you guys.
First of all, for someone who cares about invasions of privacy, show some mercy and keep your private fantasies involving Supreme Court Justices to yourself.
Second, your hypo does no work to prove the claim you are attempting to make. The “feeling of violation” during a robbery or an assault stems from the imminence or immediacy of the physical harm, i.e., when Robber X says “Your money or your life!”, you think “If I don’t let him go through my stuff, he will kill me!” No such threat of physical harm exists here. Indeed, none of the parties seeking standing even know for sure whether they were wiretapped. It is impossible for to feel threatened with immediate physical harm by wiretapping you are unaware of.
What’s more, for a law professor, you are making some rather loose claims (Hey, did you submit a brief in FAIR v. Rumsfeld?). If “feelings of violation” are all it takes to surpass standing’s bar, then Justice Douglas was correct when he noted public interest groups could sue on behalf of trees for aesthetic injury. I am sorry, Friedman, but I find the idea of trees committing arboricide to file court papers that aim to safeguard their aesthetic sensibilities about as absurdly unappealing as the notion of Justice O’Connor giving me a spanking.
Comment by Commentator — April 1, 2006 @ 1:41 pm
Another question comes to mind — if there are pending lawsuits in which challenge has been made to illegal surveillance, say in the M.D. Fla., if the billpasses does this mean the case will have to be transferred to the D.C. Circuit? And, does the type of case matter? What if it is an Americans With Disabilities or admiralrty salvage case in which a surveillance vessel conducting illegal surveillance on the ADA plaintiffs was arrested in salvage — do both cases in ADA and admiralty have to be transferred to D.C.Circuit, just because surveillance issue has arisen? What a mess.
“Standing has an injury requirement. What is the injury?”
Uh, maybe a vessel surveillance platform cnducting llegal surveillance of an Americans With Disabilities Act plaintiff, where the information obtained about litigation strategy in the ADA case is used against the ADA plaintiff to illegally retaliate by recklessly tying the vessel for a Hurricane in an attempt to kill the plaintiff to end the ADA suit and hide the fact of the illegal surveillance. And, then the vessel “owner” turns out to testify under Oath that the vessel is Cayman registered in circumstances where US Marshal puts pictures of hte essel into the court record showing the vessel lack the markings and carvings to comply with Cayman registry, and the “owner” cannot produce the evidence of Cayman registry admissible in evidence under Cayman registry laws, and testifies to teh Corut all Cayman shipping records were destroyed by Huricane Ivan, when the Cayman news reports all such Cayman governmental records and data survivied the Hurricane?
What is the injury??????!!!!!!
Comment by Mary — April 1, 2006 @ 5:31 pm
The ADA vessel surveillance pattern is completely beside the point as to Schumer’s bill. If someone has an actually injury, a real case, let them pursue the claims in a federal court. Put simply, creating a specialized statutory cause of action in the US Code to challenge wiretapping by the NSA that is purportedly in violation of FISA is absurd. If you have a claim, bring it. If you lose because you don’t have an actual injury, then you shouldn’t be heard to complain. After all, you haven’t been injured!
I second the point that this NSA program is hardly cut-and-dry “illegal.” Whether its unwise, of course, is not the question really, but I read many commentators’ sentiments as infused with a notion that this is illegitimate or unwise as opposed to plainly illegal. I think one comment above is too harsh in taking Mr. Lederman to task. He does sometimes use language that blurs the lines between objective/subjective and form/content. But, what he really argues, as I understand him, is that it is unassailable that FISA’s text is violated by the NSA program. This conclusion–standing alone–says nothing about the legality per se of the NSA program given the other disagreements over whether aspects of FISA’s reach are constitutional as constraints on Article II powers or (less likely) whether the AUMF was a subsequest congressional carve out of power to the President in this regard. In any event, I stand with many even in the legal community who are more common law minded (as I would describe it), and, therefore, who feel we can’t even make this judgment about legality in the absence of all relevant facts and, probably, an actual case to test the application.
Additionally, and I think we saw aspects of this problem in McConnell v. FEC, what ever happened to the broad agreement in the legal community that perculating questions in lower courts presented with ACTUAL CASES testing the contours of a law was the reified best practice for resolution of legal controversies under our common law system? I find more and more commentators mentioning these fast-track appeals in a positive or neutral light, which surprises me. This is among the most problematic of the litany of questions raised by Schumer’s proposal.
Comment by Lex Aquila — April 1, 2006 @ 7:12 pm
“But, what he really argues, as I understand him, is that it is unassailable that FISA’s text is violated by the NSA program. This conclusion–standing alone–says nothing about the legality per se of the NSA program…”
I don’t even think that is clear — to me there is a very good argument that goes something like this: (1) FISA has a built in exception for later statutory authorization (2) SCOTUS, in holding that the AUMF authorized the detention of citizens (in the face of the Antidetention Act), and (3) SCOTUS further stated that the AUMF authorized reasonable incidents of war — to which they looked to the history of armed conflicts for their determination that detention of enemy combatants was such an incident of war. THEN IN MY OPINION, it is not implausible (and actually pretty persuasive) that the AUMF be interpreted to authorize military intelligence in the form of signal capturing (something that has been done in every conflict since the advent of signal communications), thereby providing statutory authority for the NSA program and satisfying the statutory exception in FISA. This of course would make Marty’s claim of a “clear violation” of FISA’s text entirely inaccurate.
“we can’t even make this judgment about legality in the absence of all relevant facts and, probably, an actual case to test the application”
I agree — but I’m still not sure how the Executive Privilege factor will play out — I sincerely doubt that any civil case will be enough to outweigh the claims of national security. In my opinion, it may take a criminal prosecution of someone who was arrested based on evidence obtained under the NSA program to have a chance at beating the Executive Privilege.
Comment by JGR — April 1, 2006 @ 8:56 pm
About twelve years ago, Jamie Gorelick testified before Congress and set forth the Clinton Administration’s position that a president, indedependent of FISA, had the constitutional authority to intercept communications originating from foreign countries. This position, I believe, has been adopted by every administration since Carter. Does anyone have any information on this point?
Comment by Dennis Bedard — April 2, 2006 @ 8:47 pm
Commie –
I would not reply except for the calumny that I am a lawyer or law professor. I am a citizen of the USA, subject to its laws and therefore interested in them.
The Fourth Amendment recognizes the right to be secure in one’s papers, independent of whether one is coerced to surrender them. While I did not like being held at gunpoint, I can assure you that the feeling was different when he was going through my papers. In today’s world, e-mail and telephone conversations are the equivalent of papers.
At any rate, interception of communications has been accepted as a violation of privacy for decades now, qualifying at least for nominal damages and injunctive relief. No further injury is required. Just ask Jim McDonald.
Comment by r.friedman — April 2, 2006 @ 8:50 pm
One think that strikes me as interesting is the intrusion of the courts into the warfighting/national security business. I am not sure that courts are the proper forum for any of these issues.
Putting aside the legality of any of these actions, I think that court involvement reflects the view that this really isn’t a war. Let’s say, for example, President Bush had decided to destroy the EP-3 Aries that was forced to land on the island of Hainan, and general hostilities broke out between the US and China, does anyone think that any court would get involved in any issues that popped up (detention of Chinese nationals, seizure of Chinese-flagged vessels etc.)? And if they tried, they’d be laughed at.
Second point: let’s say that the courts do have a place here in this aspect of war-fighting (clearly the use of signals intercepts no matter that it crosses the US border is a part of war-fighting). What is the logical basis of limiting it to detentions of alleged combatants or the interception of signals? With respect to the signals, the answer could be the fact that it crosses US borders–but there is no easy answer for the detainees. Could US courts order the army not to bomb certain villages? Could they write the rules of engagement?
Comment by federalist — April 2, 2006 @ 10:02 pm
“The ADA vessel surveillance pattern is completely beside the point as to Schumer’s bill. If someone has an actually injury, a real case, let them pursue the claims in a federal court. Put simply, creating a specialized statutory cause of action in the US Code to challenge wiretapping by the NSA that is purportedly in violation of FISA is absurd.”
You dance around the point I was trying to make. No ever asks me, since I am just an autistic and of no real importance, but if someone were to ask me, I would suggest there is no need to create a special cause of action since any number of existing federal causes of action + existing standing (injury-in-fact) already more than adequately addresses the problem.
What I WOULD do is legislate a three-judge panel in the district court, along with a direct as matter of right appeal to the Supreme Court in any case raising the surveillance issue within the context of any federal case.
But, the common sense of autistics never prevails in the logic of the real world. So I don’t suppose my suggestion would carry any weight.
Comment by Mary — April 3, 2006 @ 2:59 pm
r friedman:
Who is Jim McDonald and what is his relevance to this discussion? Do you mean Rep. Jim McDermott (D-WA)?
Comment by CountTwist — April 4, 2006 @ 2:21 pm