Did Judge Batchelder Support President Bush on the Merits of the Legality of the NSA Surveillance Program?
I have read yesterday’s decision on the NSA warrantless surveillance case. It is a complex set of issues and a complex decision, and I am no expert in this area, so everything I say in this post is necessarily tentative and offered for purposes of discussion.
With that caveat, I would like to (tentatively!) dispute Glenn Greenwald’s characterization of both majority opinions as completely agnostic on the merits. It seems to me that one of them (Judge Batchelder’s opinion) asserts quite clearly that, based on what is known about the surveillance program, it does not violate FISA or Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Judge Batchelder’s assertions are offered as part of a standing analysis, and a ruling on standing grounds is not a ruling on the merits. But as Judge Batchelder describes it, the analysis of the plaintiffs’ standing on the statutory claims depends in part on whether there is a valid claim under those statutes — and, she says, there is not.
For example, at page 32, Judge Batchelder writes:
It is undisputed that the NSA intercepts international, rather than domestic, communications, so . . . Title III does not apply. Moreover, because the plaintiffs have not shown, and cannot show, that the NSA engages in activities satisfying the statutory definition of “electronic surveillance,” the plaintiffs cannot demonstrate that FISA does apply.
(All emphasis in this post is mine.)
Thus, I disagree with Glenn Greenwald when he insists that the ruling “had absolutely nothing to do with the merits of the case”:
[T]he majority opinion here did not make a single comment suggesting they believe Judge Taylor’s ruling on the merits was wrong, nor did they suggest that warrantless eavesdropping is legal. To the extent they commented on those issues at all, the majority opinion observed that the appeal “presents a number of serious issues,” while the other Judge in the majority (Gibbons) described in the first paragraph of her concurring opinion the “complexity” of the “merits issues.” Not a word in either of those two opinions constitutes a repudiation of the finding by Judge Taylor that the President broke the law and violated the Constitution.
Unlike the two judges in the majority, the dissenting judge (Gilman) did issue findings regarding the illegality of the NSA program once he found that the plaintiffs had standing to sue. And he decided conclusively that the NSA program violates FISA and that the administration’s two legal excuses are invalid. That means that the only two federal judges ever to rule on the legality of the NSA warrantless eavesdropping program — Judge Taylor and now Judge Gilman — have both decisively concluded that the President’s warrantless eavesdropping is illegal.
The language I quote from Judge Batchelder’s opinion above, I believe, contradicts (or at least significantly undercuts) Greenwald’s categorical assertion that no judge in the majority offered any opinion on the merits of any of the claims. Judge Batchelder clearly states that the plaintiffs show no statutory violation of Title III or FISA. In the extended entry, I go into detail regarding Judge Batchelder’s reasoning leading her to make that statement. But it seems to me — even though her conclusion in reached in service of a holding on standing grounds — the wording of Judge Batchelder’s analysis is inconsistent with Greenwald’s claim that “[n]ot a word in [her] opinion constitutes a repudiation of the finding by Judge Taylor that the President broke the law . . .”
Here are the details:
In her analysis of the plaintiffs’ standing on the statutory claims, Judge Batchelder writes that the
first step is to consider whether any of these statutes “authorize review at the behest of the plaintiff[s]” — i.e., whether these statutes (1) govern the NSA’s challenged conduct and (2) provide the plaintiffs a means of judicial review.
At page 29, Judge Batchelder writes that the NSA’s surveillance is not covered by Title III because of an explicit statement in that statute that it does not apply to surveillance of international communications for intelligence purposes:
The first clause of § 2511(2)(f) — stating that Title III does not govern the acquisition of “foreign intelligence information from international or foreign communications” — expressly disclaims application of Title III to surveillance activities of the type at issue in the present case. The NSA monitors international communications for the purpose of acquiring foreign intelligence about terrorist organizations; this type of surveillance falls squarely under the disclaimer found in the first clause of § 2511(2)(f).
In case there were any doubt about what she means, she writes at page 30:
Because the first clause of § 2511(2)(f) states that Title III does not apply to the internationally focused surveillance activities challenged in this case, the plaintiffs have not asserted a viable cause of action under Title III.
“[N]ot a word” repudiating Judge Taylor’s finding that the President broke the law? It seems to me that she has a whole section repudiating that finding. Actually, make that two sections — because Judge Batchelder makes a similar finding with respect to FISA, writing that the plaintiffs have not shown that the NSA surveillance at issue in the case is electronic surveillance as specifically defined by FISA:
Next, the interception must occur by “electronic surveillance.” According to the plaintiffs, the government’s admission that it intercepts telephone and email communications — which involve electronic media and are generally considered, in common parlance, forms of electronic communications — is tantamount to admitting that the NSA engaged in “electronic surveillance” for purposes of FISA. This argument fails upon recognition that “electronic surveillance” has a very particular, detailed meaning under FISA — a legal definition that requires careful consideration of numerous factors such as the types of communications acquired, the location of the parties to the acquired communications, the location where the acquisition occurred, the location of any surveillance device, and the reasonableness of the parties’ expectation of privacy. See 50 U.S.C. § 1801(f).40 The plaintiffs have not shown, and cannot show, that the NSA’s surveillance activities include the sort of conduct that would satisfy FISA’s definition of “electronic surveillance,” and the present record does not demonstrate that the NSA’s conduct falls within FISA’s definitions.
Judge Batchelder has a footnote setting forth the specific definition of “electronic surveillance” in FISA:
FISA defines “electronic surveillance” in exactly four ways:
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
50 U.S.C. § 1801(f). The present record, which contains three facts regarding the TSP, offers no indication as to where the interception may occur or where any surveillance device is located. Nor does it offer any basis to conclude that particular people located in the United States are being targeted.
The “three facts” about the TSP (“Terrorist Surveillance Program”) referred to in this footnote are set forth at page 6 of the opinion: “the NSA (1) eavesdrops, (2) without warrants, (3) on international telephone and email communications in which at least one of the parties is reasonably suspected of al Qaeda ties.” Judge Batchelder’s ultimate conclusion is stated at page 31: “No matter how these claims are characterized, the plaintiffs have not asserted a viable FISA cause of action.”
The dissent points to various public statements made by the Administration that suggest that the electronic surveillance (in common parlance) conducted by the NSA fits within FISA — in particular the Administration’s decision to subject the surveillance to the FISA court. Regardless of whether the dissent or Judge Batchelder has the better of the argument on this issue, it seems clear to me that Judge Batchelder is expressing a view (if not a “ruling”) on the merits of the plaintiffs’ claims, albeit in the limited context of a statutory standing analysis.
I’ll say it again: keep in mind that I may be wrong, and that my opinions are offered for the purposes of starting a discussion, and seeking commentary from people with more expertise on the issue. I’ll e-mail a few of the folks with expertise in this area and see if I can get a reaction from them.
P.S. Is the decision right? I don’t know. An opinion on the correctness of the decision on the standing issue would require delving into a number of Supreme Court decisions, something I have no interest in doing, especially on such a dry and technical issue. I don’t get paid to do it, and I suspect most of you aren’t any more interested in that issue than I am. (If you are interested in the issue, Ann Althouse has delved into the cases and summarized them neatly here, and Marty Lederman offers some insightful criticisms here. Orin Kerr appears to agree with the majority’s analysis.)
A thorough discussion of the correctness of the dissent’s view of the merits is beyond the scope of this post, and something I don’t have a firm opinion about. Suffice it to say that the dissent sets forth the best-reasoned and least hysterical case for the illegality of the surveillance program that I have yet read.
The result, in my view, turns largely on whether the AUMF set forth an exception to the exclusivity provision of FISA, due to the fact that surveillance is necessarily incidental to the use of force (and thus distinguishable from the particular form of military commissions at issue in the Hamdan case). (In my view, the resolution of this issue resolves the “inherent authority” argument as well, because it tells us which of the Youngstown categories governs the analysis of the President’s actions. John Hinderaker would probably kill me for accepting those categories as the law, but I believe that the current court will treat it as such.)
I tend to lean towards the Administration’s view on this issue, for the reasons I already expressed in this post — but the dissent’s argument is well argued and may well carry the day in the Supreme Court (especially given the fact that Justice Kennedy will doubtless be casting the deciding vote).
P.P.S. I will add that, whether or not the decision is proper as a legal matter, there is something a bit Kafkaesque about the notion that nobody can challenge the program’s allegedly illegal nature because it’s a secret.