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: