Your objection to the court's decision based on use of just public facts, the crux of the debate, is one sided. Your worry that the government cannot counter public facts with the secret facts that support the government's case is would exactly be mirrored if the case were dismissed because of the plaintiff's lack of access to those same secret facts. In either case, a decision is reached with incomplete knowledge.
The judge's decision was the more correct of the two imperfect outcomes if she felt that no secret facts that could have been presented would trump the fact that Bush was breaking the laws that congress had passed -- and she was correct in that decision. If the Bush administration had any real justification, it should have been presented to congress long ago, debated and laws changed.
Not necessarily. I mean, yes, maybe there are secret facts. But maybe there are non-secret facts too (i.e., two can play the selective quotations game).
but again - if you're concerned, the proper response is to say "ok, government, i'm not considering thigns you hide. now let's go forward with that understanding."
I don't understand what you mean when you say that the government didn't have a chance to brief its constitutional arguments. It had the chance -- it didn't want to do it. Same with the facts (if any) that might show that the program is not unconstitutional/unlawful.
The government should have known -- and in fact did, because they looked at the plaintiffs' papers -- that the constitutional issue was before the court. What did they do? They said that it can't be reached because the the secrets privilege. (And then said something on page 24 of the reply that's redacted).
Did they file a Rule 56(f) affidavit? No, because there's nothing they could have said. What discovery does the government need to take on the legality of the program? What facts can it learn from the plaintiffs that have anything to do with the government's own conduct? Can you name a single fact not already in the possession of the government that would bear on the constitutional issues? The need for discovery in this case is a total red herring.
Did the Court have enough facts to say that the plaintiffs had made out a prima facie case? I think so. Could the government have presented facts that would have rebutted that prima facie case? Maybe, but they didn't do it -- not because they weren't given an opportunity, or because they 'never dreamed' the issues would come up, but because they believed so strongly in their secrets argument that they put all their eggs in one basket.
You can't beat summary judgment by simply saying that there are additional facts. You have to present admissible evidence sufficient to get to the jury for your proposition. Did the government do this?
You can't say 'here are some facts, don't listen to what the other guy says.' You can say 'I call . . . pair of nines.' If the other guy won't show his cards, you get the pot, whether he has a full house or a pair of sixes.
Did the Court owe the government an opportunity to cure what amounts to a knowing and intentional default? I'm not feeling sorry for the government here. They came in saying 'We win, and we don't owe you, Court, a goddam thing. You have to rule for us on our say so.'
I'm not a regular reader, and would not expect you to be familiar with me either. I'm kind of disappointed that you didn't deal with the issues noted above -- in comments to the previous thread -- but then it's your show. I don't mean this comment, or my previous ones, to be personal, or a rebuke. Just an honest difference of opinion . . .
Perhaps, but like any facts in a trial they have to be relevant. If the basic known fact, based on their own admission, is that the Bush administration is avoiding FISA, the operative law, and doing warrantless searches on American citizens, and that Bush is justifying this NSA program on presidential powers that do not exist. What facts possible facts are relevant that would trump that? That God told him that he could ignore the constitution? That Cheny told him it was ok? That he felt we were all in danger? That he don't need no steeekin congress? His justification for doing what he is doing is flawed in a very basic way that is clear regardless of what further facts he could dig up.
I'm with Charlie Carp here, on a number of levels, but until I get my kid to bed I'll leave it at one. You have the "professional courtesy" argument exactly backwards. When a federal judge tells you she wants briefing on both the motion to dismiss and the motion for summary judgment, and you submit what the government did, you are the one showing a lack of professional courtesy and are essentially daring the judge to rule against you -- and that's true even if you do represent the US of A.
Maybe it was a calculated gamble by the government to emphasize state secrets, maybe it was a preference to lose rather than face discovery, maybe it was just arrogance -- who knows -- but it certainly wasn't a lack of professional courtesy by the judge.
all due respect, but it was so absurd that the court would rule on this with a motion to compel pending that they would have been bad lawyers to waste 30 pages on it. practically all courts rule on the threshold questions first.
i mean, this isn't a law school exam fact pattern - this is a decision about the constitutionality of the largest surveillance program in american history. if the government of the united states has issued 2 cursory pages of briefing on the constitutional issues, ask for more briefing. i mean, you don't strike these sort of programs down b/c the government didn't file a 56(f) affidavit.
i apologize for being snippy, but this is just not how things are done in practice. it's unheard of.
this detailed discussion (and I indict myself) obscures just how ridiculous the decision was.
in any event, even on the merits of the SJ discussion, you are allowed to say that the other side's case isn't sufficient even if you don't file an affidavit. also, the government challenged specific facts in their briefs. so even assuming we should even be talking about SJ (which we shouldn't), it was premature.
in short, you don't play procedural gotcha on stuff like this.
Again, I think you have it backwards. This is not procedural gotcha stuff by the judge, if anything it is a litigant playing games with the court who got called on it. Either that, or a calculated strategy of focusing all attention on the state secrets argument to keep things clean for review.
I skimmed through the documents you linked (thanks). The government moved several times for a continuance of the summary judgment motion so the motion to dismiss could be heard and decided first. The judge granted a couple of short continuances, but then denied a renewed motion for continuance and ordered that the motions would be heard together. The judge's order of 5/31/06 (she seems ticked) makes it clear that the summary judgment is on the table and the government could argue it if it wished -- apparently the government had refused to offer any defense to the ACLU's motion up to that point.
When a judge, particularly a federal judge with lifetime tenure and the sense of entitlement/demand for respect that seems to come with it, issues an order telling you she is going to consider an issue, and you skimp on that issue, you do so at your own peril. In addition, the judge was well within her perogative to hear the motions together. The ACLU properly filed and noted its motion for summary judgment. As Charlie Carp pointed out, the government never filed a 56(f) motion for additional time and discovery -- it could have done so but would have had to identify the needed discovery; apparently it didn't want to do that. Given that, the court was not only entitled to hear the summary judgment motion, it would have been a bending of the rules not to hear the summary judgment motion.
Analytically, you are correct that the threshold issue (the motion to dismiss) comes first -- and that's just what the judge did. She just did it based on one set of oral arguments and in a single order, and there is no reason she shouldn't have done that from a procedural point of view.
Finally, as to the extra briefing, if as you point out this was a very important case, an extra 30 pages of briefing is not that big a deal. This is particularly true when the alternative is having summary judgment entered against you in an important case and you have the entire resources of the DOJ to help out (the gov't had six different people signing its brief you can be sure there were a dozen more in the background).
I think, publius, that you and I have a factual disagreement concerning something neither of us know. You seem to think that the government didn't fully brief its constitutional case because it would never have dreamed that the court would grant the pending motion without giving it another chance to brief. I think the government didn't fully brief its constitutional case because it didn't want to put its arguments out there, because they're not that good (in light of Hamdan, for example). Neither of us knows, of course.
With respect to you 'it just doesn't happen this way' argument, I'll also have to disagree. What doesn't happen, in my experience, is judges giving litigants a chance they don't seek to re-brief issues they clearly intentionally avoided briefing when they came up.
great post and comments. it would be interesting to get a another judge's take on this.
publius once worked for the judges that smack down bs like this.
thats just how he rolls.
that said - this is what drives me nuts about "liberal" attachment to the law. intellectually, the only time i can let the results get in the way of principle is criminal law (but thats my weakness... im a softie)... this decision is the result of a flawed process. I just can't see people defending it so passionately if not for the result
Bush sucks... we don't need a federal judge to act out of line to make it official
You know, I've speculated that the judge rushed because of Specter.
If she was pissed at the govt, as dbm thinks, maybe the govt was stalling.
So it will go to the sixth circuit. With 4 Reagan appointees, 4 Carter, 4 Clinton, 3 Bush-41, and 7 Bush-43.
Steve,
Stalling was my original thought, but having reviewed some of the briefing, I think it' stalling and then some. Here's an excerpt from a footnote to the ACLU's Reply Brief in the SJ motion:
As the Court noted in its Order of June 2, 2006, the government has not filed a substantive opposition to plaintiffs’ motion for partial summary judgment; instead, it has petitioned the Court to stay consideration of plaintiffs’ motion until the Court has considered the government’s motion to dismiss. Plaintiffs nonetheless file this Reply to address arguments that the government raised in its papers and that plaintiffs expect the government to press in oral argument on June 12
So it looks like this is the sequence:
-- ACLU files motion for summary judgment first.
-- Gov't files motion to continue the SJ (denied).
-- Gov't refuses to file anything in response to SJ, but renews motion to continue (again denied, but with permission to make arguments and submit materials at oral argument).
-- Gov't files motion to dismiss (not sure exactly when this happened in the sequence, but around here).
-- ACLU files reply brief, anticipating what arguments gov't might make by looking at other briefs.
-- Oral argument of SJ.
-- Normal briefing of Motion to Continue.
-- Oral argument of Motion to Dismiss.
-- Court issues single order covering both motions.
So the government submitted exactly zero briefing in opposition to the motion for summry judgment, instead relying entirely upon its motions to continue and motion to dismiss. This is gamesmanship. In the spirit of the main, post, here's what the government could have done: It could have submitted a response brief to the SJ motion, making exactly the same arguments it made in the motion to dismiss AND the arguments made for it by Publius and others (the state secrets doctrine is an evidentiary doctrine -- it would have been a good argument as to why the ACLU couldn't provide sufficient evidence to get SJ); It could have submitted classified material with a motion that the classified material not be considered unless and until the judge had decided upon the motion to dismiss; Ultimately, it could have done any number of things.
Instead, the government decided to file nothing, and dare the judge to enter SJ against it if it lost on the motion to dismiss. In response, the Judge (and the ACLU) actually made some of the Gov't's arguments for it by drawing from other briefs. And we should fault the Judge for this?
At most, the Judge can be faulted for not having a coordinated briefing schedule and a single oral argument which would have allowed the Gov't to make its state secrets arguments only once. But by issuing a single order, she largely corrected that.
Procedurally, I just don't see the problems Publius does. There may well be evidence that could have and should prevented SJ from being entered. But the Gov't never offered any (unless the sealed file has some -- but none of us know one way or the other).
i mean, you don't strike these sort of programs down b/c the government didn't file a 56(f) affidavit.
Live by the rules of civil procedure die by the rules of civil procedure. The court must rule on the motions it has, not the motions it would like to have. If, as it seems from above, that the gov't only argued state secrets, AUMF, and Art 2 powers that was their bad.
When I was clerking my judge in every SJ motion would want to know just one thing from the non-moving party - where is the dispute to material fact. You make a good general case and ahd you briefed the case the gov't might have won (or at least not lost). But you have not pointed to specific material facts in dispute. Are there some? It seems likely, but the gov't didn't want to bring them to the court's attention.
Look, what I think happened here is along the lines of what C Carp was saying above. This administration is so in love with secrecy they just didn't want to reveal any facts. I mean, jebus, even their own lawyers can't find out about it. So there were no exhibits or even affidavits - you know, facts.
Once again it is not incumbent on the judge to make the other side's case in SJ. It is the duty of opposing counsel, once a prima facie case has been made, to show where there is a disputed issue of material fact.
Indeed, contrary to what you might say, if the judge did what you said it would be a sort of judicial activism - taking judicial notice of facts not presented or argued.
What we have here is a very important case that was argued very poorly. But to blame the judge for that is just silly. Maybe the admin's lawyers should have spent less time at Federalist society meetings and more time studying civ pro.
Fourth Amendment reasonableness is one of the most fact-intensive inquiries in constitutional law.
Oh don't tell me that you reject the idea that warrantless searches are presumed unreasonable unless they fall within one of the narrowly drawn exceptions to the 4th amendment. I pretty sure Scalia has not gotten his way yet in that the reasonableness of the search is a separate determination from the warrant requirement - i.e. any reasonable search does not need a warrant. Since it was admitted that they did not have a warrant it was incumbent of the gov't to show which exception applied or make an arguement for a new exception.
My publius is a bad, bad publius.
Typo correction, in the "bullet points" in my previous post, the third-to-last should have read
-- Normal briefing of Motion to Dismiss.
OK, one more bit then I'll let it rest. This analogy is somewhat imprecise but here it is: It seems to me that your argument is like a murder defendant arguing, after the state has presented its case, the defense moves to dismiss and argues that he was with his doctor the night of the murder but he can't produce the doctor because that would violate his doctor-patient priv.
And the judge (let's assume a bench trial here) dismisses the state's case because it is possible that he was with his doctor that night, even though there is no testimony to that fact. He might be really sick and often be with his doctor, making it even more likely that he was with his doctor. But until he produces the doctor or testifies himself, that's all it is: a possibility not a factual dispute creating reasonable doubt.
It would, of course, be a stupid way to argue a murder case but if he ran with it and lost you don't get a second bite at the (factual) apple.
I agree that the court ruled on issues that it didn't need to to decide the case. And perhaps the court overreached. But to say that it was a procedural atrocity is just goofy.
again - motions to dismiss generally (universally) put everything else on hold, particularly that go to the court's ability even to decide anything about the case.
second, even assuming it was proper to even think about SJ at this point (which it wasn't), the standard wasn't met here. that's getting lost here. it wasn't like the ACLU was attaching deposition transcripts and discovery requests, etc. they took a collection of scattered newspaper quotations and some affidavits from people who "may" have been surveilled and said "decide this." it wasn't like the government said, "there are no other facts we'll submit."
the court disingenously seized on this to rule on major constitutional issues within SEVEN MONTHS OF THE FILING OF THE COMPLAINT and without even trying to apply the facts to the law.
it's rare that i do this, but i couldn't disagree more with many of the arguments in the comments today. the court abused the system, plain and simple
i.e., the government did say that some of hte "undisputed facts" were in fact disputed. that alone beats SJ at this early stage - even assuming the court should be thinking about it.
i mean, to just unilaterally declare that you know the UNIVERSE of facts for the UNIVERSE of defenses is pretty close to judicial malpractice.
i apologize for being snippy, but this is just not how things are done in practice. it's unheard of.
That's what some of us have been saying about the abministration and it's law breaking for years, now.
i mean, to just unilaterally declare that you know the UNIVERSE of facts for the UNIVERSE of defenses is pretty close to judicial malpractice.
Is that an impeachable offense?
So is glen geenwald right in arguing
snip
Everyone has been debating these legal issues for the last 8 months. Everyone knows what the issues are, what the arguments are, what the relevant cases are, etc. Judge Taylor was not going to convince anyone of anything new even if she unleashed some sterling legal opinion. And no matter what she said, the Sixth Circuit -- and probably the Supreme Court after that -- is going to look at all of these issues anew, from scratch, without regard to what the District Court said about these matters.
Look at any judicial ruling of any significance -- Youngstown, Brown, Hamdan, Miranda, whatever one's favorite case is. Nobody knows, remembers, or cares what the District Court even ruled in those cases, let alone the quality of the reasoning, because it does not matter.
Just wondering, what do you think of Glen Greenwald's arguments, particulary his opinion that the quality of the judges reasoning is irrelevant?
http://glenngreenwald.blogspot.c...bout-
judge.html
that's my next post - i'm responding to that.
i like greenwald a lot, but that's a radical argument and one that mirrors the Bush administration in that it ignores the rule of the law for the desired result. stay tuned.
The issue of whether the court should have given the government a chance to submit additional briefing has been addressed repeatedly, so I won't get into that. I'll just point out that it's entirely possible there were conferences with the court at which it was made clear what would and wouldn't be decided, or similar events that wouldn't jump out at us just from perusing the docket.
What I think Publius is missing here is that, by allowing the facts to be framed in terms of the government's public statements, the court actually accepted the version of facts MOST favorable to the government. After all, we have no idea what this NSA program really involves; the NSA could totally be spying on Howard Dean and John Kerry, and we'd never know because the plaintiffs don't get discovery. Instead, the court took the government at its word that the only surveillance taking place involves international communications with actual terrorism suspects and the like. If we knew the actual deal with the program, it might look a lot less constitutional.
Keep in mind, also, the government got to make a submission, under seal, of the matters it believes would aid its defense. The court reviewed it and found it irrelvant. The fact, apparently, is that the government simply doesn't have anything material to say beyond what the Attorney General and others have already publicly admitted.
As for the Fourth Amendment issue, while I'm shocked the court would make such an obviously overbroad statement as "warrants are always required under the Fourth Amendment," Greenwald correctly points out that the court isn't required to spend pages and pages analyzing exceptions that the government hasn't argued for. Also, I'd note that while Prof. Kerr seems to really like the "border search" argument, it appears flatly wrong to me. Just look at the case he cites, U.S. v. Ramsey, which holds that the government has the power to inspect international mail for contraband, under the theory that sovereignty necessarily implies the power to determine who or what comes into the country, but NOT the power to read the contents of incoming correspondence. Obviously, international calls are far more like textual correspondence than they are like a package which might contain contraband.
Finally, I'd note that it's not as easy as Publius might like it to decide this case without reaching constitutional issues. Once you get past the threshold issues of standing and the state secrets doctrine, the government is arguing (1) the program is constitutional and (2) there is no violation of FISA because FISA is unconstitutional. The only way to decide this case on statutory grounds would be for the court to find that the program actually complies with FISA, which seems clearly false.
laurence tribe also seems to side with greenwalds argument.
http://balkin.blogspot.com/2006/...ge-
taylors.html
snip
It's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.
Interesting. I don't think it's all that clear one way or the other.
Others argue that the govt. tried to stand and fall on the state secrets arguments and didn't make any arguments substantively. This is sort of like not opposing a motion. Last I checked, there's no exception for "really important issues everyone's gonna care about". If something is not briefed, courts sometimes steamroll right over it. (Think about how often litigants with meritorious arguments get blasted in the habeas context.)
As to your argument that the court should have ruled in stages, the govt. asked for clarification after denial of the stay. It's unclear whether the Court ruled on the govt's request.
However, I think the judge knew if the standing/stay/state secrets issues were resolved separate from the merits the first decision would have been immediately appealed. This decision preempts that appeal.
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