Frank’s Case Book

This week, in a 2-1 decision, the 6th District Court ruled that the American Civil Liberties Union (ACLU) and fellow litigants did not have standing to sue the National Security Agency over the Terrorist Surveillance Program or (TSP). Under the terms of the program, President George Bush had authorized the use of warrantless wiretaps, when one end of the communications is in a foreign country. It is clear that NSA does not need a judge-issued warrant for eavesdropping on international conversations. It is also clear that if the wiretapping involves people entirely within this country, the government needs to seek a warrant. It is certainly less clear what the limits are on executive authority in this in between situation.

There had been some mixed limited opinion at the District Court level on this issue, but there was no definitive legal judgment on the matter at the Supreme Court level. This case potentially can provide an important opportunity to plumb new depths of Constitutional law on an issue that is likely to play an important role in the War on Terror for decades. Instead, District Court Judge Anna Diggs Taylor used it for polemical advantage and little legal reasoning. Taylor not only ruled that that the litigants had what many conceded was questionable standing to sue, but that the TSP violated the First Amendment (for its alleged chilling effect on communication) and the Fourth Amendment’s prohibition against unreasonable search. She then issued an immediate injunction banning the communications intercepts at issue.

One might have had a hint as to what the 6th District decision would decision ultimately be when they quickly issued a stay of the judge’s order. The case became more complex when it turned out, that Taylor served on the board of a nonprofit organization that made regular grants to the ACLU. Judge Taylor was probably not violating the law by not recusing herself from the case, but it would have improved judicial transparency and her credibility if she had addressed the issue directly.

The initial press reports on the decision focused on the number of pages in the decision as if pages are a unit of measure for clarity and wisdom. After further consideration, most have now concluded that Taylor’s decision was poorly reasoned. Even the Washington Post, that is sympathetic with the notion that the TSP exceeds Presidential authority, had to concede that the judge’s decision was “neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard hitting.”

The 6th District Court overruled Taylor in a minimalist decision. It concluded that since the litigants could not prove that any of their communications had been intercepted, they could not prove that TSP had done them any harm. The New York Times, in the third paragraph of their reporting of the 6th District Court’s decision, dutifully repeat the ACLU’s argument pointing out that the secrecy of the program it is own protection. Since, no one knows if they have been wiretapped no one could ever have standing to sue.

The Constitutional system does have a way to deal with these issues. It is through the political process and legislative representatives that these broad issues are dealt with. The 6th District Court of Appeals cited the US Supreme Court in United States v. Richardson:

“It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the `ground rules’ established by the Congress for reporting expenditures of the Executive Branch.”

Ultimately, it is the inability to remember this that condemned Jude Taylor to yield to the temptation of using the law for partisan political ends. With this 6th District Court decision, reason and judicial temperance have now prevailed.

The President has just commuted the jail sentence of “Scooter” Libby for his conviction of perjury and obstruction of justice in the case of the leak of Valerie Plame’s name. This decision is consistent with the recommendation made here a few weeks ago. See Unforunate Guilt. 

In 2004, the Wisconsin Right to Life (WRTL) organization wanted to run a television ad that criticized the fact that some Senators were using “filibuster delay tactics” to prevent federal judicial nominees from coming to an up-or-down vote. The ad concluded with the suggestion to “contact Senators Feingold and Kohl and tell them to oppose the filibuster.” This ad was to run during the 30 day period before a federal election. The Bipartisan Campaign Reform Act (BCRA) proscribed ads that refer to a candidate within this period.

Recognizing the potential problem, WRTL applied for injunctive relief claiming its First Amendment rights were being violated. The relief was denied, but ultimately the WRTL was able to present its case before the US Supreme Court.

This was not the first time that BCRA had been challenged. In McConnell v. FEC, decided when Justice Sandra Day O’Connor represented a swing vote on the Court, the Court allowed the prohibition against “electioneering” ads or their “functional equivalent.” The Court believed that the mention of a candidate’s name made any ad the functional equivalent of electioneering and not “expressed advocacy” of a position. Expressed advocacy is still permitted.

In WRTL v. FEC , the Court led by Chief Justice John Roberts, narrowed the McConnell decision. It found in favor of WRTL, arguing that the strict scrutiny required in First Amendment cases was not met by the “functional equivalence” test. Any doubt must be decided in favor of free speech rights. An ad could be considered to be engaged in electioneering “only if the ad is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate.”

Although the Court saw no reason offered by this particular case to re-examine McConnell in full, it suggested that it might do so sometime in the future. In Roberts’ concluding paragraph of the majority decision in WRTL v. FEC, he argued that the “Framers’ actual words put these cases in proper perspective…when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban — the issue we do have to decide — we give the benefit of the doubt to speech, not censorship. The First Amendment’s command that `Congress shall make no law … abridging the freedom of speech’ demands at least that.”

Presidents have legacies that last far beyond their term. President Ronald Reagan had many positive legacies, not the least of which was the end of the Cold War. However, on the nomination of Justice Sandra Day O’Connor, whose unfathomable jurisprudence often provided the decisive difference between a Court that protected the Constitution and one that thought law was malleable to the tastes of justices, Reagan erred. Through the appointment of Chief Justice John Roberts, who replaced Conservative Judge William Rehnquist and Justice Samuel Alito who assumed O’Conner’s seat, President George Bush has taken important steps to mitigating that error. It should be remembered that Bush had to be persuaded by the Conservative base that his first choice, Harriet Miers, did not have the appropriate judicial experience for the Court. She might have voted on most issues parallel to Alito, but her participation on the Court would have been far more of a crap shoot than Alito’s. We are now seeing the delicious fruits of a real movement toward to the Right.