Sunday, August 20, 2006

This Publius is a mighty Publius

If you follow these things, you probably know that a federal judge on the Sixth Circuit on the US District Court for the East District of Michigan struck down the Bush Administration's secret spying program. Her strongest grounds for doing this were undoubtedly that it violates a Congressional statute, FISA, and that FISA has not been implicitly repealed by the Authorization for the Use of Military Force in the "War on Terror." Her shakier, although perfectly reasonable, grounds are that it interferes with freedom of association under the First Amendment to illegally wiretap dissident groups, and that the warrantless searches cannot be justified under the Fourth Amendment.

The Pithlord immediately wondered why the controversial constitutional rulings were necessary if a more straightforward statutory basis for the decision was available. But Publius has been doing the Lord's work demonstrating that she shouold never have got to this point on a summary judgment application.

The argument at Publius's and at Lawyers, Guns and Money quickly got to the point where the Pithlord felt he couldn't add value. To really advance things, I would need to know the US Federal Court rules, and how they have been applied, in some detail.

However, if I can add a comparative angle, the Canadian courts have held that it is almost never appropriate to strike down legislation or give a wide-ranging constitutional remedy on the basis of our equivalent procedures. As a lawyer, it bugs me to think that decisions of this magnitude could be made without giving the government a chance to provide its evidence or (really) make its argument.

My main point, though, is just to suck up. Publius, despite being a liberal supportive of the result, came up with a way better argument than any of the conservative lawyery-pundit-types, of whom there are many. He deserves wide exposure.

Like publius, I can't get too outraged about this -- the judge's actions outside her appropriate constitutional role pale in comparison to those of the Bush administration, and will likely be corrected on appeal. I suspect publius is doing a good thing for the cause -- since reversal of at least part of the decision is almost inevitable, publius's analysis might help some journalist somewhere realize that it is still a vicotry for the good guys if the Government's motion to dismiss is rejected at the appellate level. But however the politics play out, it is important not to cheat ... and good on Publius for thinking so.

Update: Charley has taken me to task in the comments. I'm obviously outclassed in discussing US Federal Court procedure, but I will try to post something explaining why I'm biased in favour of Publius' position (even though the bigger picture, surely, is the Bush administration's repudiation of the rule of law).


CharleyCarp said...

I disagree with Publius' analysis, and have said so on his threads and others. The government was in complete control of how and when it presented its arguments, and wanted to do it in a particular way. I would guess that even a Canadian court would rule against the government if it failed to present any evidence for its position at the proper time for doing so. The Sixth Circuit might send this back to the district court -- for what purpose, though, is not clear. The government doesn't need discovery to know what it's doing. It just needs to be told that it has to defend the conduct for real.

I'm more interested, though, in your reaction to this. What would a Canadian court do with a petition for habeas from these people? Or with the defense that combatants captured on the battlefield can be held until the end of hostilities.

a-train said...

Pith, check out this article on the decision by Erwin Chemerinsky, perhaps the preeminent authority on American Constitutional Law and the Federal Rules of Procedure.

I suspect that Publius, whom I have a great deal of respect for, just doesn't have the relevant experience at the District Court level.

CharleyCarp said...

Additional nits to pick:

1. Judge Taylor sits on the US District Court for the Eastern District of Michigan. Appeal therefrom will go (has gone, I should say) to the US Court of Appeals for the Sixth Circuit.

2. She had to reach the First Amendment issue, as it was a necessary prelude to doing anything else. It's a jurisdictional question, as state secrets privilege is not.

3. I think she was within her rights to reach the Fourth Amendment issue, rather than simply rule on the statutory basis: the claims are distinct, with the latter being much narrower. The alternative has her enjoining the program, the government appealing from the injunction, and then the constitutional argument being made for the first time on appeal.

4. The alternative in (3) is distinct from publius' alternative, which is to give the government an unearned 'mulligan,' deciding neither statutory nor constitutional issues. So it can take discovery it doesn't need, and make legal arguments that it doesn't want to make.

PithLord said...


When you ask what the Canadian courts would do, I'm not sure whether you mean doctrinally or whether they would have the political courage to act if the politics were similar.

Doctrinally, the Canadian courts have taken the relatively simple view that the Canadian state is always subject to its constitution everywhere. There are some practical issues that complicate that broad statement, and there has been no real call for the Canadian courts to develop a jurisprudence about battlefield capture.

Politically, I'd like to think the Canadian courts would be brave enough to withstand hysteria. Not that they always have in the past (Japanese Canadians, the War Measures Act in 1970). But since there isn't any contrary evidence yet, I will go with what I'd like to think for now.

In regard to your nits, I'm not sure I get #2. Couldn't the judge hold that the plaintiffs had standing because of their allegations about their First Amendment rights without necessarily holding that the First Amendment was, in fact, violated?

What I feel pretty strongly about is that courts shouldn't make rulings on a constitutional basis if they can decide whether these parties are entitled to these remedies without going to the constitution. If the judge could enjoin the program without going beyond the FISA argument, she shouldn't have gone beyond the FISA argument.