One for our side, at least for now


I just finished reading Judge Taylor's decision in ACLU vs. NSA (copy available here , page down in right hand column), in which she held the Bush wiretapping program illegal and unconstitutional. It all makes sense to me. I understand that the sixth circuit, in which she sits, has a conservative Circuit Court bench, so the question is: what grounds will the Circuit Court choose for reversal.

The judge ruled on 3 distinct issues:

1. Did the state secrets privilege apply to the case?

2. Did the plaintiffs have standing to challenge the Administration's actions? For the non-lawyers among you a brief explanation. A person who chooses to sue another must be able to allege that he or she has suffered some concrete injury as a result of the action or inaction of the person sued. To pick a simplistic example: if you fail to shovel your sidewalk and I walk on it and do not slip, I cannot sue you. If I slip and am hurt, I have standing to sue. (I can actually make a strained argument that I have standing either way (at least to seek an injunction), but I think the example suffices to explain the general principle.)

3. Does the program violate the constitution and/or statutory law? Within this broadly stated issue are a number of subsidiary issues, which we don't have to go in to for purposes of this discussion.

The judge dealt with the issues in the order in which I set them out, but unless I am greatly mistaken, she could have dealt with the first two in the reverse order without any violence to customary norms of legal analysis. The two initial questions are both jurisdictional in nature. Under established case law, jurisdictional questions have to be answered before you reach the merits.

So, how will the Sixth Circuit reverse? I don't think many judges would want to put their name on a decision that would do such violence to established case law or the Constitution as to rule in Bush's favor on the merits of the case. The courts are not ready to declare Bush a dictator just yet (at least not formally), and may be even less inclined to do so if the Republicans are routed in November, which will likely pre-date any decision on appeal. So the judges will have to reverse on the first or second grounds.

My vote goes to standing, which the court will address first ("We need not decide the other issues raised by the parties, as we find that plaintiffs lack standing to make these claims"). There are two reasons for this. First, the court can totally avoid having to deal with any of the civil liberties or constitutional issues raised by the case. There is something a little fishy about the state secrets privilege, especially as the Bushies are trying to use it here. Why go there? Second, the court can rule that the plaintiffs lack standing without doing much violence to established case law. It can do this by lying about the actual effects of the policy on the plaintiffs (Appellate courts often ignore evidence in the record or misrepresent it in their decisions. After all, who can stop them?) or by citing only those cases that appear to support their position, while ignoring the inconvenient cases cited by Judge Taylor. This happens all the time too.

There's another benefit to ruling on the standing issue. If another such case were brought against a Democratic President (who would deserve to be sued, but that's another issue) it would be relatively easy to distinguish some other plaintiff from those in ACLU v NSA, even if there were in fact no practical distinction. A ruling on the state secrets privilege, or God Forbid, the actual merits of the case would be harder to distinguish. Since these decisions are becoming increasingly political, an activist reactionary court would want to preserve its ability to rein in a Democrat.

Final question, will the Supreme Court reverse the Sixth Circuit? My guess is yes, if no one dies in the meantime. Justice Kennedy has signaled his growing disgust with the man that he appointed to the presidency. If there is an empty seat (and assuming one of the rational to semi-rational five has vacated said seat), the tie goes to the Sixth Circuit winner. If a new justice has been seated (with Holy Joe, if he survives, voting against the filibuster), then the Republic loses, 5-4.

I'll try to keep an eye on this and follow up when the Sixth Circuit decision comes down.
Posted: Saturday - August 19, 2006 at 10:08 PM          

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