Friday, August 18, 2006

NSA decision will be partially upheld if standing argument is accepted

The decision by the federal district court judge in Michigan holding the NSA program unconstitutional may be overturned in the appellate courts, including the US Supreme Court, on "standing" grounds ("Standing" is a legal concept that requires a positive answer to the question: "Does this individual suing have a true injury in order to make the claim presented?"). Standing cases, of which I've done my share of surveys, are not consistent nor often logically sound. In this case, I share the federal court's sense that the plaintiffs are likely harmed and that a strict requirement would create a Catch-22--because the government is denying access to information on the basis that it implicates "state secrets." However, it would not be the first time a Catch-22 argument was accepted by a court that did not want to hear a case.

The next question, then, is if the people suing are found to have standing, will the judge's decision be upheld? Semi-simple answer: Yes, at least in part.

Which part will be upheld? The part that says the Bush administration needs to get FISA clearance first before embarking on the trolling for phone call numbers. I have little doubt the US Supreme Court will find FISA constitutional and not an encroachment on the powers of the Executive branch.

Which part won't be upheld? The judge's Fourth Amendment analysis. Here, the judge was too general and failed to attempt to distinguish the US Supreme Court decision in Smith v. Maryland, 442 US 735 (1979), which could provide sufficient support for the adminsitration's position on Fourth Amendment, though not FISA, grounds. My post on the subject on May 13, 2006 looks pretty good, I have to say, even as it relies on able analysis from other law professor bloggers.

Those able law profs, Orin Kerr and Glenn Greenwald, each provide more detailed analysis (though I don't know why either prof mentioned Smith v. Maryland when discussing the Fourth Amendment analysis.).

Me, I've got to get to the office this morning as we just got crushed with additional work--and I don't have time to comment on the right wing criticism of the judge as (a) black; (b) the former wife of a Democratic Party congressman; (c) to her views on affirmative action or (d) to whether the opinion the judge wrote was sufficiently "scholarly"--as if the opinions of many federal district level judges, who handle hundreds of cases at a time, have to be scholarly. In other words, give the judge a break (My only criticism of the judge's decision is that it should have at least attempted to distinguish the Smith v. Maryland case when discussing the Fourth Amendment issue.).


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