The 6th District Wiretapping Decision (Updated)

So let’s see if I’ve got this straight:

  1. A Mayor announces publicly that he’s given himself the right to walk into any house in town and go through anybody’s personal effects, without permission from either them or a court, if he thinks they might be involved in criminal activity.
  2. A number of prominent members of the Mayor’s opposition, along with critics of his policies, notice shortly thereafter that someone broke into their homes and searched them. They call the police.
  3. The police investigate but when the homeowners try to find out what the evidence shows, they discover that the Mayor has declared the evidence “secret” on the grounds that releasing it might tip his hand to criminals, and he refuses to allow it to be seen by anyone except himself, select members of his re-election team, and police officers loyal to him.
  4. The homeowners bring suit against the Mayor on the grounds that they have “a reasonable expectation” that the Mayor was the one who broke into their homes, seeing as how he announced that’s what he planned to do, and ask the court to declare the Mayor’s assumption of such powers to be illegal – which, absent the Mayor’s solo declaration that it isn’t, it is.
  5. The Judge agrees with them, but when the Mayor appeals to the City Superior Court – where, of the three judges, two are loyalists of his party and one of them was appointed by him – the Superior Court overturns the Judge’s ruling because the plaintiffs can’t prove it was the Mayor (what with the evidence being locked up and all) and therefore “have no standing” – ie, they can’t prove that a) “they were harmed”, or b) the Mayor was the one who did it.

That’s essentially what just happened in the 6th District Court of Appeals over the ACLU’s wiretapping suit.

In a split decision, two Reaganite judges, one of them appointed to the 6th Circuit by Bush, dismissed the ACLU suit on the grounds that, even if they were in fact wiretapped by a Federal agency, the plaintiffs couldn’t prove they’d been harmed by it or who had done it. They couldn’t even prove it had been done because the wiretapping records are “national secrets”. “A reasonable expectation” – the grounds on which the Detroit judge found in their favor – was not enough.

The lead judge who wrote the majority opinion is one Alice Batcheldor. A lifelong Republican – and a very conservative, Reaganite Republican at that – Bacheldor was appointed to the 6th District by Reagan in 1985. For 20 years she was a fairly reliable strict constructionist, which meant that she occasionally found it necessary to vote in favor of the Constitution, much as she might have wished to do otherwise.

That is, she was strict constructionist until a couple of years ago when there was a change in her pattern of decision-making.

One reported candidate for Justice O’Connor’s seat is Judge Alice M. Batchelder of the United States Court of Appeals for the Sixth Circuit.


It was rumored that Alice Batchelder was on the Administration’s short list at some point, but, according [to] Fox News’s Brit Hume, her name was removed for a record of “judicial activism.”

“I can tell you this about Alice Batchelder. She was very, very closely vetted. And you know what they found? They found all kinds of evidence of activism in her record. And they were quite surprised and not pleased to find that,” said Hume.

Immediately after that, Judge Batcheldor’s rulings seem to have taken a radical turn to the Right. For instance, she went from being a libertarian-style free speech advocate who believed in the separation of church and state to a free speech advocate who didn’t, writing that it was OK for a judge named DeWeese to post the Ten Commandments in his courtroom because it was “a poster whose text is so small that it cannot be read from the jury box, the witness stand, or the bench”, and because there were secular posters as well.

[A] poster of the Bill of Rights; three framed posters of Jefferson, Hamilton, and Madison that praise the jury system; the seal of the State of Ohio and the state motto “With God All Things Are Possible”; a portrait of Lincoln; and the United States and Ohio state flags.

She was unconcerned by the visual equivalence of the Ten Commandments to secular law because the state’s slogan had the word “God” in it, making its presence obviously necessary so Judge DeWeese “could use them in addressing community groups that come to the courtroom to learn about the origins of the law and legal philosophy.”

Uh-huh. I guess losing a seat on the SCOTUS due to insufficient right-wing toadying can do that to a person.

The concurring judge, Julia Smith Gibbons, was appointed by Bush in 2001 and has proved to be the kind of conservative jurist willing to make decisions disemboweling laws the right-wing doesn’t care for. In one disabilities case, her decision actually effectively ignored the fact that the plaintiff was disabled, leading the dissenting judge to write that the –

majority opinion errs in its application of the ADA to the facts of this case, applying the statute in a manner that essentially eviscerates the ADA’s purpose and renders the ADA impotent in its ability to provide recourse for disabled individuals, such as Helen Jones, who face a form of discrimination which Congress has explicitly prohibited.

(emphasis in the original)

No wonder Bush likes her. She’s his kind of jurist. She doesn’t think being disabled means that a law protecting the disabled should apply to you, and Bush loves that kind of logic when it’s applied to the appropriate (read: Liberal) laws.

Technically, this decision does NOT make Bush’s illegal wiretapping OK. It just means that in order to challenge it, any future plaintiffs would have to prove:

  1. that they’d been spied on through means of a wiretapping device;
  2. that the govt was responsible for placing said device;
  3. that they had suffered some sort of “harm” from it, preferably monetary.

Unfortunately, as the ACLU lawyer pointed out, that means that for all practical purposes Bush’s law-breaking can continue as long as he keeps the targets secret.

Steven R. Shapiro, the ACLU’s legal director, said: “As a result of today’s decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.” He said the ACLU is examining its options, including the possibility of an appeal to the Supreme Court.

Right. Anybody smell another 5-4 decision in Bush’s favor coming up?

Still, the possibility of proof may not be totally off the table.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) called the court decision “a disappointing one that was not made on the merits of the case, yet closes the courthouse door to resolving it.” The panel has been conducting an investigation into the warrantless wiretapping program. Last month, it issued subpoenas to the administration, seeking documents related to the program’s “authorization and legal justification.”

Something may come from such a subpoena – provided the Administration doesn’t ignore it on grounds of “executive privilege”, which for the Bush/Cheney gang seems to include anything whatever done by anybody whatever anywhere inside the walls of the presidential bunker White House. Of course, that’s practically the definition of “forlorn hope”.

You can read the decision for yourself here (WARNING! .pdf file). You might want to pay attention to Judge Batcheldor’s notations, wherein her favorite authority – the one she cites most often for support of her argument – is none other than Gonzo.

That she does this seemingly without irony is a testament to the well-known stunted nature of the right wing’s sense of humor.

Basically, what this highly conservative decision says is that if the Prez won’t tell who he illegally wiretapped, the wiretapping was therefore legal. You gotta love that kind of logic.

Update: Constitutional lawyer Glenn Greenwald backs up my conclusion that yesterday’s ruling is NOT a validation of Bush’s illegal wiretapping.

While the two judges in the majority did not rule on the legality of the program, the third judge — Judge Gilman — agreed with Judge Taylor’s finding that the President’s program violated FISA. He thus wrote that he “would affirm its judgment,” and he rejected the administration’s standard two defenses for that behavior (i.e., (1) that AUMF implicitly authorized FISA violations and (2) the President has “inherent authority” under Article II to eavesdrop with no warrants). In fact, just as was true for Judge Taylor, Judge Gilman found that while the “standing” issue was a close one, the actual merits — i.e., whether the President broke the law — was not close:

The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier . . . . [The administration’s] AUMF and inherent-authority arguments are weak in light of existing precedent and statutory construction.

The two judges in the majority did not dispute any of this. Instead, they ruled, roughly speaking, that because the program was conducted in secret, the plaintiffs cannot prove that they were subjected to warrantless eavesdropping and thus lack “standing” to contest the legality of the NSA program.

And he warns the Right against celebrations of this decision as some sort of “victory”.

Any journalist or Bush follower claiming that this decision constitutes vindication for warrantless eavesdropping — or that it constitutes a repudiation of Judge Taylor’s finding that the President broke the law and violated the Constitution — is deeply confused and/or engaged in a campaign of deceit. Even worse than that, anyone celebrating this result is essentially celebrating a situation where our government leaders are able to act in secret — even when the law makes it illegal to do so — and as a result of this secrecy, block courts from ruling on whether they broke the law.

Unlike me, however, Glenn defends the concept of “standing” if not its “atrocious outcome” (scroll down to point 3).

As technical-seeming as it is, “standing” is a critically important constitutional limitation on the power of the judiciary. Independently, whether one believes in the merits of this doctrine or not, it is a requirement that must be fulfilled before the Constitution permits a court to rule on any matter. And there is good reason for that.

Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act (“The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party”). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

The role of a federal court is thus confined to resolving actual, specific disputes between specific parties where, in essence, one party has harmed the other. If such an injury is lacking, it means that the plaintiffs in a case are basically asking the court to simply issue abstract rulings — i.e., “is the Government’s warrantless eavesdropping program legal”? — rather than resolving an actual, specific dispute (“I was harmed by the defendant and am entitled to be compensated or otherwise have that wrongful conduct remedied”).

Independent of the question of whether the standing issue was correctly resolved here — and all of the judges appeared to believe that it was a close and difficult question — the standing doctrine is an important limitation on the power of courts. And that is true even when it produces atrocious outcomes (such as yesterday’s finding that our Government can break the law in how its spies on us but remain immune from judicial review as long as it keeps its lawbreaking a secret).

While he is, of course, correct when he describes the importance of “standing” in law, I don’t believe that doctrine was ever meant to apply to cases where an unConsitutional and illegal act harms the whole society rather than a few individuals. Schlepping a few blacks kids away from a Whites-Only lunch counter does them no real “harm” – they aren’t physically hurt and they can always get their lunch in a “black” diner – but it irreparably harms the society by openly contravening a Constitution that mandates that all citizens be treated equally by the law. The standing doctrine was used for decades to keep race discrimination suits out of court.

Ultimately, there may need to be (I’m surprised to read Glenn’s hints that there isn’t) a separate legal definition of “standing” that doesn’t require specific “harm” be shown to a specific plaintiff when the harm is manifestly shared by all citizens due to the wholesale destruction of our common liberty from patently illegal govt decisions – which, as Glenn points out, no one is arguing were legal. The Bush lawyers claimed the suit was “moot” because Gonzo had agreed to FISA oversight, and only the dissenting judge even addressed the legality issue, calling it “not even close”.

I thought that precedent had been established when separate-but-equal laws and Jim Crow laws were struck down. Apparently, I was wrong.

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