Up to now, the problem has been that nobody challenging the legality of the program could establish legal standing to sue because they could not prove they were put under surveillance. That kind of information is secret, y’know. But in one case in Oregon, the plaintiffs claim to have actual evidence of warrantless surveillance. Story here.
So, will this get to court? And what will be the outcome?
In This thread from 2006, I predicted that the district court, which had ruled the program unconstitutional, would be reversed by the Sixth Circuit. In fact, I placed a number of bets on it:
Hamlet, Billdo and Oakminster all took me up on the bet, and on July 6th of this year, the Sixth Circuit made me proud.
Assuming these plaintiffs are found to have standing, I predict again that they will ultimately lose on the merits.
Care to make it interesting?
Never mind bets. Care to make an argument? A legal argument?
Sure. I provided an outline of what I contended the correct legal analysis was in the linked thread.
However, to provide more succinct detail: the plaintiffs in the case mentioned in the earlier thread claimed that the surveillance program violated the First and Fourth Amendments, the Separation of Powers Doctrine, the Administrative Procedures Act, Title III of the Omnibus Crime Control and Safe Streets Act, and the Foreign Intelligence Surveillance Act.
Each of these claims is either unavailing on its face, or faces certain doom at trial if the government invokes the State Secrets Doctrine to bar the discovery or admission of evidence that relates to national security.
To save myself typing, perhaps you could identify which of the plaintiff’s claims you feel has merit, or identify another claim that was not advanced by the plaintiffs in the instant case that you believe would prevail, and I can address a specific legal argument to that claim. I don’t want, for example, to type three paragraphs rebutting the Title III claim if you concede up front that it has no merit.
So the answer is “No, I don’t want to make a legal argument.”
No.
Read again, carefully.
I provided the outline of a legal argument in the linked thread.
Here it is in abbreviated form:
THAT is my legal argument.
What do you find insufficient about it?
If the latter happens, it will not be an instance of the case being decided “on its merits” for purposes of this discussion. That is, we still will have no definitive ruling on whether the surveillance program is lawful or unlawful.
I reviewed the earlier thread, and your only legal arguments presented therein are:
And:
Neither of which clearly addresses the legality of the program as such.
I’ve reviewed the story linked in the OP and it says nothing about what theories the plaintiffs argue as to the surveillance program’s legality; it discusses only evidentiary matters, i.e., whether the recollections of plaintiffs’ counsel can be used to prove the existence and content of the documents in question.
Kafkaesque indeed. But let’s leave all that aside. What legal arguments do you have to offer that the surveillance program is lawful? That’s the only issue on which I, for one, would be willing to bet a dollar (but probably not even a dollar; I rarely bet on anything).
Other way around. If you contend something is UNlawful, you must point to a law that is purportedly violated by the conduct.
As I said in post #4 above:
The earlier plaintiffs made those specific claims. Are you adopting those claims in toto? Are you pushing only one of them? Do you have some other grounds, not relied upon by the ealrier plaintiffs, to contend that the program is illegal? What?
My response to What legal arguments do you have to offer that the surveillance program is lawful? is: it violates no laws. If you say it does, it’s up to you to point out those laws. and then it’s up to me to show why the program does not violate those specific laws.
Let’s take it as assumed, WRT to the legality of the program as opposed to the plaintiffs’ standing to sue, that I agree with Judge Anna Diggs Taylor’s opinion (pdf file) in ACLU v. NSA:
Tell us what flaws you see in her reasoning and/or her conclusions.
It’s unclear to me why, if you wish to limit the discussion to the legality of the program as opposed to the standing to sue issue, your first quote is in support of the standing issue. But I will take you at your word, and assume that you don’t wish to discuss standing.
The plaintiffs complain that their confidential communications are being intercepted constitutes a violation of the First Amendment. I am unaware of any precedent for such a claim. First Amendment claims go to freedom of expression, and the very effort to keep their communcations secret is fatal to a claim that the First Amendment is implicated. See Gordon v. Warren Consolidated Board of Education, 706 F.2d 778, 781 n.3 (6th Cir. 1983) (Holding that surveillance, even if it violates the Fourth Amendment, does not violate First Amendment rights, even though it may be directed at communicative or associative activities.)
The Fourh Amendment claim is different. The remedy for Fourth Amendment violations is typically suppression of the evidence gained in derogation of the Amendment. However, Fourth Amendment rights are personal, and may not be asserted vicariously. If police conduct a warrantless search of my home and find evidence that implicates you in a crime, you cannot seek to exclude that evidence on Fourth Amendment grounds, because your Fourth Amendment rights were not violated. See Alderman v. United States, 394 U.S. 165 (1969).
The President’s claimed power does derive from the Constitution. The President, like Congress and the courts, must be assumed to have the power to carry out his responsibilities under the Constitution. His conduct cannot violate the First and Fourth Amendments, yes, but no one has shown that they do, as I explained in the previous paragraphs.
PREVIOUS POSTERS, IN CHORUS: Oh, THOSE legal arguments!
(THEY ALL SUDDENLY FIND OTHER THREADS MUCH MORE INTERESTING)
EXEUNT, and CURTAIN.
But, can legislation (let alone executive policy) that authorizes routine violations of the Fourth Amendment be constitutional?
Typically, of course, is not always. And Bricker, don’t say we’re leaving… some of us do like to step in when the legal arguments come up. This is quite fascinating stuff.
Sorry. But it did take you a month to respond; surely you can see why I might have lost hope. 
And vibotronica, after boldly declaring that I was saying:
seemed to have completely vanished from the thread after seeing the argument in question.
I mean, I know I’m good, but that was fantastic even for me.
I don’t know, although I doubt it. But no one has established any particular violations of the Fourth Amendment.
BrainGlutton, do you mind my asking what area of law you practice?
Since our wager ended in a push (the standing issue is a cop out to me), I’ll take the same action in this case. If the court gets to the merits and rules against the administration, I get a nice bottle of wine on you. And, if the court gets to the merits and rules for the President, you get a nice bottle of wine on me, and the Constitution gets crumpled up and thrown in the wastebasket. If the court rules on the standing or state secrets without getting to the merits, it’s another push.
Is it a bet?
And you find this reassuring? Given the Bushiviks spotless reputation? For transparency and candor?
I was unmoved by Judge Taylor’s First Amendment reasoning. Although I can see the “chilling effect” on free speech that the TSP has, I’m unsure it would amount to a Constitutional violation. Clearly, that part of her opinion was the weakest. Considering I found the entirety of her opinion to be poorly reasoned and poorly written, that’s saying something.
That’s more akin to the standing issue than the merits of the argument. I think it’s pretty clear that, if the government is intercepting communications of a US citizen without a warrant, it violates the 4th Amendment. There is certainly room to argue that there is no reasonable expectation of privacy in international calls, or that intercepting international calls is akin to a “border search”, but, all in all, I think those arguments are unpersuasive. I also think your “remedy” issue is a red herring, the violation occurs when the communication is intercepted, regardless of whether or not it is ever used in court.
I have gone over the NSA wiretapping program’s legality and constitutionality in many threads here and elsewhere. I am completely convinced that, from what we know, this adminstration has broken the law, without repurcussions, for 5 years, and, likely, has violated the Constitution. I, and a majority of legal scholars, have found the two legal arguments the DOJ has made on the merits (that the AUMF authorized it and that FISA is unconstitutional) are utterly laughable, not to mention contemptible.
And, yes, I’m still pissed our spineless Congress hasn’t done dick to stop it, and, instead, scrapped the law. Goddamnn cowards.
Please cite. It would make my day.
"The government is now trying to prevent the court from using Al-Haramain’s lawyers’ memories of the document as evidence that they were put under warrantless surveillance.
“The level of secrecy in this case strikes me as extraordinary,” said Nancy Marder, a Chicago-Kent College of Law professor who specializes in litigation secrecy. “It has sort of a Kafkaesque air to it. You can’t see certain documents. You can’t recall certain documents, You can’t use the documents that might exist.”
These quotes are, to me, one of the weirdest parts of the case. Not only did the attorney’s have to give back the document that shows the plaintiff was surveilled, but now they want to argue that they can’t even testify about their memory of the document that the Justice Department still has. The fact our government is arguing that, although the fact of the surveillance is uncontested, it is too secret to talk about is truly scary to me.