An airing of the NSA spying program

(This is another in a continuing series of reports on the impact that Supreme Court rulings have on later cases. The dispute discussed here, over the Executive Branch’s power to head off lawsuits against the government by claiming a “state secrets” privilege, can be traced back to a post-Civil War decision in 1875, Totten v. U.S., and to the landmark case on the privilege, U.S. v. Reynolds, in 1953. A somewhat related though much narrower ruling came in March of last year, in Tenet v. Doe, although the government does not rely upon that in this controversy.)

A federal judge has ordered the Justice Department to make a legal defense in a public court hearing of the National Security Agency’s program of communications monitoring during the war on terrorism — a program under challenge in federal courts across the nation. Senior U.S. District Judge Anna Diggs Taylor of Detroit on Wednesday denied a Department request to put off a hearing on the merits of a legal challenge in her Court until after she had ruled on the government’s claim that the case must be dismissed based on the “state secrets privilege.”

That is a significant rebuff to the Department’s efforts, now spread out in a number of cases, to put a swift end to claims in court that President Bush acted illegally and unconstitutionally in authorizing the NSA, after the 2001 terrorist attacks, to monitor calls or e-mails suspected of being to or from terrorists. . In fact, the Detroit judge’s order is such a serious setback that the Justice Department might be expected to try to challenge it with an immediate appeal to the Sixth Circuit Court, and perhaps to the Supreme Court. Judge Taylor’s action amounted to significantly more than a case-management order.

In Judge Taylor’s Court, a group of journalists, academics, attorneys and non-profit organizations last January filed a sweeping lawsuit to try to stop the NSA program. On March 9, they asked the judge to grant them a victory without a trial (summary judgment), saying there were no facts in dispute, leaving only legal questions about whether the program satisfies two federal laws that limit government wiretapping that reaches inside the U.S. The case is American Civil Liberties Union, et al., v. National Security Agency/Central Security Service, et al., docket 06-10204, in U.S. District Court for the Eastern District of Michigan–Southern Division.

The Justice Department twice obtained postponements of deadlines for it to respond formally to the summary judgment request. Then, without having filed such a response, it moved on May 26 to dismiss the case outright because, it argued, the case cannot go forward in any way without risking the disclosure of national secrets. “The very subject matter of this lawsuit is a state secret,” it said. In fact, the Department contended, the Court cannot even settle a dispute over the “standing” of the challengers to bring their case without jeopardizing secrets. “The resolution of these issues must be left to the political branches of government,” it asserted.

So, the Department asked Judge Taylor, along with its dismissal motion, to put the summary judgment question on hold until after she had ruled on the claimed privilege and the dismissal demand. Resolution of those issues, it argued, “should precede any attempt to decide the merits.” The summary judgment motion, it added, “puts at issue the very question of whether, as a result of the state secrets assertion, plaintiffs can establish their standing and whether their claims can be decided on the merits….Courts often recognize that preliminary issues should be decided before the merits are addressed.”

In an order that is available (to PACER subscribers) on the docket of the case (as docket entry 44), the judge denied the motion for a stay, said she would go ahead with a hearing on the summary judgment motion on June 12 as she had previously planned, and suggested that the Justice Department — if it opted to attend the hearing — could argue against that motion even without filing a formal response to it. The judge gave no explanation for these actions, although her order did imply some discontent with the government’s failure, after two postponements, to respond to the summary judgment issue. It is the denial of the stay that the Department presumably could attempt to attack on appeal.

Her order went on to require the challengers to respond to the dismissal motion and the privilege claim by June 20, gave the Department a week beyond that to file a reply, and scheduled those issues for a hearing July 10.

(NOTE: Washington attorney [and former appellate law clerk] Adam White has just published an article discussing the “state secrets” privilege. It can be found here. A different perspective on the privilege, from a Center for Constitutional Rights attorney, can be found here.