Many heralded the district court's ruling which struck down on statutory and constitutional grounds the president's claim that warrantless searches that violate FISA are legitimate. The executive formulated some secret solution with the FISA Court which they claim made the whole matter moot, though they really didn't have to do it, since the ruling was wrong anyway. The court of appeals (2-1) rejected the plaintiff's claims, holding there was no standing to sue. Bogus.
Balkanization has a good summary [see also] and notes that non-legal sorts would wonder at the justice of not hearing the case when it seems perfectly reasonable to do so.* Such people would be right, especially since the fact standing jurisprudence is a mess also means that if they really wanted to take the case, they could. The dissent made this clear. Appeals to the political process, especially when the rights of lawyers are at stake, in this context is pure refusal to do their jobs. To the job it isn't "political" in the first place.
Standing requires adequate claims of harm. As noted by the dissent:
The attorney-plaintiffs respond that they have suffered concrete, particularized injuries as a result of the TSP. Specifically, they contend that the TSP puts them in the position of abrogating their duties under applicable professional-responsibility rules if they communicate with clients and contacts via telephone or email. The TSP, in short, allegedly prevents them from doing their jobs.
Balkie suggests the dissent was on good ground focusing on the FISA statutory claim when dealing with the merits, but it seems to me that it's interrelated. The statute is in place to guard against executive overreaching that threatens constitutional rights, including of privacy and so forth (recent release of CIA records notes targeting journalism, among the plaintiffs here). The attorneys' claim addresses a clear Fifth and Sixth Amendment concern -- due process and the right to an attorney. A governmental threat to one's employment in this fashion raises clear "property" interests as well under the Due Process Clause.
[As to the separation of powers issue, the dissent noted: "Congress has thus unequivocally declared that FISA and Title III are the exclusive means by which electronic surveillance is permitted." They had the power to do this, just like they have the power to regulate habeas of alleged enemy detainees or set forth rules of treatment. Such clear statutory rules trump alleged inherent executive power. See also, Hamdan.]
So, I think the district judge was on sound ground taking a broad approach, but as the dissent notes, it is also good policy to rule narrowly if possible. The second link btw suggests one of the judges made a backhanded attempt to comment on the merits (dismissively) while claiming only to be concerned with standing. Meanwhile, the controlling more narrow opinion of the two focused on state secrets. But, as the dissent notes, the government didn't challenge the statement of facts up front when summary judgment was desired. And, public facts make clear there is another there to bring the claim and win anyway. As with the rendition lawsuit, this is an example of dodging a question by falsely insisting one had no choice. Not so.
It is true that the dissent also doesn't want to interpret the state secrets doctrine as broadly as some do. There are some comments that lean the way of noting that if the government wants a strong state secrets doctrine, it has to make some compromises, including defaulting in some lawsuits. It also counsels against strict interpretation of the rules when the net result is serious harm when constitutional standing rules do not compel them. Thus:
My colleagues believe that the attorney-plaintiffs must establish that they were actually subject to surveillance under the TSP, whereas I conclude that a demonstration of a reasonable, well-founded fear that has resulted in actual and particularized injury suffices.
The alternative is a hide the ball technique in which even reasonable threats are ignored since there is some alleged plausible deniability, which again, is dubious in this case. I'd add the fact that constitutional interests (in addition to separation of power concerns) such as privacy is at stake underlines the problem.
This avoidance is in the spirit of Alito/Roberts jurisprudence. Since I don't think courts doing their jobs is unjust "judicial activism," and even conservative leaning judges often do it well when given the chance, I too dissent from this sentiment.
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* One person at the blog argued that we can look at the school race case like a "lawyer" and consider Kennedy's opinion rather narrow. As I noted in comments, this is a dubious enterprise since the clear message of the opinion -- no matter how one can twist it for those who are willing accomplices -- is not so narrow. A "lawyer" would also look at the probable intent of the opinion, unless you are some rabid textualist like Scalia ... which Kennedy is not.
BTW, though the blog never would think of noting it, a moot court of Dred Scott will be on America and the Courts this weekend with Breyer taking part. The case is an interest of at least one member of the blog in particular, but the blog doesn't even note when its members -- at least two so far by my count -- are due up on C-SPAN. Other blogs are better at self-promotion.