The Volokh Conspiracy
[Orin Kerr, July 20, 2006 at 7:56pm] Trackbacks
Court Rules that NSA Lawsuit Can Go Forward, Also Suggests NSA Program Violates Fourth Amendment:
I have a new post up on Judge Vaughn Walker's opinion today over at my solo blog, OrinKerr.com.
Charles Chapman (mail) (www):
The opinion also has an interesting section on the Fourth Amendment claims in the complaint. It’s really just dicta, as Walker had already rejected the theory which would have made the issue relevant. But AT&T had argued that it was immune from suit under the qualified immunity doctrine because the Fourth Amendment issues in the case were not “clearly established.” After ruling that AT&T was not entitled to qualified immunity in any event, Judge Walker added a “note” rejecting the claim on the merits of the Fourth Amendment issue.
I'm not sure whether this is dicta, or an alternative holding and grounds for decision. The wording, "The court also notes," is perhaps unfortunate in that it has an almost dismissive or off-hand conotation. However, if and when this goes up on appeal it appears the "dicta" would be properly and necessarily before the Court of Appeal, and thus not "dicta" at all. That is, the Court of Appeal could affirm the Order on the grounds quoted above. Perhaps more importantly, the Court of Appeal could not properly reverse and remand the Order without addressing said grounds.
7.20.2006 9:39pm
The Original TS (mail):
Oh, my. First Hamdan, now this. Since I doubt very seriously that there is any way the Ninth Circuit will dismiss this case on the state secrets theory, this is going to be a blood bath. By the time you can see the cracks in the dam, the whole thing is about ready to go.

Bush blew it. Four years ago or so, he could have gotten any legislation he wanted. Now the entire anti-terror edifice he built is going to implode because of his domestic unilateralism. It's like watching a Greek tragedy.
7.20.2006 10:28pm
Medis:
I suspect Judge Taylor will find this quite interesting.
7.21.2006 12:09am
Just an Observer:
Medis,

I am sure Judge Taylor read this decision with interest, and many wonder how soon she will act on the motion for summary judgment that she now has under advisement in Detroit.

Unless Taylor rules in the next few days, I think the next tactical round will be in next week's hearing in Chicago on the government's move to take away all these cases and consolidate them in the D.C. Circuit.
7.21.2006 12:24pm
John Herbison (mail):
Where a defendant seeks to dismiss at the pleading stage based upon qualified immunity, the threshold question is whether the plaintiff has alleged a violation of federal rights at all. See, e.g., Saucier v. Zatz, 533 U.S. 193, 201 (2001) ("A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?"). Judge Walker's discussion of the plaintiffs' Fourth Amendment claims, as pleaded, therefore cannot be dictum.

Richard Nixon was undone by, among other things, the persistence of District Judge John Sirica. Will Judge Walker play a similar role as to the Cheerleader-in-chief?
7.21.2006 7:45pm
M Quinn (mail):
The analysis is flawed. Note from Page 29, starting line 17:
"Given that the “terrorist surveillance program” tracks “calls into the United States or out of the United States,” 5/11/06 Statement, it is inconceivable that this program could exist without the acquiescence and cooperation of some telecommunications provider."

The author can't conceive of a technical capability to achieve a covert wiretap! This would seem to confirm the narrow mind of the author (and reviewers) who have no standing in the area of telecomunications technology and therefore could not conceive of any penetration of the telecomunications architecture to achieve the goal of this wiretap. Incredible that we suffer the specious declarations from the bench on matters of which they clearly have no knowledge.

Then onto Page 31, starting line 12:
"In sum, the government has disclosed the general contours of the “terrorist surveillance program,” which requires the assistance of a telecommunications provider, and AT&T claims that it lawfully and dutifully assists the government in classified matters when asked."

The result of the logic is shown to be false/undefined by the above statement being without merit, as there may be no requirement for the assestance of a telecommunications provider.

This is yet another fine example of poor legal analysis, probably due to the near total lack of deep technical foundation of the court, not only in the specific area of this example, but across the breadth of technologies that might provide a breakthrough to achieve the desired national capabilities under review.
7.22.2006 2:32am
fsdafi (mail):

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7.22.2006 4:04am

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