Wednesday, August 23, 2006

Intellectual Gymnastics


David J. Kirschner[i]

Last week, Anna Diggs Taylor, a United States District Judge for the Eastern District of Michigan, issued a forty-three page opinion in the case of the American Civil Liberties Union (ACLU), the Council on American Islamic Relations (CAIR), the National Association of Criminal Defense Lawyers, Christopher Hitchens and others against the National Security Agency (NSA) and the Central Security Service (CSS), permanently enjoining the NSA from “directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter “TSP”) in any way, including but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III.”[ii] The government immediately sought, and obtained, a “stay” pending an appeal of her decision to the Sixth Circuit Appellate Court which effectively permits the NSA to continue the TSP, at least for the time being.

At the outset, it should be noted that as I and many others have pointed out, the legality of TSP is far from clear. In fact, it may very well be that the program is indeed illegal. That, of course, will inevitably be decided the Supreme Court. However, what struck me as particularly bizarre about Taylor’s opinion is that she summarily concluded the TSP violates the Constitution and, in so doing, disregarded applicable precedent. Regardless of what the Supreme Court may eventually decide about the program’s legality relative to FISA and Title III, it is not likely to determine it unconstitutional. And it most assuredly will not permit her contorted reasoning.

Article III of the Constitution only permits courts to hear actual cases or controversies, not hypothetical or imaginary ones. So before a court entertains a claim seeking judicial relief, a party must demonstrate that direct and discernible harm has been sustained. Such harm, or injury, must constitute an invasion of a legally protected interest which is concrete, particularized and imminent, not conjectural, hypothetical or speculative. Otherwise, judges would be regularly called on to issue advisory opinions on what the law may be in a case that may never occur.

In support of her decision, Judge Taylor strangely relied on Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,[iii] a case which has nothing to do with electronic surveillance. In Friends of the Earth, the court granted standing to environmental groups who sued a polluter under the Clean Water Act because environmental damage allegedly cause by the defendant had deterred members of the plaintiff organization from using and enjoying certain lands and rivers. The court held that plaintiffs established a sufficient concrete injury based on their conditional statements indicating they would use the nearby river for recreation if the defendant was not discharging pollutants into it. Aside from having nothing to do with electronic surveillance, reliance on Friends of the Earth is entirely inappropriate and inapplicable. There, the plaintiffs themselves were directly affected by being deterred from using the river. Not so here. As even Judge Taylor noted, “[t]he plaintiffs in this case are not claiming simply that the defendant’s surveillance has ‘chilled’ them from making international calls to sources and clients. Rather, they claim that defendant’s surveillance has chilled their sources, clients and potential witnesses from communicating with them.”[iv]

Interestingly, none of the Plaintiffs claimed to have been subjected to the TSP or have any of their telephone conversations intercepted. All the Plaintiffs were able to demonstrate is that the “TSP has caused clients, witnesses and sources to discontinue their communication with plaintiffs out of fear that their communications will be intercepted.”[v] Predictably, and accurately, the Defendants argued that the program merely “has a chilling effect based on purely speculative fears that the TSP subjects Plaintiffs to surveillance.”[vi] Their argument was based on the sound authority of Laird v. Tatum,[vii] in which the Supreme Court stated, “Jurisdiction of a federal court may [not] be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.”[viii] In Laird, the plaintiffs alleged merely that they could conceivably have become subject to the army’s domestic surveillance program, not that they actually suffered as a consequence of it. Logically then, it would appear that since the TSP is indeed an investigative and data-gathering program to thwart terrorism and terrorist activities, Laird’s precedent is directly on point.

Taylor, however, elected not to follow Laird. Instead, Taylor disregarded the Plaintiffs’ admission that none of their telephone conversations or email communications had been intercepted and instead decided that the program indeed damaged them. The basis for her decision was not that they “could conceivably” have become subject to surveillance, but rather that they in fact suffered a “concrete, actual inability to communicate with witnesses, sources, clients, and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients.”[ix] Simply put, Taylor accepted plaintiffs’ assertion that “the TSP has interfered with their ability to . . . talk with sources, locate witnesses, conduct scholarship, engage in advocacy, and communicate with persons who are outside of the United States, including in the Middle East and Asia.”[x] Are we to believe that Constitution guarantees journalists, reporters and attorneys the right to “communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations?”[xi] Isn’t this precisely the type of communication that should be overheard? Apparently, Taylor doesn’t think so. Why? Because plaintiffs “must discuss confidential information over the phone and email with their international clients”[xii] or else incur “great expense” which will “significantly cripple” them. And this is a problem because?

Following this logic, person A, who is neither a citizen nor a resident and is afraid to talk on the telephone to person B, a citizen and a resident, because person A’s status as a terrorist or terrorist associate subjects their conversation to being overheard violates person B’s right to free speech? And her rationale that “[t]he President indeed has publicly acknowledged that the types of calls plaintiffs are making are the types of conversations that would be subject to the TSP,”[xiii] combined with the “continuation” of the TSP, they could become subject to interception damages the plaintiff’s? As a well respected and highly esteemed justice before whom I was honored to appear asked a lawyer who moved for a mistrial because a reporter was inside the courtroom, “Are you serious?” Sadly, it appears she is. It’s a good thing this isn’t the law, otherwise I would have a problem listening to conversations between organized crime “wiseguys” operating their criminal enterprise. Unless I missed something in law school, I am unaware of any constitutional or otherwise fundamental right that guarantees persons located in other countries First Amendment or any other constitutional rights. I am also unaware of any precedent establishing “vicarious protection” to one person because of another person’s protected rights.

In support of her “reasoning,” Taylor relies on Zweibon v. Mitchell.[xiv] Zweibon held that it was illegal to wiretap an organization’s office telephone since it would inevitable provide the membership roster of that organization, “thereby causing members to leave that organization, and thereby chilling the organization’s First Amendment rights.”[xv] But in Zweibon, all the parties resided in the United States, the organization itself had its First Amendment rights directly violated, and there was no issue involving national security. Is there an analogy here? It is more than well-established that governmental action to regulate, restrict or impinge speech may be justified only upon a showing the existence of a compelling governmental interest. Well, I can think of at least one. But I cannot fathom any government interest protecting the speech of suspected terrorist or terrorist sympathizers who are neither citizens nor residents of the United States.

The opinion, provides at best a cursory review of the history of the case law involving electronic surveillance, Title III and FISA, but conspicuously omits any discussion or reference to the Patriot Act. And although Taylor “analyzes” the TSP, she does so exclusively in terms of domestic criminal matters which are governed by the Fourth Amendment Search and Seizure provision and its dearth of precedent. Nowhere does she even attempt to draw the inevitable distinction between conducting electronic surveillance to obtain evidence for use in criminal prosecution and gathering intelligence in the interest of national security and thwarting acts of terrorism. As I have discussed in previous writings, the crux of the TSP issue rests squarely on this distinction. Perhaps both her and her law clerk missed it. However, her sweeping assertion that, “the President of the United States, a creature of the same Constitution which gave us these amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well,”[xvi] constrains me to think she just chose to ignore it.

Undoubtedly, anticipating a challenge to her “analysis” granting plaintiffs standing, Taylor wrote, “Although this court is persuaded that plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions (emphasis added) drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. . . . Because of the very secrecy of the activity involved here challenged, Plaintiff’s each must be and are given standing to challenge it. In other words, I’m conferring standing because I want to, precedent be damned. That’s sure to help unmuck the already mucky the waters of stare decisis.

In concluding her decision, Taylor transparently clarifies the entirety of her cryptic opinion by stating, “The irreparable injury necessary to warrant injunctive relief is clear as the First and Fourth Amendments rights of plaintiffs are violated by the TSP. The irreparable injury conversely sustained by the defendants under this injunction may be rectified by compliance with the Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our constitution.”[xvii] She then quotes former Chief Justice Earl Warren who said, “[I]mplicit in the term ‘national defense’ is the notion of defending those values and ideas which set this nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile.”

Isn’t that like saying implicit in the term “public interest” is the notion of defending those values and ideas which set this nation apart: the safety and security to live in freedom. It would be ironic if, in the name of “public interest,” we would sanction the extension of “those values” to persons outside the country who are committed to our death and destruction.

[i] David J. Kirschner is an Assistant District Attorney in Bronx County, New York, where he supervises covert investigations involving the use of electronic surveillance. As a senior member of the Investigations Division’s Rackets Bureau, Mr. Kirschner has successfully litigated cases relying upon evidence obtained through electronic eavesdropping and regularly prosecutes white collar crimes including racketeering, enterprise corruption, extortion, usury, gambling, fraud and public corruption. In addition, he frequently supervises the office’s arrest, intake and arraignment process. Mr. Kirschner also teaches trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, Cardozo Law School’s Intensive Trial Advocacy Program, and is an Adjunct Assistant Professor of Business Law with the City University of New York at Queens College and the Lander College for Men, an affiliate of Touro College. The views expressed herein are exclusively those of the author and do not represent or reflect the views of the Bronx County District Attorney.

[ii] Judgment and Permanent Injunction Order, p. 1-2.

[iii] 528 U.S. 167 (2000).

[iv] Memorandum Opinion, p. 20.

[v] Memorandum Opinion, p. 17-18.

[vi] Memorandum Opinion, p. 18.

[vii] 408 U.S. 1 (1972).

[viii] Id. at 3

[ix] Memorandum Opinion, p. 20.

[x] Memorandum Opinion, p. 17.

[xi] Memorandum Opinion, p. 17.

[xii] Memorandum Opinion, p. 17.

[xiii] Memorandum Opinion, p. 19.

[xiv] 516 F.2d 594 (D.C. Cir. 1975).

[xv] Id., See also, Bates v. City of Little Rock, 361 U.S. 516 (1960).

[xvi] Memorandum Opinion, p. 33.

[xvii] Memorandum Opinion, p. 43.


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