As most of you are no doubt aware, Judge Anna Diggs Taylor of the Federal District Court in Detroit ruled last week that Our Leader’s favorite “I can spy on anyone I want to without a warrant” program is, as many have been saying for a long time now, patently illegal.

Yes, I know, that opinions differ as to the soundness of Judge Taylor’s decision. She’s either a brave and principled jurist who finally held Bush accountable for his illegal spying program (the position of most on the left, ably expressed by Professor Stone here and Professor Tribe here) or she is a stupid, ignorant and dangerous black woman who should never have been appointed to the Federal bench by that bleeding heart idiot President Jimmy Carter (the default position of the right). We could argue for days over how well her opinion was written and her intellectual bona fides (something Mr. Heh indeedy would prefer to pontificate about endlessly), and whether or not she truly understands the threat posed by international terrorism to our very existence (i.e., the issue President Bush would love for us to ponder at length), but, as usual, Glenn Greenwald has hit on what is, by far, the most significant aspect of her decision granting summary judgment against the Federal Government:

…[A] principal reason why Judge Taylor was somewhat conclusory in her analysis of some issues, and the reason she repeatedly said that certain propositions were “undisputed,” is because the Bush administration either failed or chose not to dispute them. Specifically, the Justice Department was so intent on telling the Judge that she had no right to even rule on these issues (because the NSA program is a “state secret,” the legality of which the court cannot adjudicate without damaging national security and/or because the plaintiffs lack “standing”), that it basically chose not to address the merits of the plaintiffs’ case at all.

…[T]he Bush administration’s refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU’s factual claims as undisputed for purposes of deciding the motion.

For everyone who is still confused regarding what I and Glenn Greenwald think is so goldurned significant about Judge Taylor’s opinion holding that the NSA spy program was illegal, I’ll do my level best to explain it in layperson’s terms for you.

Just follow me below the fold …
It’s really not as complicated as it seems. In the case before Judge Taylor, the ACLU was asking the court to determine that, as a matter of law, the warrantless spying program was illegal. This is what is known as a Summary Judgment motion, i.e., a motion which asks the court to decide the case in your favor because there are no facts in dispute, and based on those facts the existing law says that your side in the lawsuit should win.

What the ACLU presented was a brief containing affidavits about what we know to be true in the case, accompanied by its legal arguments attempting to demonstrate to Judge Taylor that based on those facts (e.g., FISA court disregarded, no warrants obtained, lack of probable cause for the wiretaps) she had no option but to hold that the NSA’s warrantless surveillance program is illegal. Once the ACLU filed its motion for summary judgment, it was then the responsibility of the Department of Justice (DOJ), representing the federal government, to respond with its own affidavits and legal arguments as to why judgment at this point was not appropriate.

There are generally two ways to overcome a summary judgment motion. The most common way is to show (by affidavit or other evidence acceptable to the court) that relevant facts your adversary is claiming are undisputed, are, instead, in dispute. A good example of this would be in your standard automobile accident case, where the injured plaintiff (i.e., the party who filed the lawsuit) claims that its undisputed the defendant’s car caused his injuries. Should the defendant than file sworn affidavits from doctors and others claiming that, no, the plaintiff had been previously injured when he fell in his own bathtub at home before the car accident ever occurred, the judge would be forced to deny the motion for summary judgment. Why? Because there is now a relevant fact in dispute: what caused the plaintiff’s injury, the defendant’s car or the slip and fall in the bathtub? Factual disputes under our legal system require a full blown trial before a judge or jury, and cannot be determined by the judge on a summary judgment motion.

The other way to overcome a summary judgment motion is to argue that regardless of the facts, the other side has either cited the wrong laws, or incorrectly applied the relevant law to the facts of the case. That is, one simply argues that the other side’s legal arguments are incorrect. A good example of this would when one person seeks summary judgment based on a state law forbidding the marriage of two people of mixed race, and the other party to the lawsuit responds by demonstrating that there is a federal law which overrides the state law against mixed race marriages. By showing that federal law permits her to do what the state law prohibits, the motion for summary judgment based on state law would fail. Indeed, this was exactly what happened in the US Supreme Court decision Loving v. Virginia, where the Supreme Court held that federal law in the form of the Constitution’s 14th amendment overrode state laws banning mixed race marriages.

So, what strategy did the Department of Justice employ to defeat the ACLU’s motion for summary judgment? Did they raise issues of disputed facts that would preclude summary judgment as a matter of law, or did they argue that the existing law did not permit judgment in favor of the ACLU, but instead validated the legitimacy of the NSA spying program? Surprisingly, they took neither approach in their response to the ACLU’s motion. I’ll let Glenn Greenwald explain what their legal strategy entailed:

…[T]he DoJ twice tried to convince Judge Taylor not to rule on the substance of the ACLU’s claim, but instead to rule first on the DoJ’s “state secrets” argument. Twice, the court refused this request, ordering the DoJ to address the merits of the case (this Comment to Kerr’s post, documents the case’s procedural history). But the DoJ essentially refused to do so, and devoted almost all of its brief (.pdf) to arguing why the court lacked the power to adjudicate these issues, and almost none of its brief to arguing about the issues themselves. As Marty Lederman put it once he read the DoJ’s Brief: it “did not quite advance or support in any detail that argument — or any other merits argument, for that matter.”

As this excellent Comment to Kerr’s post reflects, the Bush administration’s refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU’s factual claims as undisputed for purposes of deciding the motion.

Let me put that in plain English for you.

The DOJ said to the judge: “You can’t decide this summary judgment motion because the NSA program is so super-secret and important that we can’t let you decide whether it violates any laws or not.”

The Judge replied: “Bullshit. I’m not going to disregard the ACLU’s motion just because you claim it is so super secret important. Come back with a proper response as to why I shouldn’t rule in favor of the ACLU and find the NSA spy program illegal.”

So the DOJ came back with its response to the ACLU’s summary judgment motion which said (in effect): “Dear stupid Judge, we aren’t going to tell you why the ACLU is wrong about its various claims that the NSA spy program is illegal and violates federal law and the US Constitution because you don’t have the right to decide if its illegal or not, because its so super duper secret. So there!”

And then the Judge replied to the DOJ: Ok smarty pants. In that case, you lose, the ACLU wins and I am enjoining you, your fearless leader (who thinks he’s a King or a Dictator or some other kind of blasphomous deity) and anyone else in the Federal Government from continuing to spy on Americans under this crappy warrantless surveillance program. How do you like them apples?”

That really is the gist of it. Basically, the Department of Justice lawyers assigned to this case knew they didn’t have a legal leg to stand on regarding the legality of what Bush and the NSA had done when the “decider” chose to disobey the express provisions of the FISA law. Bush’s decision to wiretap and peruse the electronic communications of millions of Americans without first going to the FISA court and obtaining a warrant, as required by law, was “slam dunk” illegal on his part. The DOJ knew it, the ACLU knew it, and any credible legal scholar knew it.

No provision in the AUMF, the Congressional resolution authorizing Bush to use force against those responsible for the 9/11 attacks, gave Bush this power. Nor does any provision in Article II of the Constitution specifically provide that a President, acting under his authority as Commander in Chief of the Army and Navy, can simply disregard the laws passed by Congress and/or the Constitutional protections provided to us in the Bill of Rights. Indeed, the only time this issue came before the Supreme Court in the Youngstown case (when Harry Truman seized the Steel Mills and tried to force striking steelworkers to go back to work during the Korean War) the Court, by a 6-3 majority held that the President had no inherent Article II power to simply disregard the laws established by Congress.

So the DOJ attorneys did what any good lawyer stuck in such a situation does: stall, and hope that waving your magical legal obscuration wand while reciting the words “state secrets” over and over would be enough to frighten the Judge from ever reaching the merits of the case against Bush and the NSA. Instead, they ran into a buzz saw of determination and courage, a woman who refused to accept that President Bush could continue to illegally spy on American citizens just because he wanted to. Too bad for them, and good for the rest of us who love our country because we value our civil liberties which the Constitution and the rule of law protect.

You see, the significant thing about this case is not that the ACLU won. That was a foregone conclusion once Judge Taylor decided she would not accept the “State Secrets Doctrine” as an excuse not to hear the case. The significant point is that Bush’s own, no doubt hand picked, Department of Justice lawyers, given every opportunity to attempt to defend the legality of Bush’s actions, refused to do so. Even they knew it was wrong for Bush to spy on us without first getting a warrant. Even they.





































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