Update on NSA Litigation
I don't have any time to write tonight, but for those of you interested in the ongoing litigation over the legality of the NSA program, Shayana Kadidal, a staff attorney at the Center for Constitutional Rights (CCR), has an interesting post over at the Huffington Post.
CCR, like the ACLU, filed a suit in federal court almost eight months ago challenging the legality of the NSA warrantless surveillance program. Just last week, Judge Gerard Lynch of the Southern District of New York held oral arguments in the case. In his post, Kadidal provides a first hand account of how he thought the arguments went, and he seems to be cautiously optimistic. He writes:
I can sympathize. Lynch was my criminal law professor at Columbia, and I still remember being on the receiving end of his relentless questioning. As intimidating as he was, though, Lynch was probably the most intelligent professor I had in all my time at law school. Rumor has it he graduated from Columbia with an obscenely high GPA (best in his class). I believe it.
I have little doubt that Lynch can see right through the Justice Department's legal arguments, at least as to the legality of the program. I also find it doubtful that Lynch will duck the substantive issues by deciding in favor of the government on state secrets or standing grounds. If he was going to do that, I suspect he would have done so already. He told the litigants up front that he had been holding off arguments in the case because he wanted to see what effect, if any, new legislation might have on the issues before him.
That leads me to suspect that Lynch believes the program to be illegal, but not necessarily unconstitutional. If he thought it was clearly unconstitutional (as Judge Taylor did), it wouldn't matter what Congress did. The question then is whether Lynch will issue an opinion in the near term, or wait a little longer to see what Congress comes up with. My prediction is that he'll wait to see if Congress passes anything before its next recess. If nothing is passed, though, I'd bet he issues an opinion in favor of CCR.
Unfortunately, I think the odds are good that Congress will pass some sort of legislation, and that legislation will likely legalize the NSA program and render CCR's non-constitutional arguments moot. It too bad, I would have liked to have read that opinion.
CCR, like the ACLU, filed a suit in federal court almost eight months ago challenging the legality of the NSA warrantless surveillance program. Just last week, Judge Gerard Lynch of the Southern District of New York held oral arguments in the case. In his post, Kadidal provides a first hand account of how he thought the arguments went, and he seems to be cautiously optimistic. He writes:
The argument started off with Judge Lynch--a Columbia law professor, and a pretty brilliant guy by all accounts--asking questions from the start, instead of the usual statements from counsel, and ended two hours and forty minutes later. The judge said at the outset that he had held onto the case for months because he thought Congress might clarify or transform the issues by passing new legislation. After eight months, the judge was very prepared. He peppered us with detailed questions, some about legal abstractions (might FISA allow warrantless surveillance under some circumstances?) and some about wild hypotheticals (if the government was lying when it admitted there was such a program, do you have any legal claim remaining?) in the best law school tradition.
I can sympathize. Lynch was my criminal law professor at Columbia, and I still remember being on the receiving end of his relentless questioning. As intimidating as he was, though, Lynch was probably the most intelligent professor I had in all my time at law school. Rumor has it he graduated from Columbia with an obscenely high GPA (best in his class). I believe it.
I have little doubt that Lynch can see right through the Justice Department's legal arguments, at least as to the legality of the program. I also find it doubtful that Lynch will duck the substantive issues by deciding in favor of the government on state secrets or standing grounds. If he was going to do that, I suspect he would have done so already. He told the litigants up front that he had been holding off arguments in the case because he wanted to see what effect, if any, new legislation might have on the issues before him.
That leads me to suspect that Lynch believes the program to be illegal, but not necessarily unconstitutional. If he thought it was clearly unconstitutional (as Judge Taylor did), it wouldn't matter what Congress did. The question then is whether Lynch will issue an opinion in the near term, or wait a little longer to see what Congress comes up with. My prediction is that he'll wait to see if Congress passes anything before its next recess. If nothing is passed, though, I'd bet he issues an opinion in favor of CCR.
Unfortunately, I think the odds are good that Congress will pass some sort of legislation, and that legislation will likely legalize the NSA program and render CCR's non-constitutional arguments moot. It too bad, I would have liked to have read that opinion.
posted by A.L. at 12:12 AM
2 Comments:
If the Judge would find it constitutional, do you want him to issue a ruling to that effect? Wouldn't you rather he dodged that bullet?
If the law remains as it currently is, Lynch won't have to reach the constitutional issues. He can just declare the program to be in violation of FISA. If the law changes, he'll have to address the 4th amendment issue (assuming he doesn't dismiss on standing or state secrets grounds). I'd prefer that the law remain the same and he declare the program to be in violation of FISA.
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