Judge Walker Busts A Move: The Legal Foundation For It
Immediately below, Marcy described Judge Vaughn Walker’s new homework assignment to the parties in the consolidated litigation in the Northern District of California (effectively all cases except al-Haramain and a few others to which "section 802 of the FISA Amendments Act of 2008" are not germane). If you have not read Marcy’s post, and wish to proceed into the legal weeds of this one, I heartily suggest you go back there first.
Okay, as I suggested in comments in Marcy’s post, Judge Walker is looking at the Attorney General option to certify a matter for dismissal pursuant to section 802 of the FISA Amendments Act, and as to said provision:
It is the hyper-equivalent of vagueness. The provisions that are supposed to provide the guidelines, provide … none.
Mary went to the same point but, as usual, with a lot more flesh on the bone in her comment:
… the drafting is bad. It doesn’t say that if x,y and z are met, the AG SHALL give a certification and with that certification, the telcoms walk. It says that the AG MAY give a certification that x,y and z existed and if the AG gives that certification, it’s an out. So it makes the certification discretionary to the AG, but then gives no standards on the exercise of the discretion. So the AG could, under the statute give the certifications to some and withhold it from others under the same factual settings.
So how is a court to know of the AG is complying with Congressional will vis a vis the certifications – if there are no standards specified for the exercise of discretion.
Precisely. So, let’s look at what Walker is legally up to here. It is my contention that he has pretty much determined that he is not down with the government’s program in the least, is going to take the bold move of declaring it unconstitutional and, from all appearances, do so on multiple grounds. The one at issue here is the unfettered and infinite nature and scope of the AG certification process under section 802.
First off Judge Walker posits this:
The parties are directed to address whether section 802 runs afoul of the principle the Supreme Court set forth in Yakus v United States, 321 US 414, 425 (1944):
[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.
But you should have some further context to understand Walker’s aim. Here is what the court actually found in in that case; from Yakus, 321 US at 426:
The standards prescribed by the present Act, with the aid of the "statement of considerations" required to be made by the Administrator, are sufficiently definite and precise to enable Congress, the courts and the public to ascertain whether the Administrator, in fixing the designated prices, has conformed to those standards. Compare Hirabayashi v. United States, supra, 320 U. S. 104. Hence, we are unable to find in them an unauthorized delegation of legislative power.
In Yakus v. United States, the Court was evaluating the authority given to an executive branch "Price Administrator", whose job it was to determine prices of commodities during World War II, and the court found there were sufficient criteria set forth by Congress for the courts to decide, and and the people to understand the basis of the decisions rationally, i.e. how the price determinations were arrived at. In short, the court in Yakus found the situation was not so vague as to be completely arbitrary and capricious.
Appears to me that Walker thinks the situation in respect to the AG certifications in the NDCA consolidated cases do not possess such requisite identifiable criteria for determining the basis thereof as Yakus would require, and is making darn sure that he has given the government a full chance to make their case. Before he holds that they haven’t.
Secondly, in his order, Walker asks that the parties, and, again, he is clearly directing this at the government, brief as follows:
The parties are further directed, in doing so, to give consideration to two principles of statutory construction: (1) a court should treat the “plain meaning of legislation [as] conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters,’” United States v Ron Pair Enterprises, Inc, 489 US 235, 242 (1989); and (2) “[t]he canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.” Clark v Martinez, 543 US 371, 385 (2005).
Of these two demands, the key looks to be the second based on Clark v. Martinez. In this regard, here is the full operative section from Clark that Vaughn Walker is basing his inquiry upon (note Clark is a Scalia opinion and is therefore written in his typical oblique style that turns simple concepts into the nearly undecipherable):
If we were, as the Government seems to believe, free to interpret statutes as becoming inoperative when they approach constitutional limits, we would be able to spare ourselves the necessity of ever finding a statute unconstitutional as applied. And the doctrine that statutes should be construed to contain substantive dispositions that do not raise constitutional difficulty would be a thing of the past; no need for such caution, since whatever the substantive dispositions are they become inoperative when constitutional limits are approached. That is not the legal world we live in. The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.
Here, Walker is anticipating an argument he reasons the government will make to try to squirm out of their vagueness hole and, again, after giving them a full opportunity to brief it, he appears ready to bite them. The Clark argument they will try is to say, in simple terms, "Gee judge, if you can’t tell what the parameters of the statute are, you can just assume they are whatever could be appropriate right up to the Constitutional extreme". I don’t think Vaughn Walker thinks that is going to fly in this case. Neither do I.
Ladies and gentlemen, Vaughn Walker is on a mission. As most of you know, I have thought that was the case for quite some time now. But jeebus, and seriously, I have rarely, if ever, seen a judge more on top of a subject, loaded for bear and out in front of a case as we see here. It is awesome and impressive. He is anticipating what the parties are going to argue and how appellate courts are going to rule in the next set of appeals, all from a pre-trial posture. He is treating this case with the respect, depth and care that it deserves because nothing short of our Constitution and Fourth Amendment thereto is at issue. There are precious few bright lights in the dark field of justice these days; irrespective of how it all plays out in the end, so far this sure looks like one of them.
so human decency and the rule of law have a slight chance of surviving in America ???
morning bmaz!
I don’t know if you’ve seen this yet but;
which is of course good news but I have lost faith in the power of subpeona when it comes to holdingthis administration to account
he can expect a call from the bush claiming executive priviledge I believe and he will simply defy subpeona
hopefully I am wrong
OT, but this will make you crazy…
In Boston on May 27th
Charlie Rose interviewing James Carville and Karl Rove
Price: $197.00
Rove might be out on bail by then.
thanks for the post. this is exactly the type of measured optimism i want to read while slurping my breakfast. good day all.
Also OT but here in Britain we also have judges pushing the envelope. The judges in the Binyam Mohamed case have agreed to re-open it. The sole purpose for doing so is that there is an arguable case that what the Foreign Secretary certified to stop them publishing all of their own judgement, and what he said in Parliament is not consistent. Next week will be fun.
Some of us are following right along with you, chetnolian. Nicely cheerful morning group we have today.
Greetings, chet. Yes, many here have been following your Judge in the Binyam Mohammed case. He all but told the journalists what to demand of him. Be proud of him, very proud!
The good news of late yesterday is that the Obama Administration has given the go ahead for a team from Britain to come to GITMO to prepare B. Mohammed for possible release and return to Britain. I hope he lives to see this ordeal through, and is someday able to know some joy in life.
Amazing how competence in one’s profession has become something to marvel at, but I will certainly take it and be ever so grateful . . . my first impression of Judge Walker’s homework assignment was that he is inclined precisely as you described. From a legal standpoint, this position is fairly basic, but from the standpoint of real politik, it really is bold. It is this sort of boldness which we need to get our country back.
No kidding. Just imagine – one of the three co-equal branches actually doing its job and protecting its turf. A concept that Congress might want to relearn.
“…one of the three co-equal branches actually doing its job and protecting its turf.”
Ah, yes. Congress, I’m looking at you. Specifically you, Sen. Leahy! Your so-called “Truth Commission” is another trick of Congress to avoid what it should be doing itself. Now, a Senate Select Committee, with full subpoena powers, that would be an example of Congress “actually doing its job and protecting its turf.”
Bob in HI
I’m thinking that Judge Walker is completely out of patience and if the Government wishes to continue stalling they will need to do it in the appeals court.
I’m thinking the Judge is going toss the governments position in at least two different ways, then stay his order to allow the government to appeal.
My hope is that his decision is written solidly enough that Holder will find no rational line of appeal. Holder has no personal irons in this fire, unlike the BushCo flacks, and may decide he’d rather not look silly to the rest of the profession.
Boxturtle (If he does appeal a solid ruling, I’ve a number of tinfoil hat theories as to why)
Having warrantless wiretapping ruled illegal? Delightful.
Having its enablers held accountable? Wonderful.
Having that happen with a judge who uses copious references to a Scalia opinion? Priceless.
Man, bmaz, Brett Favre’s re-retirement has freed up a chunk of your time for some lawyering–that’s great news!!
Seriously, great post, bmaz, thanks for doing the work to figure out where Walker is going legally.
Nice post bmaz. I think that the comment @ 23 from the thread below, by JTMinIA is something to keep in mind as well – Walker has fully and thoroughly hung this around Obama and Holder’s neck.
In essence, Walker seems to be touching on the kinds of issues that come u in a Void for Vagueness type of challenge. This allows for a challenge to the statute on a facial basis, rather than on an “as applied” basis. A complicating factor for that doctrine is that it is usually used by defendants in a criminal proceeding, going after a criminal statute.
Here, the operative section involves not the felony provisions of FISA, but rather the civil recovery provisions:
This is a strange kind of hybrid, bc the nature of the civil claim is for something that is also supposed to be a criminal felony, but Congress has carved out a niche that, if the Executive acquiesced in and initiated the felony, then the AG “may” certify the civil case for dismissal. From a quick look, Walker seems to have picked his cites pretty carefully to make sure that the criminality issue won’t be able to be the focus of the response, but it all does wrap up in a ball. If you are the civil plaintiff, what direction has Congress given as to whether or not you should have a recovery right if it is a matter of allowing recovery against some FISA violative searches, but not others, with the determinant being whether the defendants brought donuts for the AG or not? And if you are the defendant, when can you DEMAND that the AG give you your @%! certification bc you did all that was required by statute (or, well, not required by statute at the time bc you were violating the statute, but all that was required by the Presidential/AG directives at the time)
As Walker notes:
And on taking a closer look at the sections cited by Walker (but not at the whole statute, so this point may be dealt with in a different definitional setting) it isn’t just “electronic surveillance” that Congress references. No civil action may be maintained against anyone, no matter what they did, if they claim it was “providing assistance” to the “intelligence community” (I don’t know if those are defined terms in the statutes as revised, but if not, those are some very very open doors) and if the AG certifies.
That might also be an area where the lack of standards is pretty significant. Notice, to, that despite all the harping by Dems on good faith reliance, no part of the statute premises the AGs certification on a finding of good faith reliance.
It’s been so long since I’ve looked at the FISA amendments (and I may not even be remembering a final version) that I am probably wrong on this, but I kind of think what Walker is doing might possibly strike to the heart of not just the certifications for the ending civil suits, but to the discretion granted to the AG under the new, Obama et al backed, warrentless surveillance powers.
wait a minute .. now IANAL.. but i thought it was the purvue of the court to decide the legality of things ..
by placing the onus on the AG to certify the legality .. doesn’t the statute run afoul of the principle of the separation of powers doctrine ..
i don’t know the mechanics of the law in the application .. but mechanics notwithstanding .. that’s where the path of logic leads my thinking ..
so ..mi barrista-nistas.. tell me where i’ve gone astray .. por favor..
and many grasses in advance.. eh
Hey bmaz,
Long time, no comment, but I’m still around. Great work keeping on top of Walker, J. here. I think you’re right. We may see the first instance of something being knocked down under the seemingly moribund non-delegation principle for a very very long time.
Sebastian! Crikey, every now and then i flash back to old discussions, or for some reason or another am caused to go through old threads looking for something and remember the old discussions. Very good to see you again and still with us. Don’t be a stranger, else we will track you down!
And, yeah, Walker sure has a breath of fresh air about him doesn’t he? He has been so meticulous and dead on procedurally that it makes me all Chris Matthews tingly like. Okay, bad analogy, but you know….
bmaz, you had so elevated our discourse this morning with this post.
And then you had to go mention Chris Matthews.
It really was a piss poor analogy…..
Hey, good to be back. Had a change of jobs, was in and out of the country a coupel of times, and had to recover from a bad motorbike accident. I’ll definitely be dipping into the lake more often now.
Confucius say four wheels more stable than two.
14 – He’s not being asked to certify as to legality Instead, Congress is asking that he certify to other things (like the existence of Presidential directives). Next the question would be, to what extent does that certification affect pending lawsuits. For the Congressionally created remedy of civil damages under FISA, Congress probably can have that kind of claim be forced to be withdrawn or dismissed, if it does so under a method that provides due process (the issue that Walker is getting at) bc there is no Constitutional right to have a monetary claim for violation of FISA.
OTOH, to the extent that there are other 4th amendment Bivens type claims, I don’t know how Congress can direct that the courts dismiss those claims on an AG certification, even if it had all kinds of due process protections, bc that is what the court is for – to determine constitutional issues. The problem is that, with all the secrecy, the easier claim for damages is the FISA claim – it gives you damages without a showing of injury – with a secret program, the showing of injury is a a steep road.
Here’s the language in question:
I had been remembering an earlier version where the AG just had to certify it was legal.
thank you mary for illuminating the object of my ignorance in a painless and tactful manner …
I appreciate the two posts on the teleology of VW walker. Glossing, I located a Tulane Law Rev article by the current leader of the judicial panel on multidistrict litigation describing that Panel’s origins in the primordial mire. As for the Scalia asymptotic exclusionary principle, perhaps that will make its way to the coffee klatch backlogged material for perusal after the tech journals this morning. Looks like cobbled congressional neoFisa has too much penumbral Gonzales intertwined, as hastily written, though I sense congress is headed toward creation of yet another secret chamber with the stateSecrets rewrites RealSoon Now.
17 – yes, under the current version, there is no certification by the AG about the legality of the program, just that the AG “or the head of an element of the intelligence community”gave a written request/directive that the activity was authorized by the President and “determined to be lawful” So the way it reads, only the original request/directive has to have stated (or at least, have an AG who is willing to say that it stated, whatever it did or did not actually state) that the activity had been determined to be lawful. In the case of the post – hospital showdown authorization, which was signed off on by intel guys weren’t they? Hayden? – basically this allows for the NSA head (who couldn’t remember the warrant clause or probable cause requirements of the 4th) to tell the telecoms that the activity had been determined to be lawful by … ? the ag who isn’t signing?? the MBA president who couldn’t get into law school?
Whatever.
Some of this comes from the old FISA, which allowed for an AG certification process of communications that were solely foreign power to foreign power with no US persons and yada yada. The difference there being that such a setting doesn’t raise an opportunity for an American citizen on American soil to come to court and ask how due process is met by arbitrary certifications by an AG of whichever American citizens (vs. foreign powers) he wanted to wiretap or whichever telecoms or persons he wanted to let off the liability hook.
The actually authorization itself–which Comey refused to sign–was signed by Gonzales. I imagine what the telecoms got was signed by Hayden or whomever.
Sorry, just catching up. In the previous thread, I post this reply to Mary:
In bmaz post, and further Mary/Marcy exchanges, we still seem to be at the same point. The Court is implicitly reading into the statutory language “if the Attorney General certifies” the option of certifying or not, irrespective of whether facts X, Y, and Z happened. I still don’t understand why a reviewing court would read that additional language into the statute, when there is a plausible interpretation that (1) doesn’t require it and (2) preserves constitutionality.
That statute is awful, for lots of reasons (that’s why we opposed it), but the argument that it provides unfettered discretion without criteria doesn’t seem persuasive. What am I missing?
There is no basis for determining when the AG will or will not make such a certification. It is always in his arbitrary, and therefore capricious, discretion. Two telco companies, A and B, both similarly situated – even identically situated, the AG may, in an unfettered fashion, certify one and not the other. You are mistaking criteria for criteria as to how and when the decision will be made; without the latter, it is merely a crapshoot at the sole unmitigated discretion of the AG – he has at that point irretrievably usurped the power and province of the Congress’s stated implied, if not stated, intent, as welll as that of the court in their ability to judicially evaluate the propriety of the decision. read the cases cite, they really are quite instructive as to what Vaughn Walker is getting at here.
I understand the argument. The question is whether our Supremes would buy it, given alternative arguments that support their likely propensity to uphold this.
If the argument is, “well, he could have acted/certified promptly in one case, but delayed certification indefinitely in another; therefore it’s arbitary, the response would be “since the AG has already acted promptly here, we have no cause to consider whether, in some other hypothetical case, the AG might have delayed, thus, creating a discretion to act or not (through delay) that does not otherwise appear in the statutory wording. Since we do not face that set of facts, we need not consider it.”
Does the briefing of then House Majority Leader Tom Delay on the day after Card and Gonzales visited Ashcroft in the hospital have anything to do with Gonzales trying to (pretending to) “ascertain whether the will of Congress has been obeyed”?
Well, the cases Walker found and is positing on seem to lend a good deal of credence to the position that it is arbitrary and capricious. And, quite frankly, I don’t think you have to wait for an aggrieved separate communication provider to make the argument that it is arbitrary and capricious; I think it is quite clear that the plaintiff can so assert that here as they have done and as Walker is leading them to do with more specificity. Here is the thing, if Walker follows through with the direction perceived in the post, I am pretty sure the 9th Circuit will not disturb it. So your abject fear really is centered on the Supremes. I also can picture a split decision, but I see it going at least 5-4 to the Plaintiffs and maybe 6-3 because the Clark v. Martinez decision that is a crucial part of the underpinning is authored by Nino. I don’t think he will overrule himself. And, yes, I think the facts fit within the same constructs.
hey .. kudos to y’all .. bmaz .. mary .. marcy .. most educational and enlightening discussion and calrification for us laymen wannabes … i thank you for the time and effort you’ve taken to explicate the penumbras … and the umbras as well ..
sincerely so ..
21 – are you sure? I’m not sure what you mean by there being an actual autorization v what was given to the telecoms, but I was thinking that at about the same time as the revelations that the 45 day re-ups were actually being issued as military orders, there was also a revelation that they had actually used someone with one of the intel agencies (I’m thinking Hayden) to sign off in lieu of Aschcroft or Comey, and that’s why the legislation was drafted to allow the sign off by an AG or dep AG, but also by an intel agency head – iow, that reference is in there bc it needed to be to cover the interim orders.
I’m not sure why I thought that though, it just seems stuck in my mind.
25 – It’s not really an argument that Congress meant that the AG could choose to certify or choose not to certify, irrespective of whether X, Y, and Z actually happened. What the statute says is that the cases should be dismissed if the AG certifies to the court certain things – for the normal issues, those things are the existence of things like court orders issued by the FISA court
But then, as EW quotes in 17, there is another certification for the warrantless surveillance program. It is not “that the AG could choose to cerifty or choose not to certify, irrespective of whether X, Y, and Z actually happened” (although the practical part of the matter is that the court has no great oversight to see if the AG is fibbing or telling the truth when the certification that x, y and z exist is proffered)
What the AG is being asked to certify is the existence of x y and z so I don’t think anyone is going to argue that he can “certify” even if x, y and z didn’t take place. Rather, the issue is one of discretion. Bc the statute does not say that the AG SHALL certify x, y and z if they exist, but instead says that a civil case will be dismissed “if” the AG makes a certification (either as to the existence of FISA orders, or the existence of the items listed in the excerpts at comment 17), but there is no duty on the AG to make such a certification.
So, for your request for a counter argument to, I think it’s unlikely the Supremes would buy this argument. They’re more likely to say that what Congress meant was that when the issue comes up in a suit, we expect the AG to look at the facts of whether X, Y, and Z happened, and if they did — it’s a simple factual finding, not a legal analysis — to so certify. That plausible reading makes sense of the statute and preserves Constitutionality (and is thus preferred).
And since the prior AG has already made the certification, the point is moot.
I’ll take the last point first. In this case, the attack on the statute would be what is known as a “facial” attack, meaning that the statute, on its face, is invalid. If that attack is upheld by the court, then the point about the prior certification is not moot – it is not even an issue reached, bc the court would be holding that the mechanism for getting tot that certification is a statute that, on its face fails to meet constitutional standards of due process regarding certatinty and clarity.
As to the other point, you can’t predict what the Sup Ct will say, but bad drafting isn’t a new or novel issue and there are lots of cases that talk about the difference between the use of “shall” and the use of other words, such as “if” and “may” which are discretionary.
So what you have is a badly drafted statute that, literally and when given its plain meaning and ordinary textual analysis does not require the AG to give a ceritifcation, but only allows the AG great swaths of discretion in deciding whether to give a certification and “help out” a civil suit defendant — or not. There is certainly no mechanism for a civil suit defendant to demand the certifications or anyone for them to seek redress from, statutorily, if the AG won’t issue the certifications even though the defendant says they can prove x,y and z exist.
So there are a lot of statutory construction types of cases, esp in admin settings, that would deal with whether an “if” vs. a “shall” is discretionary or not based on those literal, plain meaning, and ordinary textual analysis issues and the statute isn’t in good shape there. However, there are always multiple levels of rules of construction, and the court is saying, hmmm, well, maybe even though the plain meaning on this statute is that too much discretion is granted, to the point of violating due process requirements, there are also some cases that recognize rare instances, where you don’t give a statute its ordinary meaning, if such meaning is “demonstrably at odds with the intentions of its drafters” and there is a canon in favor of avoiding consitutional issues, such that if a statute could be found to be susceptible of more than one construction; and the canon functions as a means of choosing between them (iow, you would choose the construction that does not bring constitutional issues into play).
This, then, is what the judge is getting at with his directions:
And his directions on 2, imo, may be a bit of a landmine. Bc you have constitutional avoidance in multiple aspects in this case. You do manage to avoid the constitutional due process issue of the AG being granted too much discretion by construing the statute to mean something other than what its plain language indicates, but that only serves to open another level of constitutional issues regarding First Amendment rights, separation of powers, ability to Congressional disenfranchise Bivens types of recoveries in addition to the FISA damages, etc. I don’t think that the constitutional avoidance canon gets you anywhere when you have to actually do damage to the ordinary use of language and it still only avoids one constitutional issue to open the door to a different set of constitutional issues.
And I think that, on the “intention of the drafters” issue, this particular case involved drafters who by and large had no idea what the facts were and what the AG would be seeing and as such a) it is very likely that their intention WAS to actually grant that much discretion to the AG – i.e., they likely intended to set up a system that the AG could opt in and out of at will; and b) again going to the lack of information provided to Congress prior to passing the statute, I don’t think anyone can argue that Congress had the kinds of information before when it passed the statute for it to be able to clearly state an intention.
So when you say that the Sup Ct is more likely to say that what Congress meant was that when the issue comes up in a suit, we expect the AG to look at the facts of whether X, Y, and Z happened, and if they did — it’s a simple factual finding, not a legal analysis — to so certify I would have to say that such a thing, while not impossible, would ignore a tremendous body of law as to grants of discretion and use of permissive language in statutes. Congress knows how to say “shall” and does say it and Congress has certainly been faced with this kind of issue over and over, so that it knows how to direct that an officer “shall” certify certain facts to the court if they are in existence.
Moreover with Congress itself not being briefed and not knowing (other than some members of some committees) what happened, imo it’s a tough argument to argue that Congress “meant” certain specific facts to trigger specific action (esp when the “facts” include combined fact and law determinations such as are necessary for 4A(ii) that the activities were “designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States”). I really think they were flailing and so they punted to the AG and the statute supports that – we don’t know what to do, you decide for us.
Believe it or not – that’s my short answer *g*
Whoa. Can you give the long answer now?? Agreed he left a landmine with Clark, which is the #2 you referred to above. Think he left several actually depending on how they try to squirm. But they all look to lead into a box. And it should not be undersold that this is just the instant issue; it is by no means the exclusive ground on which Walker appears to be pricking at them.
28 – I should have read this before I answered 25 above.
I think you may not be following the nature of a facial challenge as opposed to an “as applied” challenge. If a facial challenge is successful (the statute violates due process requirements on its face by granting too much discretion to the AG, whether the AG actually uses that discretion or not) then you never get to looking at what the AG did or did not do. So a court, in response to a facial challenge, would not look to what the AG has done (your, “since the AG has already acted promptly here” argument) bc the whole nature of a facial challenge is that it doesn’t matter what the AG does. It doesn’t matter if he is arbitrary and capricious or not, if the statute does not provide either plaintiff or defendant with clarity in determining when someone can demand and receive a certificaiton from the AG, and when the AG can just shrug and say “no, not gonna give it”
And also the issues isn’t one of delay or not – the statutory language on certification is “if” it is given by the AG, not “when” So the issue isn’t that it might be arbitrary to delay giving the certification in some cases, but it doesn’t matter bc the AG acted promptly here.
The issue instead is that the AG can pick and choose IF (not when, IF) he wants to give a certification and there are no standards for determining if his “if” decision is an abuse, bc there is no stautory direction.
fwiw
Your two replies are, IMO, dodging the core of what I’m saying. Let’s first agree on something you’ve said:
1. Yes, the court could determine the statute is invalid on its face, so we don’t get to the other issues.
But suppose it doesn’t. Then what’s next?
The line of argument being pressed in the post is that the plain meaning of the term “if” makes it discretionary. My argument is that in the context of that section, “if” is not discretionary. The act to certify if certain facts are true is assumed. And that act is connected to the operative “shall” in the paragraph. The “shall” is that the case shal/must be dismissed, if the AG certifies certain things, as it is assumed he will if the facts exists. So the “if” relates to wether the facts are true, not whether the AG will make the effort to determine whether they are true and so certify.
You argue further that Congress may well have meant that it wanted the AG to excercise discretion as to whether to certify, independent of whether X , Y, and Z happened. But we don’t get to Congressional intent yet, because you’re asserting, without more, that “if” must mean AG can decide whether or not to certify. If the cases all line up and say, whenever Congress says “if” it means the actor always has discretion, then end of argument. But if the cases say, “it depends on the construction of the rest of the section,” it’s a different ballgame.
When I read the statute, the most logical meaning of “if” in this section is the AG will/must/shall go through the exercise of certifying whether the conditions are met when called upon to do so. The alternative argument, which you seem to be suggesting is the plain meaning, is that the AG can decide whether or not to do anything at all. So even if the court asks the AG, “did X, Y, and Z happen, Mr. AG?,” the AG could say nothing, or say, “I don’t have to answer your question.” That seems to turn the statute into a meaningless excerise. Mine is not a legal analysis based on the cases interpreting “if,” because obvious, I haven’t read them. It’s just my laymen’s reaction to what the statute seems on its face to be saying.
The “if” = “discretion” argument basically says: Congress passed a hotly debated statute about whether to shield telecoms and clearly decided to do so, but did it in such a way that an AG could, for any reason or no reason, refuse to cooperate with the statutory scheme by choosing not to make a certification even though the facts, if fairly determined, would result in such a certification. In other words, that “plain meaning” interpretation meant Congress just wanted the AG to decide whether to cause cases to be dismissed on any reason he could think of, or for no reason at all. To borrow one of your arguments, if that is what Congress meant, they probably knew how to say that clearly, but they didn’t.
That would reduce section 802 to mean: “The AG can, at his/her sole discretion, cause any suit to be dismissed, for any or no reason.”
At which point, the our judge would say, “gosh, that sounds like arbitrary discretion, and that’s unconstutional.” And of course, he’d be right. But that is not what the statute says.
I’m sorry to be such a pest, but that argument just doesn’t sound persuasive. I’m content to leave it there, because I think we’ve beat this to death, and because IANAL (anymore), you shouldn’t have to deal with my lack of research or ignorance on the case law. But thanks much for laying out the arguments.
btw, my other arguments were a respsonse to bmaz; I don’t disagree with what you’re saying on those side issues.
OT –
http://www.latimes.com/news/na…..8432.story
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Graham is such a slime, and Kagan is, after all, a Goldsmith advocate. There is a pretty damn big difference between someone who is not on a battlefield carrying a weapon and is only “suspected of financing Al Qaeda worldwide” and a prisoner of war. It disgusts me that no one on Obama’s team will take on this issue. He really is a failure as a leader and his picks are the same. Gee, so Kagain is fine with us picking up Maher Arar AGAIN – stealing him from Canada and then locking him away bc someone like Fredo still “suspects” he might have some kind of tie to al-Qaeda?
WTF happened to evidence with these monsters? And WTF happened to the Supreme Court’s definition of battlefield in Ex Parte Milligan? If courts are open an operating, in the Phillipines and at home, then no, you don’t have a “battlefield” capture.
It can’t be that, as a Kentucky bred, Indiana raised, Methodist I am that ideologically “left” Hell, I voted for Lugar in IN and Warner (Lizzie’s Warner) in VA, but I’m ashamed of both of them now. Not as ashamed as I am of Obama and his picks, but apparently shame is in much greater supply than jobs these days.
Agreed, and I will also note that Kagan is the one that also, in addition to bringing the good Captain Jack “He of the Law of the Sea” Goldsmith to hallowed halls of Harvard Law, also proudly brought the opportunistic and constitutionally malleable tool Cass Sunstein there. Couple of awfully dubious hires if you ask me (and they are the ones she is proudest of and brags about). Bleeech.
I think I misstated this:
“
More precise to say:
That would reduce section 802 to mean: “The AG may, as his/her sole discretion, decide either to (1) cause any suit to be dismissed provided it makes the following determination . . . or (2) not cause such dismissal by declining to make such determination.”
That is is exactly the net result of the statute.
Well, that just proves that I did the country a service by not drafting any more legislation. There would have been chaos. Thanks to you, Mary for helping clarify what’s going on here. I hope you’re correct.
Heh, well, I am pretty confident i am relating what is going on here correctly, but that does not mean the ruling will necessarily come down right. This is how it looks now; Walker has given them full notice and opportunity to clean it up as best as they can. Maybe it will be good enough; that is the downside. As with any trial level argument or case, the relative merits are subject to the facts and party arguing them. I think I can read Walker well enough after the last year or two to be confident he is thinking there is a problem here; that is all i claim. He is very much like Reggie Walton in that he will listen to both sides and go where the facts and law lead him. So it is not a done deal. My excitement is founded upon the fact that the court is proactively dragging the parties here, and I do think that is a net positive, and I’ll stand behind that completely. Where it goes from there, we can only hope. It is a far better, and more considered, judicial hearing than we have come to expect and that is very refreshing.
Within the delineated context, that is exactly what I am saying, and is exactly how the matter has been portrayed as the power gained by the Bush Administration and there has been nothing different claimed to date by the Obama Administration. I can’t remember which pleading it was in (there are a lot and I am not going back through them all now), but that is exactly what the Bushies have effectively argued when confronted with the same general question earlier in this very litigation. Clearly they will attempt to walk and double talk that back because of the conundrum presented by Walker’s probing here.
Is it really so hard to believe that a provision of such arbitrary, capricious and unbridled authority was produced? After all, it was done entirely at the whim, pen and pleasure of the unitary executivists, and was demonstrably presented to Congress with little, and deceptive at that, briefing and almost no reading into the program. There is one other reason why they would craft it such, and that is that it gave them a giant blackmail hammer over participating entities such as telcos and email providers. On the one hand, they are compelled to assist, on the other they are protected only by whim. This provision was not rendered by a neutral, detached and informed Congress; it was rendered by a process of deception, misinformation and downright lies.
“Is it really so hard to believe that a provision of such arbitrary, capricious and unbridled authority was produced?”
Yes, it is hard to believe.
If this statute were adopted November 10, 2004, and Bush had just been reelected, maybe they thought they’d be in power forever. But this statute was passed in 2008 when it appeared likely there would be a Democratic AG in a few months. they didn’t want to leave to that AG the discretion to continue the cases or not. They wanted to shut them down.
This isn’t law; it’s political prediction: I think they wanted to make sure the cases would be dismissed and meant to leave no discretion to the next AG. So 802 was recrafted (badly, perhaps) with the intent to make the AG’s role factual, not a legal determination, and the facts that needed to be certified had already happened, and they knew that.
They weren’t playing Russian Roulette with whether or not cases that might eventually expose them to criminal liability would be permitted. They wanted the cases shut down and wanted to leave no outs.
If you agree that my restatement of section 802 is what they meant, then you’re implying also that, seeking legal certainty, they drafted a statute whose construction was inherently and obviously unconstitutional. I believe their lawyers were corrupt, and incompetent, but not that stupid. Of course, I could be giving them too much credit.
Again, this is my reading of the politics, not the law.
However they came to get to the point, the point is that they did produce that sloppy of a statute on its face. Quite frankly, I find it very easy to see how that came to be in any number of ways from unitary executive ideology to flat out stupidity. Or any combination thereof.
On the other hand, I note that a great deal of Lindsey Graham’s legal work on Gitmo cases has been struck down as unconstitutional by a fairly conservative Supreme Court. They really are bad lawyers, in every way.
And, of course, one, the other, both, or neither of us may be right here – who the hell knows. All I know is that Walker thinks there is a real issue here and he is working it meticulously. That is a good thing. Doesn’t, however, mean he won’t nevertheless rule the other way. That would be a bad thing.
39 – I’m not sure how to say this another way to make it more clear, Scarecrow, but I’ll try.
Then you would be talking about something OTHER THAN what Walker has asked for briefing on. Walker has asked for briefing on an issue that, if he decides it in favor of the plaintiffs, means the statute is invalid. He has asked for briefing on an issue that is a facial challenge to the statute. I don’t know how to rephrase that, but with a facial challenge argument, you don’t go on. if you win it. If you lose it, then you’ve lost it and you go on to other things. So at that point, you aren’t talking about this argument anymore (there are, as bmaz has pointed out, numerous other issues out there too, but the fact that the court has asked for additional briefing on this issue means he thinks it is pretty important and hasn’t been adequately addressed so far).
As to what “if” means, it means what it means. It means “if” the AG gives a certification. As a statutory construction matter, it is very simple for a statute to say, if circumstances x,y and z exist, the AG shall give a certification and based on that certification, the cout shall dismiss. But there is never any language anywhere that says the AG is required to issue a certificate. So, let’s say he doesn’t, then what? Can you point to any place in the statute that gives the defendants a remedy if the AG doesn’t provide them with a certification? Nope – there is no way for a defendant to require the issuance of the certification if an AG doesn’t give one. Go find where there is, and your argument has impact, but to argue that bc a case shall be dismissed IF a certificate is given, that is the same as saying that a certificate SHALL be given. Again, there is no statutory remedy for the defendants to force the action, which completely mitigates against “if” meaning anything but “if” – that the AG gets to decide if he is going to give a certificate or not.
I don’t know where you keep getting that kind of take – for any reason or for no reason at all – bc that isn’t the issue. The issue is that a certification MAY be given for the five stated categories (not for “any” reason or for “no” reason, but rather that any of 5 sets of circumstances may be certified) But again, there is no requirement for the AG to give the certificate. All it would have taken is the use of shall instead of if, but Congress didn’t use that. What they did say clearly was IF the AG issues a certification, here’s what happens.
No – it would mean that an AG can choose to give or not give a certification of one of the 5 items listed in the statute. But it is his choice. It’s kind of like saying that it is arbitrary and capricious (which is a bit more an as applied an operational standard) but it is more an argument (made by the Judge in his request for briefing – not crafted by me). It is Judge Walker who is saying:
He (Judge Walker) is saying there that statute clearly does not require that the AG issue a certification, and he can take no action if he wants and there is nothing in the statute that directs (requires) the AG issue at all, or that provides a timetable (like a “within 60 days of a request by any defendant, etc. – the kinds of things that are typically put in statutes where there is a directive/shall component) or that provides criteria for the AG to determine whether or not to issue.
Also, keep in mind that with respect to at least 4 of the 5 items, what the AG is deciding to certify or not certify could well be classified info. So an AG might well not want to make certifications in some cases even where the operative facts exist. But the first step, whether or not the AG is required to make certifications, is answered by the lack of directive language to the AG (and see how ez they find directive language to the court by contrast) and Walker has pretty much already made that decision and I think as a matter of every statutory construction case on discretionary v. mandatory directives I can think of, he’s dead on.
What he isn’t sure about and wants addressed is whether he there might be some Congressional intent issues that would be sufficient to override plain language; or whether there might be some constitutional avoidance applications that again would be sufficient to override plain language rules of construction.
This is really hand in glove with some of the very crappy drafting in the DTA and the MCA and the Judge has rightfully noted the crappy drafting. What you keep going back to is that in your mind you think that Congress must have meant the AG “shall” give the certifications, but you can’t point to any statutory language that supports that, bc nothing in the statutory language does support it. There are NO requirements laid on the AG and no statutory remedy or recourse for the defendant who thinks they should get a certificate if the AG doesn’t issue on.
So what you are focused on is the Congressional intent issue that the Judge has highlighted as being a part of what it want’s briefing on. And the court does want briefing on that – as well as on constitutional avoidance. Both of those are also rules of construction or canons, but all of those work together, and depending on how clear the language and how clear the intent, or how clear the possiblity of avoiding constitutional issues, the rules of construction get different weight and there isn’t a cookie cutter answer.
What I think you might well find in a lot of the Congressional record is an “intent” to focus on something that isn’t in the statute at all – telecom good faith. With all of the references in the record on that issue and intent, I think you could make a very good argument that Congress didn’t want to require issuance, bc good faith was meant to be a consideration and, for example, if it was clear that a telecom was not acting in good faith even though it had received the Presidential representation (for example, if the telecom knew that the FISA court Chief Judge had said the program was unconstitutional or the telecom’s attys had questioned theconstitutionality and had also pointed out the fact that a non-gov third party is not allowed to rely on an OLC opinion, or if they continued with the program before stautory revisions but after Judge Taylor declared the program to be legal, etc.).
So to the extent that good faith references are so prevalent in the Congressional record, I think that supports the fact that Congress intended for the AG to get a discretionary grant, where he could take things like good faith reliance into account in deciding to issue or not issue, but Congress omitted any specification of circumstances.
The Congressional record will also reflect lots of concerns for keeping classified information classified, so again, that would support the delegation by Congress to the AG of discretion as to whethr or not to give the certifications, based on whether or not the AG thought that in the circumstances such certification revelations might become “mosaic” issues where broader info is revealed by the certifications.
And, without being too exhaustive, what you really need to find is Congressional history/intent that the AG have NO discretion and is required to give certifications without exercising discretion. IOW, plain intent that the AG is not given discretion under the statute – I’m not remembering much from the debates that would indicate that. Even Republicans didn’t much say “we are going to pass a statute that requires the AG to give a certification that will dismiss the suits” vs lots of “people who operated in good faith reliance shouldn’t have to be sued, yada yada, so we need to let the AG take a look at this and then decide.
I’m not going to say who is or is not going to make the best Congrssional intent arguments, bc they haven’t been made yet and I haven’t looked at the Congressional record, but arguing that Congress wanted to give telecoms immunity won’t fly, bc Congress didn’t do that. Congress did not give immunity/amnesty. Congress did not determine that the President’s program was legal and that the 45 day reups did make sufficient certifications as to the program being focused on terrorists etc. (which is not a clear factual determination imo anyway – it seems to beg for legal analysis as to whether the program WAS tailored to those ends). Instead, members of Congress kept saying, we are going to have the AG decide. It’s going to be a bit like the language on the DTA, where statutory construction on plain meaning DID end up winning out over the argument that Congress “intended” to take away habeas rights for all cases, including pending cases.
I’m guessing there may be some scrambling to get some Congressional affidavits as to what those who voted thought (like what took place for the DTA) and maybe even some Congessional briefs filed and the record is going to be fine toothed.
On the Constitutional avoidance issue – I think it has very little impact, in that saying that you are not going to dismiss on due process reasons for lack of clarity in the statute as to when the AG is required to grant the certifications, doesn’t mean that there are not a host of other constitutional issues that are still on the plate if you get rid of that particular constitutional issue.
All fwiw – not sure if all that typing was really worth anything.
from the debates at the time to indicate that would be the history/intent. ere, I think you’d be hard pressed to find Congressional intent that the AG would be required to issued certifications, even though multiple sets of classified information might be invovled and the AG might think that there are reasons why the AG would not want to reveal the info in the certifications. As an initial matter, I think it is clear that Congress was not briefed on the program – everyone pretty much admits that – some members of some committees got some briefings, but not Congress as an entity. So it is going to be a bit difficult to say Congress intended that the AG had to act in one way or another, as opposed to saying that Congress transferre
rather that there are no standards (again, go find where the statute says what recourse a defendant has if the AG doesn’t choose to issue a certification) and so the.
At which point, the our judge would say, “gosh, that sounds like arbitrary discretion, and that’s unconstutional.” And of course, he’d be right. But that is not what the statute says.
“and, for example, if it was clear that a telecom was not acting in good faith even though it had received the Presidential representation”
should have read
“and, for example, if it was clear that a telecom was not acting in good faith even though it had received the Presidential representation, the AG has discretion to withhold the certificate”
and everything after “All fwiw – not sure if all that typing was really worth anything” could be pretty much disregarded – I was copying and pasting for what I was going to try to answer and ended up forgetting I had stuff left at the end.
This is all just looking too peculiar to be a simple mistake. Another long shot here — did someone very very clever intentionally make the drafting very very terrible, in order to get the bill passed and kick the can down the road until after the elections? Knowing that when challenged, and everyone knew it would soon be, it’d fail to stand up under close scrutiny? And would that help explain why Feingold and Obama caved and changed their positions to Yes votes? I seem to recall the R’s were threatening that terrible terrible things would happen unless the bill was passed pronto.
I’m not a lawyer but it seems if the law was noticeably bad to Congress they would have fixed it before it passed.
Maybe the issue was to change the law, quickly, no matter how horrible it looked, so that all of BushCos illegal warrantless wiretaps could be given legal cover (even if for only a short while). Whether the new law is subsequently found unconstitutional, we wouldn’t prosecute past misdeeds (’hey, it was the law of the land at the time. Who knew it was unconstitutional?’) it would act as a roadblock for anyone looking backward in time to prosecute. Only option would be to behave better and move forward… Obama style.
I wish someone would say that a new law which on its face is unconstitutional cannot paper over a previous law (or Bill of Rights) even for a brief period of time. Or that when it does, that new law subsequently announced to be unconstitutional does not and did not provide legal cover for unconstitutional doings and hoverings. Therefore prosecutions are still on.
Not to jump to unsupported conclusions or anything, but maybe — just maybe, mind you — the Bush lawyers were really, really crappy lawyers and as a result were not aware of the problems in what they drafted. And maybe the Dem Congresscritters and staff — many of them lawyers, most of them better ones than the R’s, some of them excellent — spotted the problems, recognized the opportunity, and stayed mum.
Also: Maybe — just maybe, mind you — I’ll flap my arms and fly to the moon.
Bottom line, it’s too soon to tell.
It seems to me — and this comes with the caveat that I have not been following this anywhere near as closely as bmaz & co. — that there is a deeper issue of delegation here, beyond the fact that the statute gives the AG the discretion to issue the certification or not to issue the certification. The deeper issue has to do with what such a certification is certifying and what its legal effect is. The statute purports to say that if A sues B under a statute providing that what B is alleged to have done is unlawful, B can escape liability if the AG says that he — or a sufficiently high-level intelligence apparatchick — told them that the President authorized the conduct and someone (Congress won’t specify who) determined that the conduct was lawful. There are so many problems with this arrangment that it’s difficult to know where to start. But let’s start with the most fundamental: Let’s assume that, despite the passive voice used in the “determined to be lawful” is interpreted to mean not some random lawyer, or, for that mattter, used car salesman in Duluth but instead to mean an official of the Department of Justice whose authority includes opining on the legality of such matters for the Executive Branch. And let’s assume also that the AG’s certification is itself truthful: Congress is saying that if the President and the Department of Justice said it was legal, then there is an absolute defense, which means that in effect, Congress is saying, after the fact no less, that the Executive Branch has the authority to say what is legal and not legal. That would seem to be a complete delegation of Congress’s authority to prescribe laws of general applicability, well within the vanishingly small contours of the non-delegation doctrine.
There are myriad other problems, which include the fact that the statute, as written, allows for absolutely no scrutiny of the certification or even factual support for it — i.e., the AG can simply lie. Of equal moment, the fudge — which I’m sure was advertent — in the use of the passive voice in the “determined to be lawful” proviso opens up futher cans of worms. Since you don’t get to that proviso unless the President authorized the conduct, and the proviso doesn’t specify who “determined” that the conduct was lawful, the statute does not preclude the possibility that the President himself both authorized the conduct and determined it to be lawful, which means that as long as the President did not think he was breaking the law, there is no liability for breaking the law. Seems to me I remember a David Frost interviewee stating this interesting principle of law. That would seem to be a secies of impermissible delegation as well. I don’t know as this is what Walker is getting at, but it seems to me to me more fundamental than the (completely true) observation that the AG has no intelligible standards to follow with respect to the question of making or not making the certification.
That is exactly right. So that there is no confusion created by my post here, those arguments and others based upon separation of powers, equal protection, violation of the takings clause etc. and a whole host of arguments have been and will be pled by the plaintiffs in the consolidated cases. They have done an outstanding job among the lot of them of pleading their case. For any of those with a PACER account, and a free weekend, reading through the files is an eye opening deal. There are also many key pleadings available at the EFF and ACLU websites.
But, as to this post, what I found fascinating, and a little exciting, was that with only a little bit of impetus, Judge Walker has, in addition to all the more standard attacks that Sebastian and others above have touched on, taken in interest in this additional area. This is not an interest you would expect from a judge inclined to uphold the viability of the dismissal motions; quite the opposite under the circumstances if you ask me.