Why SCOTUS Will Affirm ACLU v. NSA...With Scalia Writing for the Majority

[MrCoffee]

I’m predicting that SCOTUS will uphold the district court ruling 6-3, and it wouldn’t surprise me at all if Scalia writes for the majority. Here’s why…

Standing. In order to sue, you have to show 1) that you’ve suffered an injury in fact that is both concrete and particularized and actual and imminent (as opposed to speculative or hypothetical); 2) a causal connection between the injury and the conduct you’re suing over; and 3) redressability (the court has to be able to fashion a remedy). This is usually the sticking point for suits brought by associations like the ACLU. What they did (and this is the main reason I think it will be upheld), is file a bunch of affidavits from reporters and lawyers who said they suffered actual economic loss because contacts and clients couldn’t talk to them for fear of wiretaps.

State Secret Privilege. The state secret privilege protects the govt from turning over information detrimental to the national security. The govt argued that, by invoking the privilege, the ACLU wouldn’t be able to prove their case without classified info. The ACLU (in a BRILLIANT tactical move) didn’t do any discovery at all. They said “Hey, we can prove our case with public statements made by the White House.” And they were right.

The rest is basic Constitutional law. *EDIT* FISA lays out the paramaters by which the Prez can conduct foreign wiretaps within the bounds of the 4th Amendment. He didn't do it. Case closed. The dissents will focus on standing and state secrets, but they’ll lose. Scalia will have no problem with this opinion.

[dicknbush]

1. Hmmmmm...You could be right

But we shall see.

[Demeter]

2. They'll Find a Way to F*** It Up

or die trying.

[ThomWV]

25. The "They" You Refer To Is The ACLU, They Often Get It Right

This is not the generic 'they' we use all the time do deride someone or some group for not doing what we should have been doing ourself or selves.

[Demeter]

46. They Is the Supreme Court (Are)?

Kindly do not put aspersions in my mouth.

[bryant69]

3. Hopefully.

Certainly your reasoning sounds pretty good.

Bryant
Check it out --> http://politicalcomment.blogspot.com

[Totallybushed]

4. There isn't a

chance that you are right. The Supreme Court cares no longer about our constitutional rights as they have been defined over the last 50 years or so.

[MrCoffee]

5. Yeah, I can't even begin to respond to that.

[Zensea]

22. Then why did they rule against Bush on Guantanamo?

kind of disproves your thesis and that happened this year

[MrCoffee]

27. Ummm...which case are you referring to, please?

[Zensea]

45. the Hamdan case &

http://www.cnn.com/2006/LAW/06/29/scotus.tribunals/index.html

http://www.npr.org/templates/story/story.php?storyId=5520809

and also the earlier case of Hamdi v. Rumsfeld

http://www.law.cornell.edu/supct/html/03-6696.ZS.html

http://en.wikipedia.org/wiki/Yaser_Hamdi

are both instances of the Supreme Court protecting liberty and rejecting the Bush argument

[damntexdem]

31. I think you may be right overall, but ...

5-4, and with Scalia dissenting.

[Totallybushed]

38. Same reason

the ACLU will defend the KKK from time to time.

We'll see. I'm not particularly rooting to be right, here.

[MrCoffee]

39. They should defend the KKK. It's the only way our system works.

They also defended a religious group a few years ago who were prosecuted for baptising people in a river. I was proud to be a member of the ACLU when they did that.

[mmonk]

6. Isn't this going through the 6th circuit court of appeals first

and from what I've heard, they are more likely to side with the administration?

[MrCoffee]

9. It will end up before the Supremes. Doesn't matter what the 6th does.

EDIT: Well, it does matter, but SCOTUS gets the last word.

[mmonk]

12. Well let's hope

they side with the constitution and not with any "unitary executive" type ruling which would effectively create an executive dictatorship and end checks and balances.

[MrCoffee]

16. Courts will never pass on the "unitary executive" theory...

It's too dangerous for *them*. The expansion of executive power comes at a cost to all the branches, and they generally are rabid about protecting their turf. Pissant wussy Congresses excluded, of course. The courts won't tolerate that "unitary executive" crap. How many times did the court yesterday remind the executive that he's a creature of the constitution?

[acmavm]

19. Well, if they do uphold that urinary executive crap then there

will no longer be any need for their asses, will there? We'll just have some Star Chamber filled with repub monkeys casting judgement on us all.

[MrCoffee]

29. Exactly...Which is why the courts won't let it slide.

[damntexdem]

32. "Star Chamber filled with repub monkeys casting judgement on us all"?

And how will we be able to tell this apart from the current SCOTUS? Oh, yeah, by one appointee -- that's all.

[Selatius]

37. It's all about power

You can have a very partisan Supreme Court that can give you Bush v. Gore cases, but when it comes to power, the Court will protect its turf. "Unitary executive" theory is an assault on the SCOTUS.

If Bush wants to invade foreign countries by scaring Congress, pass tax cuts for the wealthy, shred social programs, and so on and so forth, he can do that without the unitary executive notion on the table.

[MrCoffee]

42. Bingo. And maybe a Dem Congress would actually stand up to him...

and then I came back from Dreamland.

[seabeyond]

48. democrats have stood up, spoken out and kicked ass on hte floor

the republicans then close it and put it back in hte closet. what happens when repugs control all. please put responsibility in the appropriate place

[Bake]

43. Mr. Coffee NAILED it. Nailed it.

The Court knows that the "unitary exec" is a slap in the face to the separation of powers, and an encroachment on the Court's turf. Remember Marbury v. Madison? I see this case as Marbury all over again: "It is distinctly the province of the judiciary to say WHAT THE LAW IS!"

The Court will defend its turf like a pit bull.

Bake, Esq.

[MrCoffee]

44. It was almost like John Marshall was sitting in the district court...

All throughout the ruling regarding the 4th and 1st Amendments, and especially the "Inherent Powers" section, you could feel Marshall's spirit in there. It's an amazing opinion.

[Jim__]

7. How can the court address the redressability issue?

If I understand what you're saying, the court has to be able to fashion some type of remedy. But, if these warrants can just be obtained under FISA, then, even though the court prohibits the current program, there is an alternative program that is legal and has the same effect. Unless, the idea is that FISA would not approve all this eavesdropping.

Or, am I misunderstanding the issue of redressability?

[MrCoffee]

10. The remedy is to make the govt comply with FISA

FISA is the law. You make an international call *knowing* that FISA's the law, and that the govt can listen in, but that at some point they have to go before a judge and show cause, and the judge has to authorize it. It's not the eavesdropping that ACLU sued over, it's the WARRANTLESS eavesdropping.

[sinkingfeeling]

8. I think you're right. Even the radical right on the court know they can't

out-right rule agaist the Constitution. They did hand Bush a defeat on his 'military tribunals' in Hamden vs. Rumsfeld.

[damntexdem]

33. But the radical right on the court didn't do that:

just the more-moderate members of the court.

[Mandate My Ass]

11. Good analysis. I hope you're right but.......

my main concern is that the RWers have successfully transposed the definitions of whistleblower and leaker. They claim whoever outed Plame was a whistleblower and whoever outed the NSA program is a leaker, although they are deliberately incorrect on both counts. What if the court says that the only harm done the journalists is that they can no longer leak sensitive information that would only serve to harm national security anyway? No harm, no foul in that case. :shrug:

[MrCoffee]

14. For standing to sue, the harm is actual economic loss

Your argument that the only harm is that journalists can't leak is actually a defense of wiretaps. It's a justification for the program. Standing to sue is all about getting your foot in the courthouse door. The affidavits (which are proofs of your pleadings in a summary judgment proceeding) say that they suffered an actual "injury in fact" because of the program.

The fun part of the "prevents leaks" defense is "That's what FISA is for!!" You CAN eavesdrop, it's perfectly legal. You just have to get a warrant, which you can do after the fact! Which means you have to show cause as to why you eavesdropped, and the judge has to say ok.

[mmonk]

21. Yep

The only reason someone would want to circumvent FISA is that they are wiretapping people that aren't related to terrorism in any way and they wish to violate the law in secrecy with no accountability.

[Mandate My Ass]

34. I agree, the standing is there, no doubt

and, yes, what I posted was what I anticipated the hard-right wing of the court doing to justify the warantless spying. I know they handed Bush his butt on Hamdan, but they also pretty much said, "oh well, just go back to congress and have them re-write it the way you want it and we won't have a problem with it."

Specter's disgrace of a bill would give Bush carte blanche to spy without warrants all he wants. My question then is would they rule that Specter's bill is unconstitutional? Without a doubt it is. Would the ACLU have a better chance challenging the Specter bill? Methinks, yes.

[MannyGoldstein]

13. 8-1, I Think

SCOTUS ruled 8-1 (Thomas, of course, dissenting) in Hamdi v. Rumsfeld that the Constitution actually does protect citizens. As I see it, ACLU v. NSA is the same case - a different right (privacy vs. habeas corpus) - but the same argument - is the Constitution optional for the President? I can't see this one having a much different outcome.

[MrCoffee]

15. 9-0 wouldn't shock me...but I was hedging my bets

Scalia wrote a fantastic opinion regarding the right to counsel last term, and Long Dong Thomas sided with the dissent (I think he signed Robert's dissent).

[MannyGoldstein]

17. I'd Rather Have 8-1...

I know that even a stopped clock is right twice a day, but anytime Thomas and I are in agreement, I have to think hard about whether I've screwed up.

[MrCoffee]

18. LOL!

[longship]

20. Thomas and Scalia are Siamese Twins of the court.

Where one goes, the other goes.

[MrCoffee]

26. I think they had a lover's quarrel...

Read US. v. Gonzales-Lopez. It was a 5-4 decision (Scalia writing for the majority) which held that the 6th Amendment right to counsel protects a criminal defendant's right to the counsel of his choice (if he can pay for it). It is a beautiful, well-reasoned decision protecting the right to counsel.

What's great about it is that Alito, in dissent, offered to give Nino a lesson in "original intent". Thomas joined the dissent. You can almost imagine his head exploding in chambers.

Edited for the link: http://www.supremecourtus.gov/opinions/05pdf/05-352.pdf

[Blue_In_AK]

23. Does this have to go through the Circuit Court

before it gets to the Supremes?

[mmonk]

24. Yes, I believe the 6th circuit.

[stopbush]

28. SCOTUS could always rule for bushco, saying that the ruling

is specific to this case and cannot be taken as a precedent.

See: Bush v Gore...

[Hamlette]

30. they'll give it to Bush under war powers

there was a time when I trusted the Supremes to do the right thing. That ended with Bush v Gore which cannot be defended on any legal ground.

The government has usurped all sorts of rights in "a time of war". Wilson made it a crime to say anything bad about the government during WWI. This court will allow it under some broad necessity/war powers exception to common sense/the law/the constitution.

The one thing I've learned is the GOP brain is never troubled with hypocracy when they are doing it. They can rule one way for a GOP prez and a different way for a Dem president and not lose any sleep.

[MrCoffee]

40. This was the argument that had me nervous, until Hamdan came down.

Now, I don't think it'll hold any water.

[Hamlette]

49. I must admit, Bush's little temper tantrum today makes me wonder

he seems to be way to defensive about this. If he were secure in his position, he would not be having a fit about this case.

I still think it will be difficult for the Supremes to slap him on this one. My bet is Congress passes a law saying Bush is King and can do anything he wants. Once that law is passed the Supremes will say: No harm, no foul. Congress is willing to roll over for him so we shouldn't get in the way.

I hope I'm wrong.

[seabeyond]

35. why are you not hopeful 6th circuit will turn down appeal?

and wouldnt that be the end of it?

[MrCoffee]

36. I wish!!! I think they'll probably hear the case...

and they could very well affirm...but the govt will still appeal to the Supremes.

[Rex]

41. It's a slam dunk.

Open and shut case IMO.

[originalpckelly]

47. Any person not putting party above country would vote against this.

Even that Judge Napolitano on Fox News is against this. Hopefully if these people are real conservatives they will uphold the lower courts decision.