Ronald Lee Gilman

“ When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. ”

“ The attorney-plaintiffs' challenge, however, is precisely that the TSP has operated outside of FISA despite the fact that Congress has declared FISA to be the "exclusive means" for the government to engage in electronic surveillance for foreign intelligence purposes in this country. 18 U.S.C. § 2511 (2) (f) . They rely on provisions of FISA and of Title III of the Omnibus Crime Control and Safe Streets Act, which criminalizes the interception and/or disclosure of wire, oral, or electronic communications other than pursuant to those statutes. ”

“ Since learning of the existence and operation of the TSP, the attorney-plaintiffs contend that they have ceased communicating by telephone or email about sensitive subjects with their clients and contacts. Whether the potential surveillance is conducted pursuant to a warrant is not the gravamen of their complaint. Their concern is directed at the impact of the TSP on their ability to perform their jobs. The causation requirement does not demand that the government's conduct be the "sole cause" of the attorney-plaintiffs' injury, only that the injury be "fairly traceable" to that conduct. ”

“ When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. ”

“ FISA places limits on the means by which the President may fulfill his duties under the AUMF. The President is free to engage in surveillance without a warrant up to the limits set by Congress when it enacted FISA, which is in keeping with Congress's stated purpose "to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." ”

“ The TSP forces them to decide between breaching their duty of confidentiality to their clients and breaching their duty to provide zealous representation. Neither position is tenable. The attorney-plaintiffs must travel to meet in person with clients and sources in order to avoid the risk of TSP surveillance. Unlike the situation in Laird, the attorney-plaintiffs in the present case allege that the government is listening in on private person-to-person communications that are not open to the public. These are communications that any reasonable person would understand to be private. ”

“ Despite the admonition of the Supreme Court that the language of the disclaimer was "neutral" and did not reflect any such congressional recognition of inherent power, the section has been a major source of controversy. By repealing section 2511 (3) and expressly stating that the statutory warrant procedures spelled out in the law must be followed in conducting electronic surveillance in the United States, this legislation ends the eight-year debate over the meaning and scope of the inherent power disclaimer clause. ”

“ To survive the government's standing-to-sue challenge, the attorney-plaintiffs do not have to demonstrate that their past communications have in fact been intercepted by the TSP. In Laidlaw, for example, the Supreme Court found that environmental groups had standing to sue a polluter where their members declared "that they would use the nearby North Tyger River for recreation if Laidlaw were not discharging pollutants into it." ”

“ Because the state-secrets privilege "operates to foreclose relief for violations of rights that may well have occurred by foreclosing the discovery of evidence that they did occur, it is a privilege not to be lightly invoked." ”

“ What the attorney-plaintiffs themselves allege, in fact, is that the existence of the TSP outside of FISA's minimization procedures has prevented them from communicating by telephone and by email with their clients, contacts, and sources, thus either compelling them to violate their ethical obligations, or requiring them to undertake costly overseas trips ”

“ In the present case, the attorney-plaintiffs do not raise a cause of action under FISA or under Title III; instead, their cause of action arises under the APA. Under § 702 of the APA, " [a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." ”

“ An association has standing to sue on behalf of its members when "its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." ”

“ Which characterization of injury one accepts will largely determine the causation prong (as well as the redressability prong discussed below) of the standing analysis. As one distinguished commentator has noted,
[t] he central problem in the causation cases is not whether there is a causal nexus among injury, remedy, and illegality; it is how to characterize the relevant injury. Whether the injury is due to the defendant's conduct, or likely to be remedied by a decree in his favor, depends on how the injury is described. ”

“ Moreover, the "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Laidlaw, 528 U.S. at 189 (brackets and quotation marks omitted) . The government urges us to find that there is "no longer any live genuine controversy to adjudicate" because the TSP ceased to exist when the President's last authorization for it expired, thus resolving and mooting the plaintiffs' claims. ”

“ The attorney-plaintiffs, as part of their representation of clients accused of being enemy combatants or of providing aid to organizations designated as terrorist groups, declare that they have conducted internet research on terrorism, religion, politics, and human-rights issues in parts of the Middle East and South Asia. ”

“ In United Presbyterian Church, a group of religious and political organizations, academics, journalists, and a member of Congress challenged the constitutionality of an Executive Order that "specif [ied] the organization, procedures and limitations applicable to the foreign intelligence and counterintelligence activities of the Executive Branch." ”

“ The lead opinion contends that Title III cannot support standing because the statute provides that " [n] othing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications." ”

“ See 50 U.S.C. § 1805 (f) ("If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.") (emphasis added) .
Admittedly, the Supreme Court has furnished little guidance regarding the scope of the redressability inquiry beyond requiring a "'direct' relationship between the alleged injury and the claim sought to be adjudicated." Linda R.S. v. Richard D., 410 U.S. 614, 618, 93 S.C.t. 1146, 35 L. Ed. 2d 536 (1973) . ”

“ Despite the stated narrowness of this holding, the government argues that Hamdi allows us to read the AUMF as authorizing "signals intelligence" gathering on al-Qaeda and other suspected terrorists, and to construe such signals intelligence as including electronic surveillance targeting U.S. persons inside this country. ”

“ The concurring opinion then argues, in reference to the Laidlaw plaintiffs, that their " fear of harm from the defendant's undisputed conduct-conduct that would also undisputably affect plaintiffs personally if they undertook their desired activities-was sufficient to support standing." ”

“ Privileged communications remain such under FISA. 50 U.S.C. § 1806 (a) ("No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character.") ; id. § 1806 (h) .
As noted above, the lead opinion finds that Laird controls this case. Lead Op. at 16. ”