Notes on the ACLU's 6th Circuit Oral Argument

Continuing from my earlier post about the government’s argument.

Ann Beeson focused the ACLU’s argument on a narrow legal issue: must the President abide by FISA? She highlighted how a failure to decide on this issue would leave the President to follow/not follow the law as he sees fit. And regarding mootness – she noted that if one voluntarily ceases illegal activity (in this case, going outside FISA), that does not make the illegality moot. And to address the questions of standing, she emphasized how three other Courts found standing to hear cases about the program.

Judge Gibbons noted that the harm done to the Plaintiff’s resulted from decisions made by the clients – to which Ms. Beeson remarked that it was a professional and ethical responsibility of the Plaintiffs that lead them to change their behavior – professionally they had no choice precisely because of the TSP. Judge Gibbons questioned the allegation that the Plaintiff’s were talking to terrorists or individuals associated with Al Qaeda. Ann responded by telling the specific stories of two defense lawyer who are plaintiffs with the ACLU; individuals who represent those accused of terrorist related crimes. She also describe the situation of a plaintiff who is a freelance journalist who reports on the Middle East.

Judge Gilman asked for thoughts on the government’s reliance on Laird, to which Ms. Beeson responded that the Plaintiff’s have suffered concrete harm – they not only had to stop communicating but also had to incur costs. Plus, the government has shown no evidence disputing that the Plaintiff’s have suffered harm.

Judge Gilman asked if they should consider holding a future evidentiary hearing, yet the ACLU noted it’s request for summary judgment because both sides have had a chance to present evidence.

Ms. Beeson continued with why the Court can easily affirm Judge Taylor’s decision – in short by saying that FISA provides the exclusive means for domestic surveillance and that the President has no authority outside of FISA. She raised the President’s power under FISA to conduct warrant-less surveillance 15 days after the start of a war, and up to 72 hours before getting FISA approval – and then noted how the TSP has continued despite FISA for over four years, despite the specific laws put in place by Congress to address such war-time surveillance.

As Ms. Beeson summed things up,

“Now it’s for the Court to check the Executive branch. Congress did its part.”