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.

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.

Also: Maybe — just maybe, mind you — I’ll flap my arms and fly to the moon.

Bottom line, it’s too soon to tell.

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.

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.

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?

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.

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.

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.

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.”

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:

It appears to leave the Attorney General free take no action at all or to take action to invoke section 802’s protection on behalf of one or more “persons” based on any consideration of his choosing; no charge or directive, timetable and/or criteria for the Attorney General’s exercise of discretion are apparent.

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.