Is this an accurate representation of what happened with the the recent decision? That is, is it accurate to suggest that because the US government didn't offer a rebuttal of certain points that they conceded them? And while we can't really know the reason, does the idea that the motivation for such an act could be attributed to the belief that secrecy would be the kicker to kill the case?
Posted by binky at August 23, 2006 07:28 PM | TrackBack | Posted to Law and the Courts | The Ever Shrinking ConstitutionIn a nutshell Greenwald points out that in civil litigation, if the plaintiff makes an argument which the defendant cannot or will not answer then the court is obligated to consider that point undisputed.
Unlike a law professor who searches out "the literature" in order to find every argument on an issue about which they opine, courts - especially District Court Judges - decide issues on the facts and arguments before them, i.e., those that are raised by the parties. If a party does not raise a certain legal defense, then the judge is under no obligation to address it (and it is arguably improper if she does). If a party fails to dispute a particular fact, then it is improper for the court to do anything other than treat the fact as undisputed.
Although a judge might go searching for legal arguments to consider if, for instance, there is a pro se litigant as part of the case, where, as here, the DoJ is before the court arguing in favor of presidential powers, the District Court has every right to assume that the issues raised by the DoJ are the ones that need to be addressed, and no others.
Put simply, it appears that the DOJ never offered any argument that the government did not break the law. Judge Taylor considered these points undisputed for the simple reason that nobody disputed them. Rather the DOJ argued first that the AUMF supercedes FISA, which Judge Taylor took time to swat down and which Hamdan suggests will be a sure loser when it reaches the Supreme Court. Second the DOJ argued that the president's Article II powers cannot be restricted by Congress, which Judge Taylor also spent considerable time answering. Once again reflect for a minute on how conservatives have finally decided that America should be ruled not by a president but a king. The walls, man, they're melting.
Beside those two arguments the DOJ apparently bet the farm on shutting down the case with a State Secrets claim. Perhaps the 6th Circuit, if it accepts the case, will hear the substantive arguments that the DOJ chose not to present in Judge Taylor's court. But on the other hand if the government thought that it had a legally solid case then it seems sensible to present it before they have a humiliating loss under their belt. If the best they have to offer is what they have already presented then it seems unlikely that a sensible court will find enough wrong with Judge Taylor's decision to overturn it.
my federal law is a little dusty, but i think the gist of the counterargument to all of this is that DoJ was entitled to assume that where there were clearly disputed issues of fact it would not need to take up the areas to which those issues of fact pertained during summary judgment. and while it's never brilliant to leave assertions unaddressed, and one does so at one's peril, it's also not the best tactical move to quibble with everything (and too many parties hurl the kitchen sink in with the baby and the bathwater; there are page limits). i still haven't worked my way through the entire opinion, but the consensus among fairly sober law-minded commentators on the right and left, which sounds about right to me, seems to be that the state secrets argument was a pretty serious trump and a not-so-weak argument, and that if judge taylor was going to wander off into a bunch of unprecedented stuff (not unheard of for a district court but generally to be avoided) more or less sua sponte she would at least pay the parties the courtesy of directing them to argue the issues.
again, i'm still fairly underinformed here, but part of my faith in the idea that the court went kind of wild on this resides in the fact that even 6 years isn't enough to make an agency like the DoJ, which is generally packed with manifestly able litigators, do obscenely stupid things like inappropriately disregard arguments or appeals to judicial notice it had any reason to expect the court, even a carter appointee (gasp!), would indulge at such an early stage in the litigation.
it's too easy to get caught up in the fact that Taylor can write, and she can. the question is, is she way out of the ambit of the inquiry properly before her. as someone noted, it's highly irregular to rule on issues neither party really briefed, and as i understand it many of her constitutional points would have come as somewhat of a surprise to both sides. that same commentator, publius i think, observed that if she was dead set on addressing a particular issue, she should have extended to the parties an opportunity to brief her on it. district judges have, usually, two full-time clerks. good thorough briefing is an integral part of the process by which a judges' chambers pin down and examine an issue. the law is a very big place; without a little guidance, one can get lost very easily.
anyway, i suspect a remand, at a minimum, is a fait accompli, given the composition of the sixth.