Best regards, Armin

I appreciate your willingness to assume that what you perceive as error on my part was in good faith. That represents a welcome change from the usual run of responses.

I am not, however, in error - at least not to the degree that you suggest. Some of the cases to which that statement refers were indeed decided prior to the enactment of FISA. But not all. And even those that were were not "mooted" by Congress.

Regarding the first point, at least two of the cases to which I refer were quite obviously handed down after FISA. U.S. v. Duggan 743 F.2d 59 (2nd Cir. 1984). Here the Second Circuit upheld the Constitutionality of FISA and stated, in pertinent part:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

I do not read the Second Circuit's opinion as to the Constitutionality of the requirements set forth in FISA that follows as ruling otherwise.

And, of course, the FISA Court of Review's opinion in Sealed Case No. 02-001 obviously postdates FISA. In that case, the Court of Review unequivocally endorsed the aforementioned decisions predating FISA:

The Truong court [Fourth Circuit], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

The precise boundaries of the power in question may be debated, naturally. But the long and the short of it is that, Justice Jackson's solo concurrence in Youngstown notwithstanding, if the Executive has a certain power under the Constitution, Congress cannot "moot" that power by enacting legislation.

Prior to the filing of this case, the Second, Third, Fourth, Fifth, and Ninth Circuits, as well as the FISA Court of Review, had all held on that the President has the constitutional power under Article II to order warrantless surveillance for national security purposes

I'll assume this is a good faith mistake. All these decisions were prior to FISA or prior to relevant amendments of FISA, and thus quite irrelevant from a legal standpoint. They were mooted by Congress.

They all ask the same question: does the President have the power to do X in the absence of legislation. Once there's legislation barring X, the legal calculus changes dramatically. Per Jackson's concurrence in Youngstown, the President very rarely gets his way when Congress has spoken.

You said that one can conceive of a set of circumstances in which standing would not be a bar to the suit. Can you share with us a circumstance that might pass this courts test? I can't think of one that doesn't involve a whistle blower.

It's worth noting, also, that the panel specifically asked the Plaintiffs' advocates if a rehearing on standing would be useful and they expressly stated that the publicly available information (on which this ruling rests) was sufficient to supprot their argument. That may well have been a long-term strategic decision (a favourable ruling on this set of facts would certainly be useful for their line of work) but in this case it may have been a poor tactics (or perhaps not, since the panel seems to believe that any such evidence would also be barred).

Despite that unnerving fact, the ACLU did not pursue a correct avenue for challenge. I'm not sure if there is a correct avenue, but they should have either looked for one or made a better case with a plaintiff who might at least have colorable standing.