More on the Anna Diggs Taylor Decision

I have posted several times on issues raised by Judge Taylor's decision in the NSA spying case, pointing in particular to several posts by Publius criticizing the judge and several by Glenn Greenwald in her support.

Today, there is some further clarification from Glenn Greenwald in his comments on some issues raised by Owen Kerr that addresses some of the questions I have raised in my posts . These comments seem to me to refute Publius' assertion that it was inappropriate for the judge to rule on the merits because the proceedings were still in a pre-trial stage. Apparently, the Judge had ordered the DOJ to address the merits of the case, not once but twice. Their refusal to do so had, thus, to be taken by the Judge as an admission of the ACLU's factual claims in the case (at least according to Greenwald).

... I wrote about here at the time it happened, the DoJ twice tried to convince the Judge Taylor not to rule on the substance of the ACLU's claim without first ruling on the DoJ's "state secrets" argument, and twice the court refused, ordering the DoJ to address the merits of the case (as this Comment to Kerr's post, documenting the case's procedural history, demonstrates). But the DoJ essentially refused to do so, and devoted almost all of its brief to arguing why the court lacked the power to adjudicate these issues, and almost none of its brief to arguing about the issues themselves. As a result, and -- as this excellent Comment to Kerr's post reflects -- Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (R. 56) to treat the ACLU's factual claims as undisputed for purposes of deciding the motion.

But plainly, Kerr -- when issuing his widely cited condemnations of the court's ruling -- had no idea (a) that any of this (meaning the case's procedural history) even happened in this case and/or (b) that on a Motion for Summary Judgment (which is what the ACLU filed and the court decided), the most basic rule is that any fact that one party fails to dispute (with evidence) shall be deemed "undisputed." Thus, in response to the Comment documenting the procedural history, Kerr wrote: "Thanks a TON for the background of the case; this is very helpful, and I hope to have an update or new post up soon about it."

I suppose most of this debate is really just a lot of hot air. The only real question is whether the decision will withstand the appeal. We'll just have to wait to find out. Greenwald does admit that,

... it is certainly possible that there will be some ultimate reversal on a procedural issue (most likely the "standing" problem)