Benjamin Wittes  explains exactly what the D.C. Circuit Court of Appeals did—and did not—decide in its recent ruling on the National Security Agency’s bulk telephone metadata collection program.  

“The D.C. Circuit panel—composed of Judge Janice Rogers Brown and Senior Judges David Sentellle and Stephen Williams—agreed that the case was not moot. They also all agreed that the lower court decision by Judge Richard Leon—which had gotten a lot of acclaim when it came out but which everyone with a D.C. Circuit pulse knew was DOA—was, in fact, DOA. Two of them, Judges Brown and Williams, agreed that the case should be remanded to the district court for further proceedings, though they did not entirely agree on why. Judge Sentelle, meanwhile, argued that the case should be dismissed because the plaintiffs lack standing.”  

“First, it does not speak well of the Supreme Court’s institutional performance in Clapper  that this question is still sufficiently open that these three judges could disagree over this point. I don’t have strong views of what the answer to this standing question should be, but I do have strong views that the lower courts should have sufficient guidance that three judges can’t reasonably split—with one arguing there is standing, another arguing there isn’t standing, and a third arguing there isn’t standing yet but the plaintiffs should get another try.”  

“Second, the standing picture gets only weirder when you factor in the Second Circuit’s approach to the question, which differed from that of all three  D.C. Circuit judges.”