In late September, in the case of Amnesty International v. Clapper, the Second Circuit denied en banc rehearing of a panel ruling that held that various plaintiffs had Article III standing to pursue a facial constitutional challenge to a new provision of the Foreign Intelligence Surveillance Act that created new procedures authorizing government electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence. The en banc request failed on a 6-to-6 tie.
I am not going to address here the substance of the standing question in the Amnesty International case (which may well be headed for the Supreme Court). Instead, I’d like to call attention to a few facts:
1. Since some time in 2010, Lincoln Caplan has been a member of the New York Times editorial board, where he “writes about the U.S. Supreme Court and other subjects related to legal affairs.”
2. Caplan is married to Second Circuit judge Susan Carney, who voted to deny en banc rehearing in the Amnesty International case. (Carney can be said to have provided the decisive vote: if she had voted to grant, or hadn’t taken part, en banc rehearing would have been granted.)
3. In March 2011, the Times editorial board published a house editorial praising the panel decision. (Carney, I’ll note, was not yet on the Second Circuit at that time.)
4. A month ago, in a house editorial titled “Accountability Avoidance,” the Times editorial board celebrated the Second Circuit’s denial of en banc review (“a well-deserved setback to the Justice Department’s accountability avoidance strategy”). The editorial also slammed Chief Judge Dennis Jacobs for his colorful dissent, which it said “embarrassed the appeals court he is supposed to lead and cast serious doubt on his judicial impartiality.”
5. The Times’s ethics rules state, in paragraph 101, that “staff members may not furnish, prepare or supervise news content about relatives, spouses or others with whom they have close personal relationships.” (Paragraph 5 makes clear that the term “staff members” includes editorial writers. Although it’s not entirely clear, the term “news content” appears to be a shorthand for “news or editorial content,” as distinguished from advertising.)
Now, two questions (and I genuinely mean these as questions, not as assertions cast in the form of questions):
1. Did Caplan draft the “Accountability Avoidance” editorial or play any role in reviewing it? (Or did he instead inform his colleagues that he had a conflict that prevented him from playing his usual role?)
2. Did Caplan draft the March 2011 editorial or play any role in reviewing it?
If the answer to the main question 1 is yes, then it would seem that Caplan himself is engaging in “accountability avoidance”—hiding behind the anonymity of NYT house editorials while applauding his wife’s vote and attacking Chief Judge Jacobs. (I raised a similar concern about an editorial last year that went out of its way to urge the confirmation of a group of nominees that included Carney.) That would be an interesting fact, all the more so as NYT house editorials (like this one) in Caplan’s area of specialty have gone after Justice Thomas for supposed conflicts involving his wife’s activities.
If the answer to question 2 is yes, that would raise the question whether Carney properly participated in the decision whether to review en banc a decision that her husband had publicly (though anonymously) celebrated.