Althouse: "What sense does it make to take the judge's word about what the law means over the word of the president?"

August 22, 2006

"What sense does it make to take the judge's word about what the law means over the word of the president?"

I've got an op-ed in Wednesday's NYT about ACLU v. NSA, activist judges, and irony.

ADDED: I like the illustration -- by David Suter (not David Souter) -- with the gavel-as-microphone image.

UPDATE: I can see that a lot of people are missing the point of the op-ed... But I don't want to get out my sledgehammer, and I'm bored with telling people to calm down and reread it.

ANOTHER UPDATE: Lot's of commentary here and elsewhere to keep up with, like this long thread at Volokh. Some other blogs are attacking me in a way that's too vicious to link to and engage with, so you'll have to just imagine what I'd say if chose to respond. I've got to expect to be attacked over this, even though it's mostly a basic civics lesson! Imagine what people would say if I'd actually said the government's interpretation of the Constitution and the statutes is correct (which I've never done, here or elsewhere).

149 comments:

Maxine Weiss said...: Wow!

Congrats.

So you're in print now?

And, the NYT to boot.

The big leagues.

You don't fool around.

The only bad thing is they didn't print out your full web address, it appears.

Sort of a backhanded thing.

Whaddya expect from the NYT.

Peace, Maxine; 8/22/06, 10:36 PM
Ann Althouse said...: If people Google "Althouse," they'll find it more easily than trying to type in the URL. And this is my 4th op-ed in the NYT in the last year (not to mention 2 book reviews).; 8/22/06, 10:39 PM
JohnF said...: If I may paraphrase what I take to be your point (and one it's hard to disagree with): if judges are going to make political decisions instead of legal ones, why should we listen to them instead of to the guy who was elected? Why should the judiciary have the monopoly on political decisions?

You are right that Marbury represented a tacit deal: judicial review in exchange for judicial restraint. Taylor, and too many other judges, have broken that promise.; 8/22/06, 11:06 PM
Palladian said...: And how fitting that the illustration for your op-ed about judicial fiat was done by one David Suter!; 8/22/06, 11:36 PM
Melissa Clouthier said...: Well done. I can't help but wonder if President Bush is asking the same thing and, ala President Lincoln, saying "to heck with it" and continuing the program anyway. So much is at stake. And after lives were lost, guess who would howl the loudest?; 8/22/06, 11:42 PM
David Walser said...: Congratulations and well done. I've printed it out for my daughter's high school government class reading assignment. (She's got to read one editorial column a day. Might as well be a good one!); 8/23/06, 12:11 AM
SippicanCottage said...: This comment has been removed by the author.; 8/23/06, 12:28 AM
The Commercial Traveller said...: Well, my suspicions have been confirmed: Ann Althouse is a fraud.

There is simply no way someone who went to law school and teaches constitutional law writes this well, with such clarity and succinctness.

I'm reporting you to your superiors at UW-Law, asking them to re-check your credentials.

Also,

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?)

Heh. I am going too far in reading a dig by Tayalor at George W. directly here, being the son of another president? Otherwise, quite frankly, the hereditary kings comment seems wildly out of place in a contemporary legal decision--except, as you say, some attempt to make the decision appear more "intellectual" and grandiose or if it is meant to disparage Bush 43.; 8/23/06, 12:31 AM
SippicanCottage said...: This comment has been removed by the author.; 8/23/06, 12:44 AM
SippicanCottage said...: This comment has been removed by the author.; 8/23/06, 12:53 AM
The Mechanical Eye said...: But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

Very nice, subtle jab at those who fashion themselves above the movement Goldwater began.

I wonder if Mr. House will say anything substantive or just issue more condescension disguised as intelligence?

DU; 8/23/06, 12:59 AM
Brent said...: It is difficult to imagine the New York TIMES making a better choice of blogger to write the op-ed that eviscerates last Friday's smarmy editorial praising the Taylor decision.

Because of you, Ann, I actually have something nice to say about tomorrow's edition of the TIMES.; 8/23/06, 1:10 AM
Pete said...: Ann, you said "How much power do hereditary kings have these days, anyway?" Well,
a) Look at Kim Jung Il
b) Some respected commentators suggested having a king in Iraq after Saddam

http://www.foreignaffairs.org/20030501faessay11218/adeed-i-dawisha-karen-dawisha/how-to-build-a-democratic-iraq.html
So, the fear is: a king is a law unto himself, and can confuse himself with the State, as did the French king when he said:
“L’État, c’est moi"-- "I am the state." See also: ”Bush: 'L'etat, C'est Moi'
by Helen Thomas where Ms. Thomas says "We are now learning what President Bush considers to be the limits of his power—nothing.

In public appearances this week[Friday, January 27, 2006], Bush defended his program of domestic spying without court approval, citing the inherent war powers of the presidency under the U.S. Constitution. "

There also is the possibility that George Bush regards his position as inherited from his father who was the President, and that this was all put in place by God. Hmm, that theme is the divine right of Kings.

To conclude: Judge Taylor was making a reference both to our President holding himself above the law, as if he were the State, and that President Bush may well feel his powers are hereditary, if not also God-given.

Of course, a judge would be too circumspect to use news reports of President Bush's alleged quotes that God is instructing Bush, but I think Judge Taylor alluded to three elements of it by using a non-redundant phrase "hereditary kings."
a) Bush feels he is doing God's bidding
b) Bush feels he can do no wrong, since he is the unitary executive (or the King)
c) Bush feels he inherited the position by virtue of his father being president.; 8/23/06, 1:19 AM
BigMitch said...: Yes, let's look at that juicy quotation from the opinion: “There are no hereditary kings in America and no powers not created by the Constitution.”

You say, " this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity."

Actually, the defendants were making an argument that the president "has been granted the inherent power to violate not only th elaws of the Congress but the First and Fourth Amendments of the Constitution, itself." [emphasis added.]

It is in this context that Judge Taylor made the observation which you quoted, to which she appended the following salient sentence: "So all 'inherent powers' must derive from that Constitution."

It is because of the President's breath-takingly broad usurptation of powers that I refer to him as King George the Incompetent on my blog, "What we know so far ..."

"and tell 'em Big Mitch sent ya!"; 8/23/06, 1:41 AM
Ann Althouse said...: bigmitch: "the defendants were making an argument that the president "has been granted the inherent power to violate....""

Except they weren't.

Sippican: You beat me to the "epitaph" wisecrack.

Thanks for the compliments!

Right winger? Did you notice that I don't take a position on whether the program is legal?

Palladian: Yeah, funny about the illustrator's name. It's an excellent illustration. I like it. Nice idea for an image, the gavel-microphone. I can't remember seeing it before; 8/23/06, 5:58 AM
KCFleming said...: Congratulations on a wonderful article. Well-argued, well-written, and sure to give fits to defenders of Judge Anna Diggs Taylor. (As I can see has already occurred above).

If these folks hate Bush's approach to war-time restrictions on liberty, how do they feel about Presidents Lincoln, Wilson, and Roosevelt? Do they read any history at all?; 8/23/06, 6:47 AM
goesh said...: -more akin to a Public Service announcement - greatly beneficial and clarifying for lay folks - thanks; 8/23/06, 7:11 AM
The Drill SGT said...: The RCP folks have you in their morning read

http://www.realclearpolitics.com/; 8/23/06, 7:19 AM
tjl said...: Ann -

We can judge how compelling is the logic of your op-ed piece by observing the demented responses of certain commenters. In particular, consider "Pete," who believes that quoting that legal scholar Helen Thomas actually helps his case.

Great work.

It's not surprising that the Petes of the world neither understand nor care how a judicial opinion is supposed to be crafted. It is surprising that Tribe has joined this group.; 8/23/06, 7:24 AM
Bruce Hayden said...: Extrodinarily well done, especially juxtaposed to Tribe's recent letter on this subject.

But I do suspect that it may start a firestorm of flaming, so you might want to keep comment moderation a couple of keystrokes away today.; 8/23/06, 7:48 AM
Vince Canzoneri said...: The following is a letter I just sent to The Times with respect to your op ed:

It is all the more important that judges earn the authority recognized in Marbury by rendering careful decisions, scrupulously derived from prior decisions, because presidential canons of constitutionality, susceptible as they are to change every four years, are necessarily written on water. By the very detachment from the electoral process that majoritarians bemoan, the judiciary provides the continuity without which succeeding administrations could be faced, as the one which takes office in 2009 may well be faced, with such choices as (i) honoring the post-Nurenburg principle that "following orders" is not a defense and (ii) leaving violations of our own War Crimes Act unpunished because perpetrators may have reasonably relied on a prior president's mistaken view of his own powers. When the judiciary produces shoddy work, it cedes authority to a branch of government that is dangerously incapable of providing the continuity upon which constitutional government and the rule of law depend.

A bit pompous ... but perhaps worth noting.; 8/23/06, 7:49 AM
Bruce Hayden said...: BigMitch,

Ann gave you a quick response to your suggestion that: 'Actually, the defendants were making an argument that the president "has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself."'

You have to some extent refuted your own statement, because if he has the power to do so under the Constition to implement the TSP, then by necessity, he is asserting that he is not violating the Constitution by doing so. The assertion is not that he is not bound by the 1st and 4th Amdt., but that they don't go that far, esp. in view of his Article II powers.

I should note that prior to this decsion, the consensus seemed to be that the plaintiffs claims for 1st Amdt. violations were unsuportable, and 4th Amdt. violations were weak, with the most likely violation being that of FISA, at which point the discussion would invariably devolve into a Separation of Powers discussion.; 8/23/06, 7:58 AM
Mojave Joe said...: You are so right, Ann! The President should be the law unto himself. After all, 'he has his advisers, and they’ve concluded that the program is legal.' Because there is the danger that a lesser than stellar judge might be the one reviewing his decision (and notwithstading that that judge will in turn be reviewed by three, possibly nine, others), I agree with the premise of your piece: the President's decision that the program is legal should be unreviewable. I agree with all of the other comments posted: you are absolutely right.; 8/23/06, 7:59 AM
KCFleming said...: Re: "the President's decision that the program is legal should be unreviewable"

Oh Mojave, you had me at "I don't know how to read."; 8/23/06, 8:09 AM
Ann Althouse said...: Mojave: You don't understand the piece. Read it again.

Henri: I voted for Gore.; 8/23/06, 8:13 AM
MadisonMan said...: Congratulations on a nice op-ed. This the most recent deadline, I'm guessing.; 8/23/06, 8:21 AM
Nittacci said...: Why are you so opposed to the President simply following the law and getting warrants for his eavesdropping? Isn't the little extra trouble the adminsistration has to go through worth the protections that warrants provide?

I just don't understand why so many of your ilk are in such a hurry to grant extra-constitutional powers to this president. It might not seem so unreasonable if the President wasn't a moron (or "idiot" as Joe Scarborough said).

I think most Americans just aren't convinced that the danger is so great that we have to throw out a perfectly good constitution that's been adequate until 2001.; 8/23/06, 8:47 AM
ad3pt said...: This comment has been removed by a blog administrator.; 8/23/06, 8:59 AM
ad3pt said...: This comment has been removed by a blog administrator.; 8/23/06, 9:00 AM
ad3pt said...: Your pithy commentary on a rather black and white issue is a pretty blatant slandering attempt to cloud the ruling which the people of the United States deserve. Not only was it dissappointing to read your pontification on the ramifications or circumstances surrounding the ruling, but your lack of execution with respect to directly citing anything but sparse references from the verbiage of the decision made your editorial borderline yellow. Our country, the greatest in the history of the human civilization, is such because of the freedoms guaranteed in the Constitution. Federal Judges are elected to uphold that. You and your Judicial Watch friends are a jeopardy to our country. We'd live in a plutocracy if you'd have it your way. The framers are turning over in their graves are you fools continue to marry the desecration of basic liberties in the Bill of Rights to security. And before you tout your fascism, for the record, I am a New Yorker, and I am a 9/11 survivor. So what the hell do you know about being attacked. Give me liberty or give me death.; 8/23/06, 9:01 AM
Bruce Hayden said...: ad3pt

I know that the NYT is a weighty newspaper, but they really do limit how much someone can say in this situation. Many us who read Ann's blog religiously have a pretty good idea of the details. She just most likely didn't have the room to expound - plus, too much detail would obscure her message (which is invariably my problem).; 8/23/06, 9:08 AM
KCFleming said...: Re: "Give me liberty or give me death."

If Judge Taylor's opinion holds on appeal, terrorists will be harder to track, and you'll get both.; 8/23/06, 9:11 AM
Mojave Joe said...: Well, I did read it again. And yes, it is ironic (a smidgen) that a judge who claims to be upholding the rule of law writes a decision that is a poor example of . . . upholding the rule of law. But what of that? At least she wrote something that is reviewable (unlike, say, the great Decider's decisions? After all, but for some reporters who would know about the program?). I guess I would have welcomed a more substantive critique of the decision, rather than another line in Alanis Morisette's "Isn't it Ironic?"

Speaking of poor examples, my previous posted comment is one. I was trying to poke fun at the breathless blogger groupyism that especially irritated me this a.m. I did not do a good job of it. (Pogo's criticism of it was better than the post itself.); 8/23/06, 9:16 AM
Mojave Joe said...: This comment has been removed by a blog administrator.; 8/23/06, 9:18 AM
Fritz said...: Ann,
This ruling is really about protest of authority. Leftists have interpreted civil liberties as an absolute protection for any behavior. While we will all agree, protecting citizens from State powers to incarcerate citizens engaged in political discourse is necessary, the State must have some leeway to protect said citizens from true criminal behavior. It is an important balance. The Rehnquist Court had certainly recognized the interests of good citizens over the minor technical failures of police enforcement. Our civil liberty protections are for participation in our democracy, not plotters wanting to destroy that democracy. Christopher Hitchens need to know what plotters are thinking, takes a back-seat to his fellow citizens need to thwart the plotters schemes.; 8/23/06, 9:36 AM
sparky said...: Congratulations on your piece and its placement.

I have a comment about a portion of it; not the thrust of it but rather a particular portion:
“He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.
It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president.”

So far as I know, while the administration has had recourse to the court of public opinion, it has not actually made that argument in a court. Instead, the government has relied on the state secret privilege and has, at least so far as I am aware, avoided having to litigate precisely that argument. Unlike criticism of the standing discussion, (which was briefed) it seems precipitous (to me, at least) to suggest that judges might (or could) fail to take seriously an argument that the government has apparently chosen not to litigate.

If I’m wrong about the facts, I would greatly appreciate it if someone could point me to a case. Thanks.; 8/23/06, 9:44 AM
altoids1306 said...: You should have a regular column!; 8/23/06, 10:02 AM
joaquín said...: Yes, applaud the tyrant and defend him from the American Justice system. Traitor.; 8/23/06, 10:24 AM
The Frito Pundito said...: You keep saying "reread the op-ed" as if there is some magnificent truth in there that that the ignorant masses somehow missed. I have read it three times and no subsequent reading added anything to my impression (not very favorable) from the first reading. Simply repeating "reread it stupid" is not a response and it reveals your extreme arrogance and presumption of superiority.; 8/23/06, 10:27 AM
Bruce Hayden said...: Scott Wright

There has been a lot of discussion about the procedural angle over at volokh.com. The general consensus of the (mostly anti-TSP) crowd there is that the government may have screwed up by not briefing on the merits, but rather sticking to the position that the State Secret privilege doctrine prevented a hearing on the merits, and so they apparently didn't brief on them. My suggestion is that given your profession, you may come to your own opinion by using Pacer.

But keep in mind a couple of things. This isn't a normal case. It is being appealed, and if the 6th Circuit affirms (which I find unlikely), it will be heard very quickly by the Supreme Court - because this decision, most of which is seemingly devoid of legal analysis, imposes an injunction that would presumably shut down an ongoing intelligence operation deemed important to our national security by the Administration during a time of war.; 8/23/06, 10:42 AM
lefty said...: So you write about judicial activism, and in so doing, suggest that Marbury v. Madison, a 203 year old legal precedent upon which pretty much every single legal principle we lawyers operate under is based, should be questioned.

You really need to reread that definition of irony, Ms. Althouse.

BTW, as a piece of legal analysis, your op-ed rates about a C-. Nice stylings, but not a single piece of substance to it. Buzzwords, critiques without evidence, conclusions without bases.

Finally, while we're talking about appropriate judicial behavior, one thing judges do is decide the issues presented to them. The Bush Justice Department didn't present the constitutional arguments you castigate the judge for not addressing, because DOJ apparently didn't want to concede that the court had the power to hear the case.

Bedrock principle of law, Ann: courts decide arguments presented to them. Now that you know your op-ed was based on a complete failure to actually look at the briefs, ya think maybe you could try again? Maybe we can get that C- up to a B with another stab at it. Not holding my breath, though.; 8/23/06, 10:43 AM
Brian Doyle said...: David -

You should say what you mean more clearly:

"Because there are terrorists trying to kill us, we must grant the President the authority to secretly violate federal laws."

This would still be very wrong and just the kind of thing the founding fathers had nightmares about, but at least it would be straightforward.; 8/23/06, 10:45 AM
Ken Ashford said...: In your piece, you write:

"And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously."

I seriously wonder if you read the defendants' briefs. Their argument consisted almost entirely of the whole "state secrets" issue, and they made almost NO argument with respect to the substantive constitutional issues.

How can Judge Taylor be faulted for not addresseding the government's "serious argument", when the government itself refused to make an argument?; 8/23/06, 10:45 AM
Bruce Hayden said...: pseudonymous in NC

Even assumming that you are correct about the government screwing up the procedural end of things, which I don't, what you miss is that this case isn't about whether this corporation owes that corporation that amount of money. This case is about whether or not the Administration can continue an intelligence gathering operation that it deems important to our national security in a time of war. American lives are at stake here, and that is a serious matter. The judge didn't appear to take it as seriously as I, and I think Ann, think that she should have.; 8/23/06, 10:49 AM
Christopher R Taylor said...: Why are you so opposed to the President simply following the law and getting warrants for his eavesdropping? Isn't the little extra trouble the adminsistration has to go through worth the protections that warrants provide?

No one is opposed to intelligence ops needing a warrant for wiretapping (the President doesn't do any of this work personally). We're opposed to - in contradiction to all settled law and previous decisions - them being required to do so for every single time.

As the FISA court and even Jamie Gorelick noted in 1994 (when defending the Clinton Administration's doing so) understood, sometimes there is not time to get a warrant, sometimes a warrant exposes names and sources too broadly for security.

The FISA is the court designed by congress to decide these issues, why is their word as a body of judges specifically designed to examine the issue not sufficient?

Why is the word "unreasonble" in the 4th amendment so difficult to remember for so many people?

Because your purpose is not justice and a desire for constitutional behavior, it is for President Bush to be punished for daring to be both socially conservative and elected.; 8/23/06, 10:52 AM
KCFleming said...: Re: "It's only activism when the judge fails to favor of war, privilege or wealth."

"[J]udges are, or ought to be, of a reserved or and retired character, and wholly unconnected with the political world."
E. Burke, cf "Speech on the Economical Reform, 1780

Taylor fails here, engaging in judicial usurpation of power, endeavoring to engage in an innovative alteration of the Constitution, and yet so arrogant as to reject even a nod at substance in her decision. Says Taylor, "...because I said so."

It's activism when a judge tries to do anything but conserve.; 8/23/06, 10:54 AM
Brian Doyle said...: RogerA -

Excellent point! Because civil liberties have been suspended previously, there must not be anything wrong with illegal surveillance!; 8/23/06, 10:54 AM
SippicanCottage said...: This comment has been removed by the author.; 8/23/06, 11:08 AM
Ann Althouse said...: To the commentator who wanted a more detailed discussion of the legal issues, with citations, etc.: There's a word limit on the op-ed page you know! You try writing 900 words with detailed discussion of legal doctrine and making it readable and interesting.; 8/23/06, 11:09 AM
Laura Reynolds said...: People popping in to comment on Prof Althouse's column would do well to stick to what they can see from that work. By jumping into arguements that those of us who been around here for a while have discussed many times and at great depth, they just come across as myopic and shallow.

I'm not really impressed by your language and education if you can so easily miss a point.; 8/23/06, 11:10 AM
Anonymous said...: Excellent op-ed, Ann. I'm not an attorney, but the prose was sparkling as well as cogent.

I'm glad you are getting a few legal arguments here, in addition to those of Helen Thomas, gay marriage, 'traitor' variety.; 8/23/06, 11:14 AM
Brian Doyle said...: SteveR - Believe it or not, this is not the sole forum in which people have been discussing the NSA wiretapping issue.

RogerA -

You said: "When the three branches of goverment might be at loggerheads, then political solutions become relevant."

I would put it differently:

"When the Executive branch claims the power to violate laws passed by the Legislative branch and itself, Judicial remedies become necessary."; 8/23/06, 11:23 AM
Icepick said...: Sippican, it could have been worse. They could have been Curly Joe fans.; 8/23/06, 12:04 PM
Bruce Hayden said...: Ann,

Hope you don't mind, but I copied your point about the 900 word limitation over to the volokh.com thread, with proper attribution, of course.; 8/23/06, 12:05 PM
Stephen said...: Tip to any commenter:

If you have to exaggerate the other side's position to attack it, it's usually a sign you're on the wrong side of the argument.

- Bush hasn’t yet said he can do whatever he wants (though I’m awaiting that case).

- Bush does not likely think he actually inherited the Presidency from his father

- Many people attacking the debate are saying the Presidents actions were legal and constitutional (I’d assume that one was obvious, but when the debate devolves down to “why are you defending Bush’s desire to break the constitution,” I’m not so sure).

- Bush is not a tyrant. I thought about elaborating on this one, but then decided-screw it, as far as you know I’m a federal judge (in addition to my day job as a cardiovascular surgeon)-so don’t question me.

- If Bush didn’t care about legal rulings, why would he even appeal the judge’s decision? Why would he even argue it? Why not just go ahead and do it anyway?

- If I don’t argue that it is unconstitutional to sentence me to 50 years in prison for jaywalking, that does not give a judge the right to declare it’s constitutional on the grounds I didn’t argue against it. Judges aren’t limited to the briefs in making their decisions. (I figured that one would be obvious by now too, especially to people arguing on the left, but I guess not); 8/23/06, 12:09 PM
BigMitch said...: The professor makes a good point when she refutes my statement that “the defendants were making an argument that the president 'has been granted the inherent power to violate....'” And Bruce Hayden makes a more extensive riposte to my comment, in which he points to a logical fallacy in my argument, viz., “You have to some extent refuted your own statement, because if he has the power to do so under the Constitution to implement the TSP, then by necessity, he is asserting that he is not violating the Constitution by doing so. The assertion is not that he is not bound by the 1st and 4th Amdt., but that they don't go that far, esp. in view of his Article II powers.”

Notwithstanding these points, I stand by my original post.

I concede the point that the President uses language that suggests that his power in this regard is derived from the Constitution. However, his argument, at least as presented in Alberto Gonzales 44-page defense of the program, transmitted in a letter to Senate Majority Leader Bill Frist is essentially this:

“The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility.”

It seems to me that he is saying that the powers necessary for the TSP (the domestic spying program) are inherent in the office of the President.

As I pointed out here, it ain’t necessarily so.

Article 1 § 8 of the Constitution states:
“The Congress shall have Power To … provide for the common Defence and general Welfare of the United States; …
• To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces;
• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; … And
• To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

From the foregoing, one could conclude that the responsibility for protecting America from attack is really Congress’s. The President has a role to play, to be sure. He shall faithfully execute the laws that Congress passes.

One of the arguments used to support the President is that he has a constitutional duty based upon his oath of office:--“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” (Ironically, this is similar to the oath of office that many judges have taken, in its commitment to preserve, protect and defend.)

From the foregoing, I respectfully suggest to you, Professor and Mr. Hayden, that the President is, indeed, arguing that the powers he claims are inherent in his office. You may criticize Judge Taylor for being too clever by half in her mingling of the word “inherent” with “inherited,” but her basic point is well-taken, namely, that President Bush acts as if the power of the presidency is the same as the power of a sovereign such as King George III, against whom the patriots rebelled in 1776.

"and tell 'em Big Mitch sent ya!"; 8/23/06, 12:10 PM
Laura Reynolds said...: Doyle said...
SteveR - Believe it or not, this is not the sole forum in which people have been discussing the NSA wiretapping issue.

Doyle - Believe it or not, you missed another easy point.; 8/23/06, 12:19 PM
John I said...: David says "We are at war with an implacable enemy that wishes the destruction of our way of life."

I agree 100% - this administration has trumped up what ought to be a law enforcement action against a small group of fringe wackos into an existential threat. And by doing so, has actually fomented a whole lot more global resentment, while chipped away at the freedoms and checks and balances he claims are hated and despised by "terrorists" The mind reels.

There are perfectly reasonable lawful ways to keep this relatively minor nuisance in check that don't involve infringing on fairly well established constitutional law.; 8/23/06, 12:23 PM
SippicanCottage said...: Icepick- I would have said Curly-Joe DeRita, but that would have been plain mean, however accurate.; 8/23/06, 12:26 PM
Faithful Progressive said...: AA:

Congrats on the piece, but it's not your best work.

The Justice/ Mr. Chief Justice thing is a bit of a cheap shot.

The question-- "Why should the judicial view prevail over the president’s?" Is just silly and sophomoric.

The idea that judicial precedent is just "the verbiage that normally cushions us from... suspicions" is cynical beyond belief. I don't think most judges of any quality try to decide things first (based upon their own prejudice or politics) and then cover it up with precedent. Most, thank God, sincerely try to consider the law and facts and consider where it leads them.

This decision was weak--but so was the BS case put on by the Administration.

I find it ironic that your own take on the decision is also so--well-slight.

Best Regards,
FP; 8/23/06, 12:34 PM
tjl said...: Judicial power depends on public confidence that a decision is a reasoned interpretation and application of the law, not an expression of the judge's personal agenda. Judge Taylor's opinion in large part reads as if its real basis is the judge's personal hatred of Bush. This undermines the credibility of the result. Opponents of the wiretap program should be the sharpest critics of Judge Taylor because she fails her duty of showing why her decision is the right one under the law.

Many of the comments attacking Ann's op-ed give me the sinking feeling that reading comprehension skills are vanishing from the population.; 8/23/06, 12:41 PM
Ruth Anne Adams said...: Crisp!; 8/23/06, 12:46 PM
Bruce Hayden said...: Taylor's decision is not the law of the land, but rather of one judicial district in this country. And my reading of Ann's article is not that she is denying Marbury v. Madison, but rather, is asking about the basis of the power. Marbury is not power itself, but is rather merely a 203 year old decision. The Supreme Court in that decision asserted its supremacy to decide the meaning of statutes and the Constitution for the other two branches. But its power comes from our acceptance of that assertion, and I think Ann was suggesting that Judge Taylor's decision calls that into question at least a little bit.; 8/23/06, 12:48 PM
Bruce Hayden said...: Disgustipated

Is there anywhere to get all the briefs, except for Pacer? If not, I will spend the money this afternoon and post them on my website. But I have to believe that someone would already have done so by now.; 8/23/06, 12:50 PM
David Walser said...: What Big Mitch, et al, are missing is that the President is not making the claim that he has the authority to ignore the law. He's making two compatible arguments. The first is that the TSP does NOT violate FISA. While many find this hard to believe, a careful reading of the law yields the conclusion that this argument is plausible (as distinguished from probable). If an intercept takes place outside the US, FISA does NOT require a warrant unless a US person is the target of the intercept. It is possible that the program is structured such that the intercepts are taking place outside the country and that US persons are not the target of the intercepts. If that is the case, FISA is not being violated. Of course, since many believe that the President is a liar, how can we know that FISA is not being violated? We can't, but we can know that a good faith determination has reached that the TSP is lawful. Consider: per the NYT(!), teams of NSA, DOD, and DOJ staff(!) attorneys have reviewed the program (and are constantly rereviewing it) and have determined it does not violate FISA. (In addition, the White House Counsel's office has reviewed the program and reached the same conclusion.) Again, from press reports, the program was suspended for a brief period when a senior Justice Department official raised questions about the program's legality. (The official was temporarily serving in place of an official who was on leave.) The program was resumed, but only after these legal concerns were resolved. That speaks loudly that those who know the program best believe it to be legal.

The second argument that is being made is that FISA cannot prevent the President from doing something mandated by the Constitution. (In fairness, this argument is being made more by supporters of the President than by the Administration.) This is not an argument that the President is above the law. It's an argument that the Congress is not above the President. That is, the Congress cannot unreasonably interfere with the President carrying out his duties under the Constitution any more than the Administration can unreasonably intrude in the legislative process. However, because the President's advisors believe FISA is not being violated, the Administration is not pushing this argument.; 8/23/06, 1:05 PM
KCFleming said...: Re: Disgustipated's comment "However, given that I find it utterly distasteful to make such assertion with only an incomplete (or absent) understanding of the determinative issues involved ...please allow me to ask very simply"

I'll answer.
Yes, this sort of snarky smart-assiness makes you look like an insufferable fool.
As do any comments ending in "????"

Did I read it? But what difference could it make what I think of it, even if I had?
Smarter people than I have mocked it. That's enough for me. You can hope the rest are cowed by Taylor's condescensions.; 8/23/06, 1:07 PM
Anonymous said...: "If you have to exaggerate the other side's position to attack it, it's usually a sign you're on the wrong side of the argument."

So true, Stephen. The gist of the argument against spying by our government seems to be that said government, unlike every other on the planet, is not entitled to spy--unless they receive permission personally from a wise, civil rights oriented judge.

Of course this judge will be mightily overburdened with applications for warrants, practically ending our ability to spy at all.; 8/23/06, 1:26 PM
Fritz said...: Is the FISA Act even Constitutional? If the President has plenary Commander in Chief powers to protect by land and sea, why because the methods to garner safe harbor have changed should his powers be reduced, restricted? Electronic entry into the US is a different method, but none the less, foreign entry.; 8/23/06, 1:33 PM
KCFleming said...: Re: "in search of informed dialogue"

Good luck, Disgustipated.

And remember, just posting once is usually sufficient, especially for people smarter than me.; 8/23/06, 1:35 PM
Bruce Hayden said...: Disgustipated

Thanks for the link. I do see that the judge did not address many of the governments arguments there. I read most of it, but the 4th Amdt. portion in particular, and I seemed to see a lot of issues brought up there that were not even addressed by judge Taylor.

Indeed, how can she determine whether the "searches" were reasonble, as required by the 4th Amdt., or weren't subject to a warrant, without recourse to material protected by the State Secrets Doctrine? Hard to fathom. So thanks.

I will be making all of the stuff available later today as you have to dig through all the other ACLU stuff and look at irrelevant stuff in order to get what they have there that is relevant (obviously, they are missing a lot of the government's side of the issue, making up for it with Amici briefs from almost everyone you could think of).; 8/23/06, 1:58 PM
hdhouse said...: We have a saying in advertising about not "hanging the mona lisa on the outhouse wall". The opposite is also true. Fingerpainting, with minor exceptions, does not hang at the Met".

Ann's OpEd is not at all clear and is, by in large, very poorly written and not at all clearly expressed. It is, by any standard, a syntaxical blunderbuss.

If this is the clarity of expression on a subject that would/should be a forte, God save the Queen and her miserable students in con-law.; 8/23/06, 1:58 PM
JorgXMcKie said...: Boy, if there were an Olympic event in point-missing, quite a few of the new commenters here would be in competition for medal status.

If you have to totally miss the point to make your argument, what does that say about the strength of your argument?

Sheesh.; 8/23/06, 2:17 PM
SippicanCottage said...: We have a saying in woodworking for people who think the word "syntaxical" is, well... a word.

The saying goes: Get busy. We wanna see nothing but a**holes and elbows. But you've got no arms.; 8/23/06, 2:23 PM
Synova said...: Having read the op-ed but not the comments here -

One of my very favorite science fiction authors has one of her characters say that government is a "consensus fiction." That really stuck with me and this op-ed reminded me of it. We *pretend* our government into existence. The Consitution matters because we agree that it matters. We behave as though it matters. Because of that, it does.

In one of my sci-fi created worlds a woman making a government from scratch sets herself as ruler *but* she sets another as hereditary *justice*. And they "pretend" the new rules into existance. The justice by acting like the ruler is legitimate and the ruler by bowing to the judgement of the justice. By modeling subordination to each other in specific areas, and to themselves generally, they set it up so there is an "outside" declaration of legitimacy, for the ruler and for the law. The goal is to convince people that the subordination of one "branch" to the other is *real* by actually displaying subordination... though there is nothing real enforcing it. And that the rules are real because both of them follow the rules they make.

This is what I read in Ann's op-ed. It doesn't make sense to insist that the exectutive bow to the law if the law isn't upholding its side of the bargain. Our government wasn't set up with the judicial branch in ascendance over the executive and legistlative branches. There are constraints put on the judicial branch. Following those rules, those restraints, is what testifies to the legitimacy of judgements that are made. It's the moral standing to insist that the *other* branch do the same.

Taking one branch to task over limits of power while not conforming to the traditional restraints of your own branch is claiming something matters while demonstrating that it *doesn't*.; 8/23/06, 2:46 PM
Synova said...: This comment has been removed by a blog administrator.; 8/23/06, 2:47 PM
Brian Doyle said...: Ms. Althouse appears to be flying blind...

http://glenngreenwald.blogspot.com/2006/08/ann-althouse-nyt-legal-expert-on-case.html; 8/23/06, 2:55 PM
hdhouse said...: Some of the retorts are singularly amusing. If being an attorney is such a rarified endeavor, why are there a gazillion of them?

Why is there such a knee-jerk (emphasis on the later) reaction(ary) response to anyone who rains on the trample the civil rights parade.

The government's brief was a joke as has been so much of the current (il)logic pumped out of the justice department.

And by the way the appelate court will look at the entire matter with fresh eyes. The administration's position is akin to a child's grab for toys. Anything that isn't labeled belongs to the bullykid. Anything that is labeled is merely an inconvenience but I can't tell you whay "cause its a secret".

Althouse, party of one, sit right over there at the logic table, stare into the corner and don't think about the big white bear.; 8/23/06, 3:04 PM
Chris W. Martinez said...: I see that Ms. Althouse has tried to soften her grossly false suggestion in the Op-Ed that the President is his own judge this matter, by essentially saying instead that the courts may indeed decide such issues, but only where they remain sufficiently dispassionate and verbose as to assuage the feelings of those who would disagree.

Not only is this in apparent disregard to the striking clarity of the illegality of the NSA program, but it also seems to gloss over the writings of a particularly cherished jurist of the conservative movement.

For instance, Justice Scalia offered these highly nuanced, dispassionate words in the Brown v. Legal Foundation of Washington case, showing clearly the standard of neutrality and distance Judge Taylor failed to meet:

Surely it cannot be that the Justices look more favorably upon a nationally emulated uncompensated taking of clients' funds to support (hurrah!) legal services to the indigent....

***

Perhaps we are witnessing today the emergence of a whole new concept in Compensation Clause jurisprudence: the Robin Hood Taking, in which the government's extraction of wealth from those who own it is so cleverly achieved, and the object of the government's larcenous beneficence is so highly favored by the courts (taking from the rich to give to indigent defendants) that the normal rules of the Constitution protecting private property are suspended.

Tsk tsk, Judge Taylor.; 8/23/06, 3:06 PM
KCFleming said...: Glenn Greenwald is soooo cute when he gets all jealous and junk. You could just pinch him.; 8/23/06, 3:08 PM
Brian Doyle said...: Greenwald is angry, as we should all be.

If you reject the notion that we forfeited our system of government on 9/11, anger is the appropriate response to what has transpired here.

Bush and his various apologists, including Ms. Althouse, will be judged harshly by history (and the 6th Circuit). Glenn is just off to an early start.; 8/23/06, 3:16 PM
LoafingOaf said...: This is one of those Op-Eds Ann spits out in just 3 hours at a coffeeshop with all kinds of distractions around her? Impressive. It's very well written, and worth printing out to pass around. When you consider the wide range of subjects Althouse writes about on her blog, I'm surprised the NY Times doesn't make her a weekly columnist.; 8/23/06, 3:38 PM
Brian Doyle said...: I see Ann was made "Wanker of the Day" by Atrios.

Huzzah!; 8/23/06, 3:42 PM
Brian Doyle said...: Good one Mike!

He's also right.; 8/23/06, 3:44 PM
Stephen said...: "If you reject the notion that we forfeited our system of government on 9/11, anger is the appropriate response to what has transpired here."

This is easy to do both ways-

From the right

"If you reject the notion that we forfeited our right to self-defense on 9/11, anger is the appropriate response to what has transpired here."

Commenters,

It's possible there is a fixed quota of positions you'll all attack vs. stuff we've actually advocated, but would it be possible to lower it to 50:1?; 8/23/06, 3:47 PM
Brian Doyle said...: I realize Ms. Althouse is not a Malkin-style wingnut.

While this is very much to her credit, it makes her doubly dangerous because when the NYT publishes her it lends a certain patina of respectability to the view that Judge Taylor's opinion deserves more scorn than praise.

"Apologist" in its original sense just means "defender," and I do think that would apply in this case, if only by the very loose definition of attacking the legal reasoning of the decision that went against the DoJ.; 8/23/06, 4:11 PM
Peter Hoh said...: Ann, good job. Concise and witty.

If only your critics were able to employ those same skills, then the slog through the 160 comments would have been more enjoyable.; 8/23/06, 4:12 PM
Peter Hoh said...: Wait a second, Doyle. Ann is dangerous because she's not a nut? We should be wary of her argument because it is sound?

There's no pleasing you, is there?; 8/23/06, 4:18 PM
SmedleyUnderfoot said...: RogerA: Jackson was a nut-case and Lincoln's suspension of habeous corpus was ratified after the fact by Congress. Neither instance is viewed as stellar examples of the US Government in action.

Bruce Hayden writes:
"This case is about whether or not the Administration can continue an intelligence gathering operation that it deems important to our national security in a time of war."

I disagree. This case is about whether the President has the power to ignore VERY specific Congressional legislation, and very specific restrictions on search and seizure in the 4th A to the Constitution, and whether he can hide behind the state secrets privilege to do so. Congress in FISA was clear as to the process when conducting electronic surviellance in these situations. The President had two choices: follow the law or go to Congress to get it changed. He did neither.

"American lives are at stake here, and that is a serious matter. The judge didn't appear to take it as seriously as I, and I think Ann, think that she should have."

The liberty of US citizens as SPECIFICALLY GUARANTEED BY THE US CONSTITUTION (please, read the 4th A) is also at stake. CHIEF Justice Burger's quote (by the way, originally from HOME BUILDING & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934)) says, in essence, it is wrong destroy the Constitution in order to protect it.

The Constitution is a burden to the Executive, (as pointed out in Judge Taylor's opinion) that is a given. Does this President, Professor Althouse, and all of you coming down on the side of her and this administration mean to suggest that we, as a nation are unwilling to shoulder that burden? Or, when necessary to accept the risks that burden creates? If the Constitution says that EVERY search requires probable cause and a warrant, then EVERY search requires probable cause and a warrant.

Congress has provided a mechanism to accomplish that requirement in a way that provides reasonable flexibility. Is the process not going fast enough? Get more Agents, get more Laywers, get more Judges, make the process go faster.

Still not happy? Go back to Congress and have them change the law.

What the President is not allowed to do is step around the constitution and the law on his own. Only a King can do that.

Christopher Taylor said...
"Why is the word "unreasonble" in the 4th amendment so difficult to remember for so many people?"

It's not difficult, just irrelevant. The US SCt decided in Katz, 389 U.S. 347 (susequently codified) that wiretapping (and by later precedent electronic surveilance) were unreasonable search and seizure. If the President wishes to change that precedent he can argue that it should be changed (actually his lawyers, the picture of Bush arguing to the SCt...). Neither he nor the District Judge can change it on their own, however.

dick: Basically you've restated the standing argument. The President has admitted that the TSP exists and that it targets the types of people the plantiffs communicate with in the course of their work. What the DC decided is that it is not whether these individuals have actually had their phone conversations tapped that is at issue. The defendants have been harmed and seek redress based on the fact that the existence of the program has caused them harm - their sources and clients won't talk to them.

This is honestly the biggest stretch of the opinion - how do you get from that to the defendant's 4th A rights? It's probably why the Judge, somewhat incongruously dragged in the 1st A as well.

There's something to be said for: harm done - program illegal - remedy alleviates harm. However, most of the time the law requires a causual connection throughout.

Kirk Parker: the opinion (and much of the supposedly evil "liberal media" have noted) the President had every opportunity to go back to Congress to change the statute. The USA PATRIOT act was passed in what? A month? TSP has been going for 5 years, plenty of time to change the FISA.

Ace writes:
"Your lack of knowledge about this issue is offensive."

Hmmm, where to start...

Lets start with the quote following. You've attributed it to, Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). Well, the language you quote doesn't appear there. It must be a paraphase from another source. A brief search turned up no federal case that used that language, so you've provided us with, as far as I can tell, a bogus quote.

Secondly, you've quoted dicta from a US Ct of Appeals case. Hardly controlling even in the DC Circuit, much less in MI.

Personally, I find the misquote and misapplication of precedent offensive.

General conclusion: I find little of what Professor Althouse complains of in Judge Taylor's opinion. In fact, given that she was faced with a largely unresponsive Defendant, her opinion is quite balanced, and certainly supported by her citations (the problem of ommission is admittedly beyond my knowledge of con law).

The opinion makes a difficult choice in not bringing in the concept of due process, you could fault it for that, but you can also see the 4th A as self-executing in a sense.

The "no kings" buzzquote has been taken badly out of context by the media, including Professor Althouse. Read the opinion, it's a statement of fact, not an allegation.

I assume the Professor means the lead question to be ironic.; 8/23/06, 4:35 PM
Brent said...: Oh Doyle, Doyle, Doyle (long, sad sigh . . . .),

It is you, my friend who will be found on the wrong side of history. You will stand alongside all of your comrades defending a piece of legal shinola that can't withstand legal scrutiny just because it comes to the conclusion that you want.

Tsk, Tsk, Tsk (head shaking slowly).

Lincoln was mightily scorned by most of the country - "Why do we have to fight . . . Sure the slave thing is bad, but we weren't threatened by those slave states . . . So Lincoln just thinks that he can run the War however he pleases . . ." - but your ideological forbears that hated him were certainly proved wrong by history.

George W. may not be your cup of tea, but history will ultimately prove his take on change in the Middle East to be well worth the cost, and it will also prove you and your ideological descendants to be great stumbling blocks to societal progress.

Dude, I've got your bumper sticker:
Freedom for me, but not for thee; 8/23/06, 4:42 PM
SmedleyUnderfoot said...: Brent writes:
"George W. may not be your cup of tea, but history will ultimately prove his take on change in the Middle East to be well worth the cost, and it will also prove you and your ideological descendants to be great stumbling blocks to societal progress."

Rationalization by constructs which cannot be disproved are a sign of psychopathy; 8/23/06, 4:50 PM
vnjagvet said...: I wish I had gotten into this a bit earlier. My daily Althouse check was a little late today.

It looks like the Op-Ed has drawn a few irritated commentators whose zeal outstrips their legal acumen.

Blaming the Government's inadequate briefs for Judge Diggs Taylor's inadequate opinion is illogical. After all, the Government lost.

Normally, in my experience, the victor's brief provides the Court with enough ammunition to write an adequate opinion, especially at the Summary Judgment stage.

Whatever deficiencies there are in the basics of the opinion come may have come directly from the ACLU's brief. That would not bode well for their chances on appeal.

If I were representing the ACLU, I would be concerned about two procedural issues that have yet to be addressed substantively in the comments here and in Orin Kerr's post. The first is standing, and the second is the availability of injunctive relief under either FISA or the Administrative Procedure Act.

FISA, by its terms, provides specifically for civil suits for monetary liability, but not for equitable relief for its violations.

The APA provides for equitable relief, but only to enjoin specifically defined "agency action" which may violate the law. It is not at all clear that NSA surveillance is such "agency action".

The Diggs Taylor opinion sheds little light on those issues.; 8/23/06, 4:50 PM
Revenant said...: I thought the article was well-written and well-considered.

Too many people fail to understand that the branches of government, and the balance of powers between them, rely on mutual respect. The judicial branch is not superior to the other two branches in all matters; its powers are also limited, and it has a duty to justify their use rather than to exercise them dictatorially.; 8/23/06, 4:52 PM
Brent said...: I seemed to be missing the part of the comment conversation where those defending the ever-so-eloquent Judge Taylor mentioned her conflict of interest, she being a shill for and director of major donors to the ACLU (who of, course was a plaintiff in the case being discussed).; 8/23/06, 4:53 PM
Brent said...: Oh Smedly . . .

Rationalization by constructs which cannot be disproved are a sign of psychopathy

Actually they are a sign of free speech, something you certainly would have preferred that Iraqi citizens and others in the Middle East never have.

Sorry about your condition . . .; 8/23/06, 5:07 PM
SmedleyUnderfoot said...: Brent said...
"I seemed to be missing the part of the comment conversation where those defending the ever-so-eloquent Judge Taylor mentioned her conflict of interest, she being a shill for and director of major donors to the ACLU (who of, course was a plaintiff in the case being discussed)."

Precedent and hierarchy can be seen to reign in the area of conflict of interest as well. Judge Taylor's involvement in an organization supportive of the ACLU easily fits within the standards of conduct advocated by Justice Scalia with regard to recusal.; 8/23/06, 5:12 PM
Brent said...: Smedly, old friend,

Are you saying that you are comfortable with "the standards of conduct advocated by Justice Scalia with regard to recusal."?

Personally, I admire Justice Scalia greatly. I have met him and had a short time of conversation with him. Nonetheless, I was still uncomfortable with his not recusing himself from the case involving the Vice President, as I am today uncomfortable with Judge Taylor not recusing herself from a case involving the ACLU.; 8/23/06, 5:20 PM
Synova said...: "The Constitution is a burden to the Executive, (as pointed out in Judge Taylor's opinion) that is a given."

But it's not a burden for anyone else? If a judge is going to insist that the executive carefully follow the rules, shouldn't the judge carefully follow the rules? Or is it enough that the judge comes to the right conclusion?

If that's the case, shouldn't the end results (catching terrorists) be enough for the executive?

If the President has to follow the rules *even if* it means bad stuff happens because it's *important*. Then the judicial branch needs to follow the rules even if it means the President gets away with something. Because the rules and following them are important because the process of following them makes possible the system that we have that provides an *overall* protection for our individual rights.

"If the Constitution says that EVERY search requires probable cause and a warrant, then EVERY search requires probable cause and a warrant."

But it doesn't say that.; 8/23/06, 5:32 PM
SmedleyUnderfoot said...: Brent said...
"Actually they are a sign of free speech, something you certainly would have preferred that Iraqi citizens and others in the Middle East never have."

Your statement is absurd given the fact that I'm writing here in part in defense of the 4th and 1st amendments to the Constitution...

I've not said anything regading the CURRENTLY professed ends of our little adventure in Iraq (funny how many times the reason we went there has changed, I thought this President wasn't into nation building). The ends expressed are ludable, and hard to disagree with, which may be why the adminstration is expressing them. I question that what we're being told now is the real reason we got into Iraq (not an unreasonable question given what we were told before), or the real reason we're staying there.

I do very much question the MEANS of achiving those ends. The Iraqi invasion was of dubious necessity.

It's been pretty well proven if not admitted that we didn't need to go there to remove WMDs. If we THOUGHT we needed to remove WMDs, thought so in the face of information that said there were none (like every report provided by the UN inspectors), and still persisted in the belief, then well we're idiots. If we were manipulated into that belief then were bigger idiots. If we still believe...

Given the problem of the suffering of the Iraqi people under Hussein, or the lack of Democracy in the Middle East (both conditions that had persisted for at least 25 years) as justifications for the invasion of Iraq in 2002, would we have gone? Doubtful. We would have found another way.

By the way, we're rapidly approching VJ Day: sometime late this year we will have been in Iraq for as long as it took us to win WWII.; 8/23/06, 5:38 PM
Ann Althouse said...: Doyle: Thanks for acknowledging that I'm "dangerous." I'm dangerous precisely because I'm rational, educated, and nonpartisan. It's pretty scary, isn't it? Look out. But really, what you should worry about is the way YOU don't know how to talk to people like me. I intend to keep calling you on it... in prose sharply honed to the point where you whine it's unfair.; 8/23/06, 5:45 PM
SmedleyUnderfoot said...: Synova said...
"But it's not a burden for anyone else? If a judge is going to insist that the executive carefully follow the rules, shouldn't the judge carefully follow the rules? Or is it enough that the judge comes to the right conclusion?"

I don't disagree with your statement. I do disagree that it applies to Judge Taylor's opinion.

The Professor has asserted that the Judge was in error, but wrote little to substantiate that assertion, certainly nothing that qualifies as a legal argument. I read the same opinion and came away with a different conclusion. In my eyes, the Judge supported her conclusion using relevant precedent.

"If the President has to follow the rules *even if* it means bad stuff happens because it's *important*. Then the judicial branch needs to follow the rules even if it means the President gets away with something. Because the rules and following them are important because the process of following them makes possible the system that we have that provides an *overall* protection for our individual rights."

Judge Taylor considered the Gov't's argument that the state secrets privilege prevented the court from considering the case and in fact dismissed part of the suit on that basis. She also concluded however that enough information had already been divulged by the administration to allow the remaining part of the suit to go forward.

"If the Constitution says that EVERY search requires probable cause and a warrant, then EVERY search requires probable cause and a warrant."

"But it doesn't say that."

You have another way of reading:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized?; 8/23/06, 5:53 PM
John Stodder said...: Ann, your op-ed was great and very educational. But: I've noticed that many of your foes have quoted you as follows. Note where they cut off the quote:

"The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

"It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?"

And then at that point, your critics pretend to lecture you, you poor benighted "Bushco" supporter about Marbury v. Madison and separation of powers -- not seeing, or not wanting to see the question that closes this passage as rhetorical.

Your point, which they miss, is that the judicial view can and does "prevail," but only under carefully circumscribed rules, not just because a judge is more important than a president. But you're being interpreted out there as favoring "the unitary executive," with your op-ed, based on this quote.

Thought I'd point it out b/c is demonstrates how a normal practice of the blogosphere, cutting and pasting passages from a larger piece, can lead to deliberate or inadvertent distortions.; 8/23/06, 5:57 PM
Brent said...: Smed, old boy,

It is a given that you would not be a supporter of the Iraq War. Fair enough.

But to bring the conversation full circle, Ann Althouse was not, by any reading of her op-ed piece, a supporter of the President's position in this case. I wish that she were.

But, as has been so eloquently stated by many of the commenters above, here is the MAIN POINT:

Judge Taylor did not play by "The Rules" regularly expected of Judges in her decision that stated that the President is not playing by "the Rules". Because of this, her decision is not only suspect, it may have additional unwanted effects, including (apparently) mass hysteria and mob mentality.; 8/23/06, 6:03 PM
SmedleyUnderfoot said...: RogerA wrote:
"Isnt Marbury v Madison a precedent? and could not (notice I said could and not would) some future court overturn that precedent?"

Hmmm, might be more of an existenial question then a judicial one... usually the question is answered that its difficult to imagine that happening, given it would be the judiciary stripping itself of its own power.

Also, MvM is strange in that the power derives from more of an observation rather than a holding (the Professor quotes part of it) that the Judge in order to decide the controversy, needs to determine the law. tthe holding part is that the Judge (or Justice) responsible for looking at both the law and the constitution when determining the law. But you can get that from the constitution itself and the Justice's oath of office.

"Or similarly the question of judicial review could be overturned by a constitutional amendment?"

Yep; 8/23/06, 6:03 PM
Joan said...: cutting and pasting passages from a larger piece, can lead to deliberate or inadvertent distortions

AKA "Dowdification"; 8/23/06, 6:17 PM
SmedleyUnderfoot said...: Seven Machos wrote:
"persons, houses, papers, and effects"

"Are telephone conversations "persons"? No. "Houses? No. Papers? No. Effects? Not so much."

As I wrote before, it was not up to either the President or Judge Taylor to determine whether electronic surveillance of telephone conversations without a warrant was a violation of the 4th ammendment. That was decided in Katz, 389 US 347. Also note the right is "to be secure in their persons". A little more expansive than you suggest.

"You defenders of the civil rights of terrorists are in a real bind as I see it."

You make a grave and offensive error: I support the civil rights of US citizens. If the Government believes a US citizen guilty of being a terrorist, then let them accuse him or her of it in a court of law. That's the way our Constitution works, and if you don't like it, then move. I suggest North Korea.

More to the point in this case, the Bill of Rights means something. None of the ennumerated rights, including the 4th ammendment, can be abrogated by the government without due process of law. Congress in FISA determined that due process. The President failed to follow it.

"If that's the case, then how is it that the law has to remain immutably the same and its interpretation given the broadest, most ridiculous latitude in this instance?

I sense some dissonance here."

Welcome to Precedent. For a Judge of the ED of MI, if the Sixth Circuit or the Supreme Court decides some element of the law relevant to the case at bar, the Judge must adhere to it (unless the facts at hand can be distinguished - meaning the case is not really the same).

The Sixth Circuit can change it's own precedents and those of the courts below and Supreme Court can change every precedent. That's why Judge Taylor has to follow the established judical interpretations of the law and the Constitution; 8/23/06, 6:31 PM
SmedleyUnderfoot said...: Cedarford: you make a good point, but Judge Taylor can't change the fact that wiretapping without a warrant is a violation of the 4th A, or the circumstances under which it is. That was decided in Katz, 389 US 347 and later codified by Congress.

The other problem is that the DOJ has not made your argument. They've rested on the state secrets privilege and inherent powers.; 8/23/06, 6:43 PM
SippicanCottage said...: When I see the word "wiretap" used in conjunction with these ruminations, I know I'm listening to an Ass/Elbow Unitarian.

Ass/Elbow Unitarian copyright 2006 sippican cottage. Some rights reserved.; 8/23/06, 7:01 PM
Rafique Tucker said...: Ann:

As one who believes that the NSA wiretapping program is illegal as implemented, I must say your op-ed is the most reasoned critique of Taylor's critique I've read so far. My main problem with this ruling is that it went too far, and provides no room for the legalization of the program. It simply declares the program unconstitutional, and fails to provide a complete constitutional support to go by. As you said, there's a lot of sophistry.

It's just sloppy jurisprudence, and I'm not a lawyer.; 8/23/06, 7:08 PM
Synova said...: cedarford did a fabulous job of explaining relevant "warrantless" searches that we allow as constitutional. It does seem that someone should have to show how electronic transmissions over our borders are different from customs or freight and postal inspections with respect to the constitution.

And there's all sorts of other situations where warrants aren't requried, though they don't apply to stuff that passes over our borders.

Try asking for a warrant at a sobriety check point.

That the constitution says no searches without probable cause and a warrant is something we all *know*... up until a person starts to actually think about it.; 8/23/06, 7:11 PM
SmedleyUnderfoot said...: Ace: Perhaps I've stated the legal analysis simplistically, but you really need some help with your social skills.

The Katz court stated that the facts of that case did not reach national security issues. That's different, however, from saying that given a national security related wiretapping, that the case would be decided differently. Only one Judge (White) offered an opinion that it would be, which wasn't joined.

However Congress decided the question with the enactment of FISA.; 8/23/06, 7:14 PM
SmedleyUnderfoot said...: SippicanCottage wrote:
"When I see the word "wiretap" used in conjunction with these ruminations, I know I'm listening to an Ass/Elbow Unitarian."

Fine. When you you see me write the word "wiretap", please insert the phrase: "surveillance of electronic communication either telephonic or digital that is a rendering of verbal communication". "Wiretapping" is just shorter. Most people understand it.; 8/23/06, 7:23 PM
jqb said...: Since you have the facts about the case wrong, your point doesn't apply. It does apply, though, to a lot of judges you approve of because they happen to share your views.

"He isn’t arguing that he’s above the law."

Uh, yeah, in the same way that Nixon wasn't arguing that when he said "If the President does it, it's legal."

"Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison."

Uh, no, Marbury v. Madison did not touch on that ... as might be suspected from the fact that Madison won.; 8/23/06, 7:28 PM
SmedleyUnderfoot said...: Ace wrote:

"You simply can then not explain:

United States v. Truong, 629 F.2d 908 (4th Cir. 1980);
United States v. Buck, 548 F.2d 871 (9th Cir. 1977);
United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) (en banc);
United States v. Brown, 484 F.2d 418 (5th Cir. 1973)."

With ease. They were all before FISA. (It's the date of the controversy, not the date of the decision that counts.); 8/23/06, 7:30 PM
SmedleyUnderfoot said...: Ace wrote:

"Which can't encroach on the President's Constitutional powers."

Ahhhh, there's the point the Bush Administration was trying to make: we don't have to listen to Congress when it comes to war powers.

Since you like cases so much, go read Youngstown Sheet & Tube v Sawyer, 343 US 579.; 8/23/06, 7:36 PM
SmedleyUnderfoot said...: Ace: whatever.

Katz, with regard to national security issues was codified by Congress in FISA (yes, modified, but Congress can do what it wants, the basic idea is the same). Don't believe me? Fine. I already apologized for stating it simplistically, take it or leave it.; 8/23/06, 7:40 PM
jqb said...: Hmmm, might be more of an existenial question then a judicial one... usually the question is answered that its difficult to imagine that happening, given it would be the judiciary stripping itself of its own power.

In Marbury v. Madison, the SCOTUS in fact stripped itself of the power, granted to it by Congress, to hear Marbury's case, after arguing the case in his favor.; 8/23/06, 7:41 PM
SmedleyUnderfoot said...: Ace:

"FISA Amended this, with a Democratic Congress and President being the only people in the history of our repbulic to find that the President needs to receive ex ante judicial approval in the form of a warrant to conduct surveillance against foreign threats for national security purposes."

Utterly irrelevant.

The law is the law is the law whether it was passed by a Democrat or a Republican or a Whig. Welcome to America. Don't like it? Move. I suggest Cuba; 8/23/06, 7:44 PM
SmedleyUnderfoot said...: Ace wrote:
"That doesn't mean there is a 4th Amendment issue.

Possibly a statuatory one, but not on that."

You're right. You can look to the Congressional record, as Judge Taylor did to come to that conclusion. But I agree that its a weakness of the argument. ACLU probably recognizes that the FISA can be changed, and is trying to insulate the decision from that, but the statute is the statute...

If Congress decides that due process is satisfied by a "suspicion" or a "possibility" that a foreigner is involved in international terrorism in order to tap (there's that word again - remeber I mean "electronic surv...") their conversation with a US Citizen, then so be it. Its just not up to the President to decide that on his own.; 8/23/06, 7:55 PM
jqb said...: "If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates."

So if, while fudging my expenses on my 1040 and smoking a joint, I argue that Saddam Hussein committed genocide, the significance of those comments evaporates?

It's not irony, it's tu quoque inanity.; 8/23/06, 7:56 PM
SmedleyUnderfoot said...: Ace said...
"BTW SmedleyUnderfoot, not only are we talking about FISA, you have to remember how it applies:

FISA only applies to “situations where the target of the surveillance is a U.S. person or where that surveillance is “acquired in the United States.” The debate over the legality of president’s action covers only those last two categories of cases, not everything done by the NSA.”

Which of course is impossible for those on the left to admit."

Ok, I'm not sure what you're talking about, but I'm talking about the case decided by Judge Taylor, which involved "aggrieved persons" as defined by the statutes - i.e. US citizens or legal residents. Kindly point to where I implied otherwise.

"Actually it isn't, and I demonstrated how."

Missed that somewhere.

"Congrats, you're looking weaker at this point."

Everyone is entitled to their opinion. Or are they?; 8/23/06, 8:01 PM
SmedleyUnderfoot said...: Ace wrote:

"Ok, but:
“Where the President’s authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President’s constitutional authority and should be read to be “subject to an implied exception in deference to such presidential powers.”
–Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.)."

Where'd you get this quote? These words are not at 783 F.2d 1072, 1078.; 8/23/06, 8:04 PM
SmedleyUnderfoot said...: Ace wrote:

"Relaxing the statute probably would still upset a wide portion of the left/ACLU types"

FISA probably upsets them as it is, much less if it were any weaker. But remember the ACLU (like the NRA) defends citizen's rights at the boarder.

They don't wait until the Government puts a listening device in every home (or takes guns away from every law abiding citizen). They defend everything that can be perceived as an incursion on civil rights with the knowledge they will lose some, but at the same time make politicians, judges and the people think hard about the meaning of those rights. (yes I agree there's some tension in the fact that the ACLU wouldn't be so enthusiatic about the right to bear arms, but they propbably figure the NRA has that one covered).

With that I'm done

Cheers; 8/23/06, 8:13 PM
SippicanCottage said...: Datamining is not wiretapping. And foreigners are not constitutionally protected.

Owning a phonebook is not stealing the persons' souls inside, either.

Telling the president that he needs a warrant to figure out who he needs a warrant for. Great. Maybe if you can force that, you can force him to get warrant to get a warrant to get a warrant to approach a FISA wiretap request. I'm sure bin laden will just keep pumping quarters into the payphone while you keep him on hold. Then some illiterate judge can ask for the whole mess in triplicate. No hurry.

I know lawyers like to charge for thinking about things while they're on the pooper or asleep, but others actually have to accomplish things.

It's not wiretapping. Words mean things. Unless you're a judge with the writing skills of a ranter at 4AM on Firedoglake.

Or an ass/elbow unitarian.

I was impressed that she was so erudite that instead of saying Bush is Hitler, she said Bush is Kaiser Wilhelm II. Very pithy.; 8/23/06, 8:31 PM
hdhouse said...: Seven Nachos (sic) doesn't seem to grasp the central point, the flanking points or the point of a well sharpened pencil. Personal attacks aside,

1. I don't really trust anyone who uses the word "awesum" as in "awsesum dude" or other beavis and butthead prose
2. One of the requisites for blogging should be to come out of your particular closet and say who you are. If you are an authority (methinks not) then hang your albeit small onions of whatever on the door and state your identity.

last, and all kidding aside you are and will continue to be a very humble person with a great deal to be humble about.

it is irksum and generally silly to think that a profession bestows brains or any capacity for logic and rationality. ms. althouse proved that a professorship does not imply scholarship or for that matter, sense and sensibility. in the hubris of lawyers, self agrandizement should be followed by self loathing.; 8/23/06, 8:55 PM
Joan said...: If "awesum" is deplorable, then how execrable must "irksum" be?

(bwah!); 8/23/06, 9:47 PM
Ann Althouse said...: Astrolabe: That is the whole idea of an op-ed page. It's nothing new. Things are set up to encourage this kind of opposition.; 8/23/06, 11:15 PM
Synova said...: Quoting someone: "If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates."

Quoting ts: "So if, while fudging my expenses on my 1040 and smoking a joint, I argue that Saddam Hussein committed genocide, the significance of those comments evaporates?

It's not irony, it's tu quoque inanity."

Why not just say that you don't understand?

The constraints on the president are directly related and in balance to the constraints on the judge. Your pot smoking and Saddam's genocide are entirely unrelated. They don't even apply to any remotely related criminal authority. Heck, the genocide may not even be *illegal*.; 8/23/06, 11:33 PM
BigMitch said...: David Walser says that the president is making two distinct but compatible arguments, namely, (1) that the domestic spying program, which Bushites like to call the TSP does not violate FSA, and (2) FSA cannot enjoin the president from doing something he is mandated to do by the Constitution, presumably meaning Congress cannot prevent the president from protecting the country. Mr. Walser says the government is not pushing the second argument and so I will give it scant attention. Suffice it to say, Congress shares some responsibility for the defense of the country “and for the defense of the Constitution.”

As for the first argument, Mr. Walser gives us a scenario in which the interception might be legal. “It is possible that the program is structured such that the intercepts are taking place outside the country and that US persons are not the target of the intercepts.” My understanding is that it has been conceded that some of the intercepts are of calls of people in the U.S., and Judge Taylor’s decision indicates as much. The WH press secretary took pains to point out that calls originating in the US to Afghanistan are “international,” as are airplane flights from Boston to London. However, those phone calls are covered by FISA. And if US persons are involved it is domestic spying.

But Mr. Walser is correct that the government does argue that the warrantless spying on Americans is permitted by FISA. The “argument” (if it rises to that level of discourse) goes like this: The FISA statute has some language in it like “unless otherwise authorized by law.” The AUMFA (authorization to use military force in Afghanistan) authorizes all necessary components of war, including signal intelligence. Therefore the domestic spying program is ‘otherwise authorized by law,’ because it is authorized by the AUFA, and therefore within FISA.

Judge Taylor gave this argument at least as much attention as it deserved. The FSA authorizes warrantless interceptions for 15 days in cases of declarations of war. It is absurd to argue that in cases of “authorizations to use force” the period is extended indefinitely. Hamden teaches us otherwise.

For good and sufficient reasons Judge Taylor concluded, “The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine.”

Mr. Walser is mistaken in his belief that we should take comfort from the fact that lawyers in the DOJ and elsewhere have reviewed the program and reached a good faith determination that it is legal. It is the duty of patriots to jealously guard their freedoms, and to view with the utmost of skepticism any encroachment. Having heard some of the arguments (as presented by Attorney General Gonzalez) I cannot give him credit for good faith.

But I do give him props for keeping a straight face. Most people with a conscience couldn’t have done it.

Visit the Schapira blog, What we know so far ...

“and tell ’em Big Mitch sent ya!”; 8/24/06, 12:34 AM
David Walser said...: Big Mitch,

Not only can I do this with a straight face, I can do it with a clear conscience. I did not discuss the AUMF argument made by the Administration because it does not tie into the state secrets claim.

The argument I did discuss is not based on AUMF, but on the text of the FISA statute. Here's the relevant quote from Sec. 1801(f)(1):

(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18; (Emphasis added.)

This is not simple language, but it is not so difficult that it prevents most readers from reaching the correct conclusion: Something is not "electronic surveillance" (meaning no warrant is needed) if it does not target a US person and if the acquisition occurs outside the US.

Big Mitch, do you know whether the NSA intercepts took place inside the US or whether US persons were targeted? You can't know the answer to these questions without access to the information that the government claims is subject to the state secrets doctrine. Neither could the court. Since a FISA violation cannot be found without resolving this foundational factual question, the judge made a reversible error when ruling FISA was violated based on the public record.

That, Big Mitch is my argument. If you disagree, tell me how it's possible to know FISA was violated without knowing the location where the intercepts were made and who, if anyone, were the targets of the intercepts.

By the way, Bruce Hayden believes the NSA program had to have had at least some of the intercepts made here in the US. He also admits that he does not know this to be the case. (Bruce, correct me if I'm wrong.) However, if the state secrets doctrine applies, the government does not have to prove where the intercepts were made -- if doing so would require disclosure of those secrets.; 8/24/06, 1:37 AM
David Walser said...: Big Mitch, one more thing. My argument, based on the statute, that it's unclear that FISA was violated does not exhaust all the ways the program could have been structured in a manner consistent with FISA. For example, the program could target US persons if such persons did not have a reasonable expectation of privacy. [See (f)(1), quoted above.]

There are at least two arguments for the proposition that no one should have a reasonable expectation of privacy when talking from San Francisco to a terrorist in Tora Bora: First, as we all know (because the NYT told us so), everyone knew the government was doing it's best to snoop on terrorists. So, you'd have to suspect Uncle Sam might be listening in, right? Second, much of our electronic communication is done by cellular, cordless handsets, and other wireless technology. This is true even when one end of the conversation is through a phone that's plugged into the wall. The courts have held that there is no reasonable expectation of privacy when such an insecure means of communication is used.

My point is that there are lots of factual questions that would need to be answered before a violation of FISA could be proven. If that can not be done without revealing state secrets, put a fork in it. It's done.; 8/24/06, 1:58 AM
hdhouse said...: Joan said...
If "awesum" is deplorable, then how execrable must "irksum" be?

loathe sum?

oh you sly devil. irk sum of course doesn't mean what it says. whizbang right over many heads. but ms. MIT caught it.

loathe sum is much more on target and doubtful that beavis uttered the word ever while awsum dude was virtually imprinted there (i only know by reading about it).

the point remains that the op-ed piece drew no reader responses in the Times letters and the op-ed remains not up to the general clarity found in the rest of the paper.

I think of it as being permitted to play Hamlet in Central Park and muttering with a southern accent.; 8/24/06, 7:03 AM
hdhouse said...: What Ms. Althouse missed and what becomes the remains of the argument here is that the Government failed to provide a convincing case and that to argue anything other than some blithering about his inherent rights and secrecy/security issues prohibiting the DoJ to argue the case fully.

Please demonstrate where "I don't have to tell you, just trust me" is something that any Judge has either embraced or sustained.

Judge Taylor's position - and yes it could be better stated of course or course - but the fact remains the government chose no good hook to hang their hat and that perhaps has more to do with testing the argument here in a doubtful overall case rather than trotting it out for the first time someplace it will make a larger difference.; 8/24/06, 7:31 AM
Ann Althouse said...: No, it is most emphatically not just a question of whether the judge could have said it better. For a judge to BE a judge, that is, to be someone who should be in the position to make the call, the judge must work through a legal methodology. What an opinion like that shows is -- almost certainly -- that the judge didn't do her job. That is an abuse of power. The irony I cite in the op-ed is that a judge calls the president on what is perceived as his abuse of power, but she does not notice her own. Those who care about law and care about rights are fools not to care about the way this undermines the judicial power. Your rush to defend her is so frustrating. You are playing into the hands of the opponents of judicial power. I'm trying to tell you that, and you're blaming the messenger. Pathetic!; 8/24/06, 7:52 AM
knox said...: Ann,

you ought to add a list to your sidebar of the posts that have garnered the most comments over the years (I assume this is one of them)... it would be interesting to see.; 8/24/06, 7:53 AM
SippicanCottage said...: David Walser- I said what you said, sorta, but I managed to get a reference to Kaiser Wilhelm into mine, so there...; 8/24/06, 9:18 AM
SmedleyUnderfoot said...: Ann Althouse wrote:
"No, it is most emphatically not just a question of whether the judge could have said it better. For a judge to BE a judge, that is, to be someone who should be in the position to make the call, the judge must work through a legal methodology. What an opinion like that shows is -- almost certainly -- that the judge didn't do her job. That is an abuse of power. The irony I cite in the op-ed is that a judge calls the president on what is perceived as his abuse of power, but she does not notice her own. Those who care about law and care about rights are fools not to care about the way this undermines the judicial power. Your rush to defend her is so frustrating. You are playing into the hands of the opponents of judicial power. I'm trying to tell you that, and you're blaming the messenger. Pathetic!"

I got the assertion the first time. Please, Professor, really walk us through your complaint: using one instance of an issue, please demonstrate, specifically, where Judge Taylor failed in her legal analysis and how, if you were writing the opinion, you would have improved it.

I hope you can see that without the support of your own legal analysis you've simply made an empty assertion.; 8/24/06, 10:27 AM
Maxine Weiss said...: Let's talk Bill Of Rights:

The Judge violates Amendment IX of the Bill of Rights.

Amendment IX says you aren't supposed to take away one Constitutional right (Executive Privilege) in order to uphold another one (Amendment IV).

But that's just what the Judge is doing....substituting one right for another....which is prohibited according to the Bill of Rights, which Judge Taylor invokes.

(Hey, I'm gettin' good at Con. Law huh? I'll pass that course yet!)

Peace, Maxine; 8/24/06, 11:19 AM
BigMitch said...: Mr. Waiser, thank you for your respectful response. I am sure your arguments are made in good faith, and they are good ones. However, they are not the arguments that the Government has made in the public record, and it appears that they are not the arguments made by the government in the case. According to Judge Taylor, the facts necessary to establish the violations were undisputed. That's the nature of summary judgment.

I must, however, respond to the dangerous argument that you present to the effect that terrorists should not expect privacy. First of all, the plaintiff's in this case were attorneys and journalists who talk to people who may have ties to al Qaeda. They need confidentiality, and their labors serve the public interest.

On January 2nd of this year, I dissected the 5 page memo that Assistant Attorney General Moschella submitted in defense of his program of domestic spying, in which this argument re: expectation of privacy was made. Here is what I said in a blog note entitled, The President and Article II of the Constitution,

"The third and final argument is that terrorists couldn’t possibly have an expectation of privacy. This is where the truly dangerous tendencies of the DOJ lawyers are revealed. The expectation of privacy is not judged by the content of the conversation, but rather by the nature of the communication. When a person speaks on the telephone, he or she has an expectation that the conversation is not being listened to by anyone other than the intended audience.

"Why is this last argument so pernicious? Because it can easily be applied to anyone that the government doesn’t like. Drug dealers? Why should they have an expectation of privacy? Child molesters? Why should they have any rights at all? People who disagree with the government? Hey, haven’t you heard: There’s a war on terror? Quakers? I never trusted them anyway.

"Down that road lies tyranny of the sort that our President is sworn to resist. That’s what it means when he takes the oath prescribed in Article II of the Constitution:

"'I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

"This is about the President of the United States violating his oath and flouting the law. What should be done about it?"

"… and tell ‘em Big Mitch sent ya!"

P.S. The line about Quakers was just comedic hyperbole for the purposes of making a reductio ad absurdum argument. Actually, some of my best friends are Friends. And by the way, the Government was spying on Quakers in the U.S.; 8/24/06, 12:29 PM
Stephen said...: "What Ms. Althouse missed and what becomes the remains of the argument here is that the Government failed to provide a convincing case and that to argue anything other than some blithering about his inherent rights and secrecy/security issues prohibiting the DoJ to argue the case fully."

Again -- a judge is not limited to the briefs in deciding a case and in as big a case as this one it is incredibly rare a competent one would look only to them. If this were the case, a judge would merely read the briefs of both sides in making a decision and cut his workload by 90 percent. This is the point Althouse, I think, was getting at in her most recent comment. A judge who does that is incompetent. A judge who needs to rely merely on the legal briefs (and doesn't do her own research, as well as doesn't have a firm grasp of the law beforehand) should never be appointed to the bench.

If I don’t argue that it is unconstitutional to sentence me to 50 years in prison for jaywalking, that does not give a judge the right to declare it’s constitutional on the grounds I didn’t provide a good argument against it. It's likely the government didn't provide a good argument on this issue merely because it never occurred to them it would be seriously debatable.

If you’re going to blame the competency of the government’s lawyers, are people who were wrongly convicted because their lawyers fell asleep going to start getting the same treatment?

Where’s the line here-I assume it’s something more concrete than “one side is evil and we have sympathy for the other.”

If it isn’t, and the government providing a weak argument is the problem, then this case should be overturned, right?

"loathe sum is much more on target and doubtful that beavis uttered the word ever while awsum dude was virtually imprinted there (i only know by reading about it)."

Being a grammar Nazi doesn't directly infringe on Godwin's Law, but is it possible to make it a corollary. I mean, you're really going to argue this?; 8/24/06, 12:35 PM
David Walser said...: Big Mitch,

I'm trying to remember the subject of our original disagreement. If I can summarize it correctly, your position was that the criminal nature of the TSP was obvious. In your view, the TSP clearly violates FISA, and the 4th and 1st Amendments. Because these violations are so clear, the Judge did not need to spend much time outlining the facts and applying the law in her opinion. The correctness of her conclusion is obvious and does not need to be supported by analysis.

I think I've shown that it is NOT obvious that FISA was violated. It can just as easily be shown that it is NOT obvious that the 4th Amendment was violated. (Without access to a list of the phone numbers that were subject to the NSA intercepts, the plaintiffs cannot show they were "searched". Without showing they were searched, they cannot even begin to show that the search was unreasonable. Absent a showing that plaintiffs were subject to an unreasonable search, where's the 4th Amendment violation?) If, in the end, we agree that a good faith position can be presented that the NSA program may not have violated the law, then, aren't we also forced to agree that summary judgment was inappropriate in this case? If we need to know which numbers were intercepted, where the intercepts took place, and even what were the motives behind the intercepts (was a particular person the target of the intercept) to determine the legality of the program, there seems to be a lot of non-minor factual questions to be resolved.

You may say that the Judge considered these factual questions and disposed of them properly. I say you can't tell that from the opinion, which is the problem. You say we can't trust the NSA to do the right thing without judicial overview. I understand the necessity of keeping the details of the NSA's programs secret (with limited Congressional oversight). What I don't understand is the need to keep the Court's reasoning for it's opinion secret from the public.; 8/24/06, 1:46 PM
BigMitch said...: If is fair to summarize my position as follows: the illegality of the program of domestic spying is clear. (Criminality is not necessary to sustain my argument.) I don’t use the expression TSP because not everyone who is being surveilled is a terrorist. I draw support for my position from the Congressional Research Service, which I reported on in Who knows what evil lurks in the heart of the administration? The CRS does! and Laurence Tribe’s letter to John Conyers which I blogged about in Big Mitch gets slapped down by Laurence Tribe. See also, Horsefeathers vs. Poppycock: Constitutional scholars weigh in, posted here, wherein I write: “a group of 14 legal scholars have disputed Moschella's legal analysis, saying in a letter just sent to Congress that the White House failed to identify ‘any plausible legal authority for such surveillance.’”

The decision of Judge Taylor rested on undisputed facts, and needed only an analysis of the law relating to those facts. It is distinctly not my view that her conclusion does not need to be supported by analysis. Rather, it is my opinion that the analysis that was presented was completely suitable to the task.

With all respect, you have not shown that FISA was not violated. At best, you have given a possible scenario in which it would have not been applicable. However, it has been demonstrated through unclassified documents that it was, in fact, violated (unless you accept the AUMF argument, variously described as 'horsefeathers' and 'poppycock,' supra.)

The Government has never asserted that the FISA law is unconstitutional. And yet, they argue that some inherent powers of the presidency supercede it. This is not logical.

Your 4th Amendment argument also falls short. Demonstrating that there was a search and thus a violation might be necessary for relief that is remedial, e.g. suppression of evidence. But it is the nature of injunctive relief to be forward looking. If the NSA is not intercepting wire communications, then the injunction should not be an imposition.

You ask, “If, in the end, we agree that a good faith position can be presented that the NSA program may not have violated the law, then, aren't we also forced to agree that summary judgment was inappropriate in this case?” The answer is No.

To withstand summary judgment legal arguments must not only be presented in good faith. They must also be correct. (Factual assertions stand on a different footing. If made under oath they are assumed to be correct and if contradictory, the facts are assumed to be those most favorable to the party opposing summary judgment.)

Summary judgment was appropriate in this case because the law, as explicated sufficiently in Judge Taylor’s opinion, is clear, and the facts necessary to sustain it were not in dispute. That’s my story, and I am sticking to it.; 8/24/06, 6:00 PM
David Walser said...: Big Mitch,

You say the following two things:

1) [It] is fair to summarize my position as follows: the illegality of the program of domestic spying is clear.

2) With all respect, you have not shown that FISA was not violated. At best, you have given a possible scenario in which it would have not been applicable.

Which is it? Is it possible that FISA was not violated or is it clear that it was? I know you said that declassified documents show that FISA was violated, but would you mind pointing me to your source for this assertion? It's been a while since I read the NYT report of the program (and the subsequent articles in other sources), but I don't recall the NYT making the claim that the program was illegal. I think the claim was that its legality was "questionable".

Again, as I hope I've demonstrated by citing the text of the statute, to demonstrate a violation of FISA you must show that a US person was the target of the surveillance or the intercept took place inside the US. I don't recall anything from the Administration that discloses where the intercepts took place. I recall the Administration denying that US persons were the targets of the program and that there has been speculation in the press that the NSA outsourced the data collection to other countries. Absent access to a list of the individuals targeted by the program and disclosure of where the intercepts took place it is impossible to know that FISA was violated. This is the threshold factual question. Since I think that question is unresolved, summary judgment is inappropriate.

I know the Judge said she was able resolve this factual question with the facts publicly available. You agree with her. She failed to explain how she did this. Could you explain how the plaintiffs were able to show a violation without documenting that a US person was the target of surveillance or that an intercept was made in the US? Since those details of the program are not public, I maintain that it was impossible for plaintiffs to have met their burden of proof on this issue. Simply stating that the Judge reviewed the evidence and found it sufficient does not cut the mustard. I maintain the Judge got it wrong, simply repeating her naked assertion won't overcome my concerns. Show me how they could have done it and I'll pick up a pitchfork and join you at the barricades.

Lastly, with regard to the 4th Amendment ruling. I understand that the purpose of an injunction is to prevent future violations. However, don't the plaintiffs still have to prove that someone's 4th Amendment rights have been or will be violated before an injunction is appropriate? It's not enough that, in theory, a program might be run in a way that violates my 4th Amendment rights. To obtain an injunction, I have to show the program is being run in a way that violates the 4th Amendment (or that it will violate). Otherwise I could shut down all police searches of automobiles on the theory (and practical reality) that sometimes their searches are unreasonable. In this case, the plaintiffs' good faith belief that they were subject to an unreasonable search does not suffice. Without access to a list of those who were "searched", the plaintiffs cannot demonstrate that anyone was searched -- let alone that such search was unreasonable. Again, show me how it was even possible for the Judge to have resolved this factual question without recourse to classified information and I'll accept that she made the right call.; 8/24/06, 8:36 PM
SmedleyUnderfoot said...: Maxine Weiss:
Let's talk Bill Of Rights:

The Judge violates Amendment IX of the Bill of Rights."

Ahhh, no. The main fallacies in your argument are that "executive privilege: is:

1) not generally thought to be found in the Constitution, but in the inherent nature of the "President", "executive" or in other words the person who imbodies the sovereign as individual. This is complicated by the checks and balances and whether some of the privileges are really checks on the other branches or rights of the sovereign or both. Bottom line is that if it is executive priviledge that is being taken away, its not a Constitutional right, but something thought to exist beyond the Constitution (which the Constitution has the power to regulate). Otherwise it would be an executive power or duty. and not a "priviledge".

2) The President, in his capacity as President, is most decidedly not "the People". That's the rest of us who are not Judges, Congressmen or Presidents. If the Judge finds that a priviledge the President has assumed is inconsistent with the Constitution and established law (I being one who belives the President is bound by the law as passed by Congress and not his own), then the Judge is not taking a "right away from the People", but taking an assumed privilege away from the Office of the President.; 8/24/06, 11:13 PM
SmedleyUnderfoot said...: Seven Machos wrote:
"Smedley: I paraphrase: "The United States has no hereditary kings."

This statement in a judicial opinion is always uncalled for, except for when a kingship within the United States is at issue. Using it in this context, when it seems to have no connection to anything else whatsoever, is snide and makes the opinion seem flipant.
...
There. There is your instance."

Firstly it may be all of the paraphasing and chopping (by the media the Professor and everyone else) that's causing the problem, so let's get the quote right:

"We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution." ALCU v NSA, 2006 U.S. Dist. LEXIS 57338 (2006) at 74.

When I read that, I see the phrase you complain of as a statment, rather than interpreting it as an acusation. It can be interpreted as inflamitory language, particularly if taken out of context, but it is a fact, there are no hereditary kings in the US, and the contra example is illustrative of the assertion that all governmental power in this country derives from the Constitution.

I don't completely agree with the last sentance of the quote - there are technical areas where necessary powers are not enumerated - but the assertion is a frequently argued and recognized position. That part of the quote probably needed a reference for support, but that would be a quibble.; 8/24/06, 11:36 PM
SmedleyUnderfoot said...: Walser, Mitch, et al:

I was thinking about the points you're making now on the train on the way home, as well as Sippican's complint about the term "wiretap", which was more relevant than I gave it credit.

I think you're both right, but I'll have to engage in some conjecture to say why I think that. It is probably the case that the TSP collects and stores all communication fitting a particular profile - language, geographical source, particular phone numbers, what have you, and that this occurs before anyone figures out who the parties to the conversation really are, and whether they are US citizens. Hence the data mining element of the case.

Judge Taylor is constrained by the current interpretations of FISA to say this is a violation of the statute and by extension the 4th Amendment. But at the same time, this kind of collection and mining of data is critical to the counterterrorism effort.

The problem is then that the solution is with Congress: adjust the due process in FISA to allow the recording and analysis of the conversations of US citizens, engaged in conversations with foreigners, when the communication is identified by the use of a valid profile that is directed at the foreigner.

zthe solution is not for the President to act on his own in violation of FISA.; 8/24/06, 11:54 PM
BigMitch said...: This comment has been removed by a blog administrator.; 8/25/06, 1:23 AM
BigMitch said...: Mr. Walser,

You ask, “Could you explain how the plaintiffs were able to show a violation without documenting that a US person was the target of surveillance or that an intercept was made in the US?”

In the plaintiff’s motion for summary judgment we find the following:

“The NSA is intercepting communications that are subject to the requirements of FISA. As the Attorney Genereal has acknowledged, “the Foreign Intelligence surveillance Act ... requires a court order before engaging in this kind of surveillance … unless otherwise authorized by statute or by Congress.” [citations to the Statement of Undisputed Facts omitted]

I highly commend the Statement of Undisputed Facts to your attention, because it details where and when administration officials made each of the concessions necessary to sustain summary judgment. But I concede the point that Judge Taylor still had to be explicit in her findings that the FISA law was in fact violated. She was.

On page 1 of Judge Taylor’s decision she states that the secret program “undisputedly inaugurated by the National Security Agency (hereinafter “NSA”) at least by 2002 and continuing today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations. The TSP has been acknowledged by this Administration to have been authorized by the President’s secret order during 2002 and reauthorized at least thirty times since.”[citation to White House press release available on the internet ommitted.]

On page 13, Judge Taylor makes the following findings: “It is undisputed that Defendants have publicly admitted to the following: (1) The TSP exists; (2)it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information."

In considering the standing claim, Judge Taylor writes, “Plaintiff’s would be able to continue using the telephone and email in the execution of their professional responsibilities if the Defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations. [emphasis added]

Judge Taylor performed a thorough Youngstown Steel analysis, in which context she writes: “In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.” [emphasis added]

In light of the foregoing, I do not agree with the premise of your statement that “Since I think that question is unresolved, summary judgment is inappropriate.”

With respect to the 4A claims: The answer to your argument is in the extensive portion of Judge Taylor’s opinion dealing with standing.

After you have read the Statement of Undisputed Facts, and grabbed your pitchfork, let’s grab a Pepsi before we head to the barricades.

“… and tell ‘em Big Mitch sent ya!”; 8/25/06, 1:25 AM
Stephen said...: ”To withstand summary judgment legal arguments must not only be presented in good faith. They must also be correct. (Factual assertions stand on a different footing. If made under oath they are assumed to be correct and if contradictory, the facts are assumed to be those most favorable to the party opposing summary judgment.)

Summary judgment was appropriate in this case because the law, as explicated sufficiently in Judge Taylor’s opinion, is clear, and the facts necessary to sustain it were not in dispute. That’s my story, and I am sticking to it.”

Big Mitch, you’re seriously overestimating the standard for defeating summary judgment. It generally doesn’t rest at all on the quality of an argument, the fact it’s in good faith, or (unfortunately) even whether it’s correct. The fact something presents a disputed legal issue means it will go to trial. I’m not certain the government could have just put “no, the other side’s wrong” and beaten summary judgment by it, but it wouldn’t surprise me if somewhere that’s worked.; 8/25/06, 9:23 AM
BigMitch said...: Stephan, thank you for your reply, but I must respectfully disagree. As a general principle, judges decide questions of law, and juries decide questions of fact. Evidence, often in the form of testimony, is necessary to establish facts Since testimony always puts the credibility of witnesses in issue, trials (and sometimes tribulations) are necessary to resolve factual disputes. Conclustions of law are made by examining statutes, and precedent, and other pursuasive authority. They can be determined without resort to testimony or evidence.

It should go without saying, that people disagree about what conclusions of law are susstainable by examining statutes, precedent, etc. (I think we have proved that here.) But once there are no factual issues in dispute the judge is in a position to decide the case based upon the application of the law (as he or she determines it to be) to those undisputed facts.

The professor's point is that the Judge Taylor should have done a better job of explaining how she came to her conclusions of law. I concede that Ms. Althouse is a better judge of these things than I, which is why she is called "Professor."

My view, for what it is worth, is that Judge Taylor did an adequate job, especially in light of the fairly non-controversial fact that the Administration's defense of the program has met with universal disdain from legal scholars. (But note, I have no idea what Professor Althouse's views on this question are.)

In olden days, i.e. the 70's in Alaska, where I live, a motion for summary judgment could be and frequently was defeated with an affidavit of counsel that said no more than, "There are genuine issues of fact in the above-captioned case." Now, more, but not much more, is required. However, it has never been the case that summary judgment could be defeated by claiming that there are genuine issues of law that need to be resolved. That's what summary judgment is for.

Perhaps I was too glib when I said that to sustain a motion for summary judgment arguments need to be not only presented in good faith, but also correct. I should have said, the judge must determine, based on briefing, argument and independent research, what the law commands.

"... and tell 'em Big Mitch sent ya!"; 8/25/06, 12:27 PM