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).

268 comments:

1 – 200 of 268   Newer›   Newest»
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

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).

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.

Seven Machos said...

That was awesome.

Palladian said...

And how fitting that the illustration for your op-ed about judicial fiat was done by one David Suter!

Dr. Melissa 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?

37383938393839383938383 said...

It was exceptionally good. I have two criticisms, however.

1. The graphic should have been of your feet.
2. THERE WERE NO LINKS!

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!)

Christy said...

Nicely done.

BTW, Gateway Pundit is all excited about Judicial Watch learning that Judge Taylor is a Trustee and Secretary of an organization that gave money to the ACLU. Any thoughts?

SippicanCottage said...
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C. Schweitzer 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.

JDM said...

Mr Cottage -

I see you are giving Prof Tribe the benefit of the doubt. My understanding was that his article on the decision could only have been written while he was blind drunk.

harold house said...

Why yes you did get published you little rascal. It's 124am and I've read and re-read your tomb 3 times.
Glorioskis you are one petulant little right winger.

I presume it didn't cross your mind that the government's argument was astoundingly weak and based more on a vision of what the executive should be in the minds of fools rather than what the constitution allows us mere mortals.

Oh, least I forget, please, oh please try to adapt a writing style that has clarity as a basis. Your handwringing obviously jumbled your sentences in a careless bit of mishmash far worse than the decision you decry.

SippicanCottage said...
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harold house said...

Now having read the other comments it appears you teach constitutional law? Really?

How droll.

SippicanCottage said...
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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

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.

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.

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!"

Hamsun56 said...

Congrats on your excellent op-ed.

Scott W. Somerville said...

I finally got an iPod, and finally downloaded a podcast, and finally got to YOUR podcast (on Judge Taylor's opinion) at lunch yesterday. I'm delighted to follow up that pleasure by reading of your splash in the Times!

I went to Harvard Law, and survived the experience largely because of the kindness of Prof. Mary Anne Glendon, who made life in that wilderness more bearable. I was thinking how much of an asset YOU would be there.

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

nypundit said...

Ann,

Don't you know by now that if you criticize how a decision is reached that the liberal establishment likes you are automatically a right-wing nut job. It doesn't matter if you say you agree with the decision or not.

Pogo 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?

Goesh said...

-more akin to a Public Service announcement - greatly beneficial and clarifying for lay folks - thanks

The Drill SGT said...

The RCP folks have you in their morning read

http://www.realclearpolitics.com/

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.

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.

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.

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.

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.

Henri Shape said...
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Pogo 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."

Ann Althouse said...

Mojave: You don't understand the piece. Read it again.

Henri: I voted for Gore.

Henri Shape said...

Funny.....Some of us who were in the majority back during the Bush/Gore election are smiling right now. But we recognize that's it's most likely short-lived happiness. Unfortunately, it will be the same old judicial politics that has invaded even the highest courts in this country. Ah, the American way....

MadisonMan said...

Congratulations on a nice op-ed. This the most recent deadline, I'm guessing.

Cedarford said...

Mrs Althouse -

I came to your blog just to congratulate you on a wonderful little essay of crystal clarity that enabled layman such as myself to readily "get" what the core issues of criticism the legal community had with Judge Taylor's decision were.

That was an essay that provided a lot of learning in a concise way. I have always worried about "over-reaching" people in power - be they state Attorney Generals, judges, colonels, or power-thirsty little corporate toady-boys. Most are careful to cover their tracks. It is amazing that just such someone in a high appellate court position would be so careless (or arrogant) that they made such a poor attempt at hiding their personal agenda. For that reason, I sent your essay on to a consulting firm I do business with on Judge Taylor being a great example of executive "CYA breakdown". A Management Failure mode flushed out.

Suffice it to say that if Taylor had been at several private firms in similar capacity and had unwittingly smoked herself out as she did - she'd be gone.

I just wonder why she appeared to have no safety net. Like-minded confederates that knew her decision was pre-determined, welcomed that, but who could have quickly seen how professionally embarassing and intemperate her decision was - if they only had a chance to review&comment on a draft.

Finally, as other posters have noted, she did at least have the appearance of a conflict of interest that should have been mentioned by her to the Court. And more ACLU links may be flushed out, which hopefully do not include past direct work with the specific ACLU plaintiffs that appeared before her. That, even if innocuous, makes her situation look even worse.

Good thing we are the only country that gives judges like her lifetime appointments, ey?

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.

stephenclark said...

Before being so sanctimonious about a liberal decision, Prof. Althouse should have considered her own difficulty objectively evaluating constitutional questions.

Just over a month ago she praised the New York Court of Appeals for rejecting constitutional challenges to the exclusion of same-sex couples from civil marriage. The extent of her decidedly result-oriented reasoning--on this very blog--was as follows: "This is an issue that needs to be worked through the political system over time to reach a stable conclusion."

I appreciate that perspective and perhaps even share it. But that is NOT a legal argument; it is a policy preference. The framers of the New York State Constitution guaranteed all persons the "equal protection of the laws," and Prof. Althouse failed utterly to explain how the New York Court of Appeals was correct, as a matter of disinterested constitutional analysis, in rejecting these challenges. She liked the result, so she approved of the opinion. What utter hypocrisy to rant now about Judge Anna Diggs Taylor's opinion in the warrantless search case.

Perhaps Prof. Althouse would like to explain how gays and lesbians can, according the New York Court of Appeals, be deemed a suspect class for some purposes but not for others. That proposition has no support whatsoever in equal protection law.

Perhaps she can also explain how on principled and neutral grounds the New York Court of Appeals could fairly say that anytime a rational basis exists for a law, strict scrutiny is unavailable. That proposition not only has no support in constitutional law but flatly contradicts the existing structure of constitutional law.

It is clear that the New York Court of Appeals shared Prof. Althouse's personal political preference for leaving the question of same-sex marriage to the legislature. Unfortunately for both the Court and Prof. Althouse, one can achieve that outcome in a judicial decision only be refusing to apply generally applicable equal protection principles to the case--in other words, engage in result-oriented decisionmaking.

Professor, heal thyself!

Great White Snark said...

Great op-ed. I, too, had thought it was ironic. The silence on this point from those who support the outcome of this case -- without regard for the rationale, such as it is -- as a check against an executive power-grab has been appalling, though unsurprising.

pseudonymous in NC said...

Glenn Greenwald:

"This judge, unknown to the Important People in academia and the political power centers, sitting in her little Detroit courtroom, has broken the rules. She used language which is uncouth (she pointed out the obvious -- that this President has pretenses to being a King) and refused to pay homage to the false orthodoxy that there are really difficult questions triggered by the President's refusal to abide by the criminal law. How irresponsible, unscholarly and unserious she is."

Ann Althouse:

"Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality...

"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."

Thanks for proving his point so comprehensively.

pseudonymous in NC said...

As for the 'hereditary' thing, perhaps a tighter use of language would be 'arbitrary', given the neo-Filmerian tendencies of the White House legal counsel towards executive power. But since Filmer's argument was that arbitrary power derived from heredity, that's forgiveable.

ad3pt said...
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ad3pt said...
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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.

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).

Pogo 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.

Rick said...

Dear Ann:

You show that it's possible to stick to the facts AND show personality; that proves it CAN be done. Most of us in journalism these days sacrifice the former for the sake of emphasizing the latter.... As a broadcast journalism major, I took one law class--on libel law. How I would have benefited from taking more! If more of us could learn to think and write clearly -- without sacrificing our own "voice" (I hate using that word but am on a deadline and can't think of a better one), the way you do, and had the rigorous self-control that you do, journalism in this country wouldn't be held in such low regard. The proof: unlike some of your less careful readers, I CAN'T tell from your op-ed how you feel about the President's actions. That's exactly as it should be. I wish we could clone you and put you in J-school. How do you feel about stem cell research? (I'd give you my opinion, but I'm a journalist! : )

Abraham said...

Adept and his/her friends demonstrate that clearly that for some, the ends justify any means. In fact, for them, to even question the means, as Ann has done, is to attack the ends.

Folks. Ann is not arguing that the Court was wrong. She is arguing that it did a terrible job of judging. Congress' function is to make laws - that should not stop us from complaining when they are poorly written, even if we agree with the aim of the law. So, too, we should hold the judiciary to high standards, even if they are reaching the results we want. Otherwise, you are endorsing the priciple that having an imperator is acceptable, so long as it is our imperator.

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.)

noah said...

Congratulations Ann for the clarity with which you made your point.

Any thoughts on how the Circuit court will deal with this travesty?

Mojave Joe said...
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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.

Rattan said...

The column is interesting but devoid of finding substantive flaws in the opinion. It quarrels with the style (sophistry and all). The disagreement is not with the result, which, most if not all of us, know is required to restore belief in division of powers. Instead, it is the form of the opinion that bothers some.
The despised form of the opinion could not breathe life into the poor quality of traditional legal analysis by lawyers relied upon by the White House (starting with the present attorney general) that resulted in this case even being necessary.

I do not understand the fourth amendment to be so limited that the President could throw me into jail for merely championing rights of radical communist red-necked Islamic pro-slavery Muslim fascists who beat women all day and whip children whenever they get the opportunity. Thoughts are just not what cuts it nor does advocacy or mistaken belief, but Guantanomo Bay camp is stuffed with 'suspected' improper thinkers. Most of whom are just poor folks who do not know better, and -- now have no reason to believe better. These sorry souls are having their thoughts analyzed in a context that they simply do not comprehend.

And, Marbury was a political decision too, lest we forget.

It is due to this formula based judicial analysis that courts have to cut short the adorable word games and look at substance over form. That is how equity became necessary to deliver justice as legal stuff did not cut it.

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.

Freder Frederson said...

Any thoughts on how the Circuit court will deal with this travesty?

Which travesty do you mean. The travesty of the decision (and it was a poorly written decision, I'll give you that), or the travesty that is this Administration's treatment of the Constitution, the Congress, the Courts, the American people, the military and the rule of law? If you mean the latter, I agree with you 100%.

Under Ann's standard's the issues will never be addressed because no one will ever have standing because the president will never will reveal who is a subject of tapping--even at trial. It is the perfect Catch-22. The program is too secret to be revealed in court therefore the court can never decide whether it is legal.

A country that has secret laws, secret prisons, conducts secret interrogations, has a president that claims his decisions are not subject to independent review, and kidnaps and tortures peoples can no longer be considered either free or a democracy.

Dr. Limerick said...

It's only activism when the judge fails to favor of war, privilege or wealth.

Paul Zrimsek said...

Federal Judges are elected to uphold that.

Judge Taylor has got some first-rate legal minds in her corner.

Scott Wright said...

Dear Ms. Althouse,

I am a practicing lawyer, and I would be curious what the briefing on the issues looked like. In my experience, a busy trial court judge would tend to follow the form, structure, and case law from the legal briefs. I am not sure that it is fair to criticize the judge's legal writing and reasoning skills without a detailed analysis of the briefs, as well. The judge of course could have punted, like others have done. She at least did the right thing with so important a decision and ruled against it, in order to push this up the appeal process. If she had ordered a stay regardless of an appeal, then I think your main criticism would be more justified. As I understand it, she did not do that.

Freder Frederson said...

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

The answer to that is that over the last five years the president has proven himself over and over to be a liar, purposefully deceptive, seriously deluded, or completely ignorant on any number of issues, including this one (remember when asked directly about wiretaps he said they required a warrant), so the question should be why should we trust the word of the president about anything?

altoids1306 said...

You should have a regular column!

joaquín said...

Yes, applaud the tyrant and defend him from the American Justice system. Traitor.

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.

pseudonymous in NC said...

Folks. Ann is not arguing that the Court was wrong. She is arguing that it did a terrible job of judging.

And the defendents made a terrible job of litigating the case. It takes three to tango in court.

How about a sporting analogy: the officiating matters most in a tight game between matched sides, where a blown call can crucially influence the result. Althouse's argument is essentially that a few bum calls negates a 42-0 blowout, and because of that, the defeated side has the right to decide who really won.

woof22 said...

The answer to that is that over the last five years the president has proven himself over and over to be a liar, purposefully deceptive, seriously deluded, or completely ignorant on any number of issues, including this one (remember when asked directly about wiretaps he said they required a warrant), so the question should be why should we trust the word of the president about anything?

David said...

I am a layperson when it comes to matters of law. My experience with judges and lawyers has been strictly in courtrooms as a juror and trying to live corporate life under EEOC rules written by lawyers.

Given those credentials, or lack thereof, I find it predictable and disheartening that most discussions of this type lack any reference at all to the context from which the debate arises.

We are at war with an implacable enemy that wishes the destruction of our way of life. Worst case scenario is a discussion of this type in 10-20 years involving Shari-a law just before goons shut down the internet and close the newspapers!

Where is the outrage after 9/11? I am all for discussing discreet details in Constitutional law as an academic exercise. Is it not possible to temper our results with a nod to the real and present danger that threatens us?

Ms. Althouse, I congratulate you on a well written op-ed that is notable for its concise and interesting presentation.

Thank you!

Ace said...

The answer to that is that over the last five years the president has proven himself over and over to be a liar

You can't name a single lie the President allegedly told.

or completely ignorant on any number of issues, including this one (remember when asked directly about wiretaps he said they required a warrant),

Um, they do. That is a factually correct statement.

You, ignorant, are assuming without evidence the TSP is "wiretapping."

so the question should be why should we trust the word of the president about anything?


As if this is some sort of serious question.

Look in the mirror, champ.

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.

jsmdlawyer 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.

Ace said...

The disagreement is not with the result, which, most if not all of us, know is required to restore belief in division of powers.

Um, it is with the result.

To be clear:
Judge Taylor does not have the authority under our system of Constituional goverance to halt this program.

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.

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?

woof22 said...

The answer to that is that over the last five years the president has proven himself over and over to be a liar, purposefully deceptive, seriously deluded, or completely ignorant on any number of issues, including this one (remember when asked directly about wiretaps he said they required a warrant), so the question should be why should we trust the word of the president about anything?


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

You have obviously very little critical thinking skills and you have adopted the left's technique of calling everything you disagree with a lie. For example, his reference to wiretaps was about other efforts entirely. Despite the left-stream media's efforts, most Americans do not agree with you.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

A country that has secret laws, secret prisons, conducts secret interrogations, has a president that claims his decisions are not subject to independent review, and kidnaps and tortures peoples can no longer be considered either free or a democracy.

That may be countries without secrets in Utopian Erewhon, but in the world we live in every country has secrets that it keeps to meet the threats that in the dangerous world around it. Most people do not know that the very first budget passed by Congress gave George Washington a secret budget for espionage and diplomacy. That is the way the great game is played. Try to get in contact with the reality around you, it will be less psychically painful than the life of denial you now live.

Your rant about secret prisons is not supported (they were not found in Europe) torture (oh, we gave them cold food!!!!) is priceless! Way to go!

RogerA said...

Wow--your appearance in the NYT seems to have attracted a whole new bunch of commenters! Certainly makes for more diversity of opinion. Reading the concerns about the abuses of executive power always suggest to me how little many otherwise intelligent people know about, say, President's Lincoln's actions during the civil war or Andrew Jackson's views regarding enforcing Supreme Court decisions. But that is apparently musty old history.

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.

Christopher 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.

Pogo 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.

Doyle said...

RogerA -

Excellent point! Because civil liberties have been suspended previously, there must not be anything wrong with illegal surveillance!

Ace said...

just petulance and outrage and antipathy toward President Bush.

They are the party of hate afterall.

Remember, you're dealing with not terribly bright people, so their governing political philosophy is unlikely to be that sophisticated.

SippicanCottage said...
This comment has been removed by the author.
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.

RogerA said...

Doyle--you inferred a heck of a lot more from my short comment than I meant. Where did I make the argument that you suggest?

It does seem to me that there is a much larger, and very serious argument surrounding the trade off between civil liberties and national security in extraordinary times. When the three branches of goverment might be at loggerheads, then political solutions become relevant.

SteveR 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.

Freder Frederson said...

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?


Shame on you, you are raising irrelevant points (the Clinton issue wasn't covered by FISA) and making things up (the FISA court has not ruled on this program and said it is okay).

You should remove your post as it is completely deceptive.

PatCA 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.

Mack said...

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?) 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.

Well, that kind of entirely misses the point, doesn't it? The point, of course, is that his claims to legal authority are wildly unsupported. His claim is that he, as "commander in chief," is entitled to do, well, basically anything. I'd say there are many problems with this. 1. The Constitution makes him commander in chief of the military, not of the country. 2. The Constitution clearly does not contemplate a "commander in chief" going around doing whatever he thinks is necessary for national secutiry without any checks and balances. 3. His whole premise is extremely offensive to the constitution, and really does suggest that he thinks of himself as something like a King, with his broad implied "Article II powers."

No, the point isn't about heredity, but who said it was? It's about a guy who clearly just doesn't really care about constitutional or legal justifications.

I mean, you say yourself that anyone can come up with a legal-sounding argument, but fault Taylor for failing to even try. But have you seen the arguments put forth by the Bush administration? They're not exactly shy; their "legal" argument is really that because he's president, George Bush basically just gets to do this kind of thing. If that's not claiming to be above the law, I really don't know what could be.

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."

dick said...

I read these things about how the president is doing all this spying that the plaintiffs think he is doing - think, not know.

Take a different tack. Let the government sue the plaintiffs here on the basis that they think but cannot prove that the plaintiffs are spying. Any bets on what the court decision would be in that case?

That is essentially what the plaintiffs here are charging. They have no factual basis for the suit, they cannot prove that the government is in fact tapping them at all.

Whose word would you take in the two cases mentioned here - the plaintiff vs the govt where the government is accused without proof of something and the govt vs the plaintiff where the plaintiff is accused without proof of something. The results in both cases if true could be a real mess. Strikes me that both cases are analogous.

Kirk Parker said...

Nittacci,

Regarding getting warrants, are you really so uninformed as to think that FISA could possibly keep up with such requests? That it takes weeks of work to prepare and grant a single such request? I'm not suggesting that pragmatic considerations mean we must allow the TSP program, but conversely holding the FISA warrants must be obtained does make the program impossible to actually execute.

ad3pt,

Yes, indeed, "Federal Judges are elected to uphold [the freedoms guaranteed in the Constitution.]" Are you claiming that, ipso facto, everything they do actually achieves that?

David said...

Doyle:

It is obvious that I have a more lenient view of Article II powers than you do. Fair Enough.

If the the President and his staff push the limits of power in the prosecution of the war, more power to them. The opportunities that arise in the context of eavesdropping, etc. may be a secret to the likes of you and me but not to the oversight committees whose duties require that the President report secretly to them.

What you appear to be saying is that you don't trust our President, and by extension, authority.

The President should be given the benefit of the doubt in cases such as this. The left, including the Judge in this case, act as if the President is on an endless quest for a coup d'etat in the U.S.

BigDirigible said...

That thing in the Times illustration is supposed to be a microphone?

Those lines spraying out the back make it look like the illustrator had something more like a megaphone in mind. Microphones have wires trailing out their butt ends. But it doesn't look much like a megaphone either.

Of course, on critical examination, the figure holding the mystery object doesn't look all that much like a judge. So at least the whole is consistent, albeit mysterious.

Icepick said...

Sippican, it could have been worse. They could have been Curly Joe fans.

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.

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)

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!"

Ace said...

I'd say there are many problems with this. 1. The Constitution makes him commander in chief of the military, not of the country.

Yes, and he's charged with protecting the country.
To wit:

T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because “[i]t is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation,” Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964))


And:
“The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II., § 2. His authority to . . . control access to information bearing on national security . . . flows primarily from this constitutional investment of power . . . and exists quite apart from any explicit congressional grant. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.");
-Department of the Navy v. Egan, 484 U.S. 518, 527 (1988)




Your next silly comment:

. The Constitution clearly does not contemplate a "commander in chief" going around doing whatever he thinks is necessary for national secutiry without any checks and balances

Was this before or after the Admin briefed Congress on the program?
Or before or after the Bush Admin obtained over 5,000 FISA warrants?

3. His whole premise is extremely offensive to the constitution, and really does suggest that he thinks of himself as something like a King, with his broad implied "Article II powers."


Your lack of knowledge about this issue is offensive.

I refer you to this:
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.).


In summary, your comments don't have a factual or legal basis.

I'd refer you to the Clinton Admin making these arguments, but why bother?

SteveR 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.

Ace said...

From the foregoing, one could conclude that the responsibility for protecting America from attack is really Congress’s.

You would then be an idiot.

Which you're obviously steam rolling toward, big Itch.

little heroes said...

Wow, the end of your op is a real kicker there, Ann:

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president?

You mean, besides Marbury v. Madison and over 200 years of constitutional doctrine on the separation of powers? Until some other court rules, Taylor's opinion IS the law of the land. Right, Ann? Don't you cover that on the first day of Con Law I? Or is that only in non-Wisconsin law schools?

I feel sad for your students. Actually, I feel sad for you. Bring out that "sledgehammer." Show us why we should get rid of the concept of judicial supremacy in the interpretation of law because you think an opinion is poorly written.

Should be full of awesome.

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.

SippicanCottage said...

Icepick- I would have said Curly-Joe DeRita, but that would have been plain mean, however accurate.

Ace said...

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.


Really?

If it is "well established" why did Judge Taylor turn precedent on it's head?

I love hearing you, non-military, non-law enforcement person talk about "minor nuisance."
Um, how would you know?

Further, how well did that work out on 9/11/2001?

RogerA said...

Hi Doyle: we may have come full circle! you said: 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."

but my point was meant to be there is historical precedent where courts have not intervened in what are political decisions; and there are historical incidents where the executive has effectively run rough shod over the judicial--Again, my basic point is the these situations can have arisen in exceptional circumstances--we may disagree on what exceptional means; but I dont think we can ignore historical precedents easily. Somehow I feel we may not agree on this, but I do appreciate your view.

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

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.

Disgustipated said...

Ann:

In regards to the actual substance of your "piece," it seems readily apparent that you did not actually read the DoJ's briefs. In my opinion, there is no way that the points you make could be based on a complete knowledge and understanding of the posture, motions, and arguments presented. However, given that I find it utterly distasteful to make such assertion with only an incomplete (or absent) understanding of the determinative issues involved (lest I end up looking an insufferable fool), please allow me to ask very simply:

Did you actually read the entire opinion and briefs submitted in their entirety before you constructed your analysis????

Honestly????

Ruth Anne Adams said...

Crisp!

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.

John in Nashville said...

Let's see now. John Marshall got judicial review wrong, and George W. Doofus gets it right. Yeah, sure.

Judge Taylor's order has its shortcomings, but in fairness, by refusing to brief the merits of the substantive issues, the Department of Justice may as well have walked into court wearing a sandwich board sign bearing the message, "Please bench-slap us."

Appellate review will be de novo on the record with no presumption of correctness, as to the questions of standing and, should the appellate court find that the Plaintiffs have standing, as to the merits as well.

The most important aspect of the ruling, IMO, is that the administration has assiduously avoided judicial review of the warrantless wiretap program, despite the well-established Fourth Amendment presumption that a warrantless search or seizure is constitutionally unreasonable. Now that a merits decision has been rendered, the DOJ adheres to that position at its peril.

Judge Taylor has effectively, if not elegantly, played Toto to George W's Oz. The administration is not in Kansas anymore, and the yellow prick road doesn't lead to Cincinnati.

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.

Disgustipated said...

Mr. Hayden:

Q: Did you read the DoJ brief or someone else's discussion of it?

Q: Do you have actual knowledge of the arguments presented and procedural posture behind the opinion, or have you just read second-hand comments and analyses?

My Guess: the latter. . . but once again I have to ask.

Disgustipated said...

Bruce:

(a) So I assume the answer is no.

(b) The DoJ brief is available at the ACLU website. Other documents may be as well.

http://www.aclu.org/pdfs/safefree/nsa_govt_motion_dismiss.pdf

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.

Pogo 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.

Seven Machos said...

Parsing the goofy criticisms #1:

"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?" -- This is fine and good. Reasonable questions all.

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)." Here is where the comment takes the bizarre left turn. So it would be okay with you if, say, a really smart president like Clinton (or Nixon) were to eavesdrop on terrorists? Is that your argument? Or are you hedging so that when (if) a Democrat ever becomes president, you can drop this charade and get serious about fighting Islamic radicalism?

Mack said...

Ace,

1. What are you quoting from? Your quotation about the president having "responsibility over all matters within the executive branch that bear on national defense and foreign affairs" is not from the source you cite it to.

2. Your quotes are entirely non responsive. Yes, the president has responsibility over the executive. Yes, the president is commander in chief of the military. To make him commander in chief of our entire country, though, such that he has power to do anything that he deems to be in national security interests, is to completely rewrite his constitutional role, and turn him into something very much like a King. This is not what our framers wanted.

3. On the one hand, you seem to be saying that Bush has implied authority to do absolutely anything in the name of national security, and apparently also to wiretap anybody without any restraints if that's his aim. On the other hand, you point to Bush having secured 5000 FISA warrant, and having briefed Congress on the issues. So which is it? Does Bush have unlimited power or doesn't he? If he does, why does it matter that he got some warrants or briefed Congress? Apparently, you think he can do whatever the hell he wants anyway.

If you're going to call me ignorant, you could at least respond to what I say.

Seven Machos said...

Parsing the goofy criticisms #2:

"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."

Federal judges are not elected. Would that they were, or that they had terms of office, to be renewed only by a majority of both houses of the legislature.

Disgustipated said...

Pogo:

"Smarter people than I have mocked it. That's enough for me."

Oh dear. . .

Um. . .

I suspect I am smarter than you as well . . . and I am mocking you as I type. Is that enough for you??????

At the very least, I hope it is snarky enough for your you?????

Good luck with that ignorance things. . .I am leaving . . . genuinely disgustipated . . .in search of informed dialogue.

PatCA 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.

Seven Machos said...

Parsing the goofy criticisms #3:

"A country that has secret laws, secret prisons, conducts secret interrogations, has a president that claims his decisions are not subject to independent review, and kidnaps and tortures peoples can no longer be considered either free or a democracy."

1. Then the country wasn't very free during the Civil War, or World War I, or World War II, or the Cold War, or during the time of the Alien and Sedition Act, was it? When, exactly, under this characterization, has the USA ever been free?

2. You obviously do not understand the meaning of the word "democracy." It simply means that some public officials will be selected by majority vote.

Disgustipated said...

Pogo:

". . .Smarter people than I have mocked it. That's enough for me."

Oh my. . .

Um. . .

Pogo, I suspect I am much smarter than you. . . and I am mocking you right now as I type. Is that enough for you as well??????

At the very least, is that snarky enough????

I am leaving. . . genuinely disgustipated. . . in search of an actual informed discussion.

Good Luck . . .be careful, Pogo.

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.

Roland said...

I'm with Greenwald. Poor work, Althouse. rze

Pogo said...

Re: "in search of informed dialogue"

Good luck, Disgustipated.

And remember, just posting once is usually sufficient, especially for people smarter than me.

Seven Machos said...

John in Nashville -- I will bet you $100 that this ruling does not stand, in principle or in reasoning.

Disgustipated said...

Pogo:

In the event you were joking. . . .hilarious!

In fact, I will just assume you were because it is much less disconcerting than to think otherwise.

Bravo!

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).

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.

Seven Machos said...

hdhouse -- We have an expression in law: "a lot of people who can't cut it in law because they can't read real well can make a respectable career for themselves in advertising."

Not pithy, I know. But that's what we say.

Gerry said...

Boy, Harold House and hdhouse sure have some similarities. Be that as it may...

Some of the comments on this thread are simply jaw dropping.

Good piece, Ann. The thread? Not so much.

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.

Freder Frederson said...

Is the FISA Act even Constitutional?

Well, if the Administration thinks it isn't, they should make that claim. They are apparently afraid to, probably because they know that it probably isn't and if they claimed it was and lost all their claims that the NSA program was legal would look even more ridiculous.

Right now their claim doesn't even make sense. They don't have to go through FISA because the AUMF gives them all the authority they need (eventhough FISA explicitly contemplates the need to use the statute during wartime and eventhough the AUMF falls short of declaration of war).

But we have to give the president's circular reasoning and disingenuousness because we have to do otherwise would reveal state secrets.

Ace said...

Ace,

1. What are you quoting from? Your quotation about the president having "responsibility over all matters within the executive branch that bear on national defense and foreign affairs" is not from the source you cite it to.


I'm quoting from Clinton's DOJ

2. Your quotes are entirely non responsive. Yes, the president has responsibility over the executive.

Really?
So facts you don't like - The President is responsible for the defense of the nation are "non responsive."

Hilarious.

To make him commander in chief of our entire country, though, such that he has power to do anything that he deems to be in national security interests, is to completely rewrite his constitutional role, and turn him into something very much like a King. This is not what our framers wanted.


Nobody
Is
Arguing
This

You must create a strawman because the facts aren't on your side.


3. On the one hand, you seem to be saying that Bush has implied authority to do absolutely anything in the name of national security

Never said.

On the other hand, you point to Bush having secured 5000 FISA warrant, and having briefed Congress on the issues.

Those are facts refuting your silly and false talking points.


If you're going to call me ignorant, you could at least respond to what I say.


You mean other than refuting everything you said?

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.

Seven Machos said...

Freder -- You are hopelessly confused. What do you think the United States is arguing? Also, part of the problem is that the judge basically made a substantive ruling on the completely procedural issue of standing.

The judge has been criticized by virtually every notable constitutional scholar for its circular reasoning. Yet you are calling the administration's arguments circular. Strange.

Ace said...

and turn him into something very much like a King.

This is supposed to be "substance" for self-styled "smart" people.

This isn't an argument.

Marghlar said...

Ack. There is a LOT of ranting on this page. I tried to read through it all before commenting, but I couldn't take it after about halfway. So, if I repeat someone else, I apologize.

---

I keep seeing people saying that the District Court's opinion's total shallowness in dealing with complex areas of law is justified because a defendant failed to brief these issues adequately.

News flash, folks. A competent judge always does independent legal research, especially when dealing with a case of this magnitude. I've worked in a judge's chambers, and I can assure all of you that when I was drafting an opinion, it was assumed by all that I would not only verify the parties' arguments by looking at their cited cases, I would do independent research to see what they were leaving out. This was a UNIVERSAL practice, even in cases that were pretty routine, and is just a central part of competent judging.

It's different from whether a party has waived an affirmative defense by failing to raise it. What we have here is a judge giving astonishingly shallow analysis to the plaintiff's claims, which she is required to scrutinize, even if the defendant does a bad job of the briefing. Any other approach leaves the quality of justice subject to the quality of a party's counsel.

Bad briefing isn't an excuse for bad judging. It does make it harder for the judge to do a good job, but it doesn't make it impossible.

Seven Machos said...

Marghlar -- It's difficult to know where you are coming from based on that post. But you are a reasonable guy. You have to admit that this opinion is poorly written and did not result from competence or a whole lot of "independent legal research."

We both know this opinion is going to get obliterated at the appellate level and, if necessary, at the Supreme Court level.

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*.

Synova said...
This comment has been removed by a blog administrator.
Marghlar said...

Seven: what I was saying is that I think this opinion is wretched, and I think it is no excuse to blame the government's briefs for the opinion's failures of analysis. The point I was trying to make is that it is a universal practice in well-run chambers to independently determine the content of the law before ruling on important issues.

The District Court clearly seems to have shirked this duty, given that it just failed to go through the necessary analysis to reach its result. The First and Fourth Amendment holdings are beyond conclusory -- they don't even begin to parse key precedent in important ways.

So, if it wasn't clear the first time around, I was suggesting that the Judge failed to live up to her responsibility to do her own legal work. And the result is this worthless opinion. I'm not sure whether or not she should have reached the merits (if she had, I think there is a good case that FISA is being violated, and that her constitutional holdings are garbage). But I am in total agreement with Ann that her approach was a blatant disregard of proper judicial methodology.

Ace said...

To make him commander in chief of our entire country, though, such that he has power to do anything that he deems to be in national security interests, is to completely rewrite his constitutional role, and turn him into something very much like a King. This is not what our framers wanted.


Ok.
Please read:
This (Clinton Admin on signing statements)

This (Clinton Admin - President's decision to decline to execute statutory provisions that the President believes are unconstitutional)

This (Clinton DOJ - 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 )

Add this into the mix:
If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”


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

–United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984).



And square your over the top commentary with it.

Doyle said...

Ms. Althouse appears to be flying blind...

http://glenngreenwald.blogspot.com/2006/08/ann-althouse-nyt-legal-expert-on-case.html

Freder Frederson said...

What do you think the United States is arguing?

That the program is so secret, that revealing the details of the program to the court would be a threat to National Security, therefore the court should dismiss the case on National Security Grounds. Oh yeah, and if you don't buy that, the plaintiffs bringing this case don't have standing to sue because we're not actually tapping their phones

But if we were tapping their phones, we wouldn't tell you anyway because the program is so secret that to reveal that we were tapping their phones would comprimise national security, so the case should then be dismissed on national security grounds.

What did you think the government was arguing?

They have never claimed that FISA is unconstitutional, only that it doesn't apply to this program. Their arguments for that are weak and make very little sense especially if you bother to read FISA.

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.

DCLaw1 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.

Pogo said...

Glenn Greenwald is soooo cute when he gets all jealous and junk. You could just pinch him.

RogerA said...

Very interesting to compare, say Mr Greenwald's thread, Mr Lindgren's thread on Volokh, and this thread; Then, of course, informative also to compare the credentials of Mr. Greenwald, Mr. Lindgren and Ms. Althouse--Having done that, I ask myself who of this trio of lawyers would I want representing me. And I didnt even try firedoglake or talkleft! the mind boggles.

Brendan said...

Critics like to invoke "fake but accurate" as an apt analogy for what transpired here, but a more appropriate one might be "show your work." Judge Taylor didn't.

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.

Joe said...

Getting on this thread late, and no time to read all the comments, but: nice work, Ann. The blond lady shows the Gray lady what's what.

Seven Machos said...

You are right, hdhouse. Lawyers are idiots, especially Ann Althouse, the only profssor in the whole wide world who has criticized the reasoning of this decision.

Also, speaking of rarefied air: advertising, baby. You are one of the six lucky ones to have a position in that industry of intellectual giants, huh.

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.

Mike said...

"Greenwald is angry..."

What's new?

Doyle said...

I see Ann was made "Wanker of the Day" by Atrios.

Huzzah!

Doyle said...

Good one Mike!

He's also right.

Seven Machos said...

I'd like to make a point about columnists. The fact is: every blogger is a columnist, and every day they write for public consumption and whatever income their blogs generate. And it's awesome. It's a lot purer than writing for a big corporation and its editors.

To all aspiring columnists: there are no more columnists. Columnism is so over, a quaint thing of the 20th Century. Get a blog.

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?

Seven Machos said...

Doyle -- Please point me to the part where the virulent rightwing conservative Ann Althouse apologized for President Bush in her op-ed.

Mike said...

"He's also right."

Not so much.

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.

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.

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?

Seven Machos said...

Doyle - The opinion definitively "deserves more scorn than praise." This is why virtually every constitutional scholar of every political stripe is heaping scorn upon it, not praise.

I love you crazy lefties, man. The people are either with you, towing the party line, or with the evil Republicans. Not much has changed since you were straight-up Stalinists and fellow travelers, has it?

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.

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

Mack said...

Ace,

1. Either you're smarter than me, in which case it's not nice to be insulting, or you're dumber than me, in which case your insults are going to look pretty silly. Why not just skip the insults?

2. You're not saying that the president has unlimited power in the name of national security? Then who checks that power? The reason I took you to be advocating this position was your quotation: "[T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information." Now, I read this to mean that the President has responsibility over the executive, which is of course obvious. Since you thought it was relevant, though, I'm assuming you were using it to approve something more. Were you not?

3. I said your quotes were non responsive because they were. They suggest that national security is important, and that the president has inherent authority regarding national security, and that congress may not take away that inherent authority. What they don't say, however, is what the extent of that authority is, and whether it allows the president to engage in any amount of warrantless wiretapping that he wants. And if they don't say that, then they simply don't resolve the question, which I think is something that most reasonable people recognize.

This makes it a novel constitutional question: How much inherent power does the president have? Clearly Bush thinks it's an awful lot, and I strongly disagree. Why? Because I don't think it's healthy for a single executive to have that much power to simply decide what's best for the country. I don't trust a single executive with that much power, and I don't think our constitutional framers did either. In fact, I think that makes him much more like a king than a president, and I think that's a bad thing.

Why is this relevant? Because our constitutional framers were extremely conscious of the problem with an overly-powerful executive, and were extremely cautious not to create something that in any way resembled their old King George. In case you weren't aware, this is why Bush's critics so often refer to the "king" analogy, because it's a reminder of how ignorant and belligerent this president is to his historic Constitutional role.

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

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.

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.

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).

Seven Machos said...

SmedleyUnderfoot: Where is the outcry from Congress (or the public) to stop eavesdropping on terrorists? You'd think legislators and the people would be outraged.

Also, Andrew Jackson was a great American president. The fact that you despise him merely suggests that you are an egghead elitist.

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 . . .

RogerA said...

Smedley! We don't agree that Jackson was a nutcase; considering that Democrats always celebrate Jefferson/Jackson day dinners, I figured the Dems must somehow admire ole Hickory. I for one like his ability to tell the Chief Justice to pack sand--but thats just me. And the issue of ex post facto legislation to make Lincoln correct! That rather makes my point that when you have enough political power behind you, other things fall into place.

Again, however, I am NOT suggesting that civil rights should be jettisoned; I am only suggesting that civil rights might come into conflict with other dicta of national security during "extraordinary circumstances." The only way, it seems to me that position can be abandoned is to assert that individual civil rights always trump issues of national security. Or did I miss something? I am always leery of absolutist positions--on either side of the political question.

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.

Seven Machos said...

Various apologizers for this wretched attempt at a district court opinion -- This mishmash of circular reasoning and snark is going to get oblierated, whether the ultimate result is upheld or not. Why can't you simply admit that?

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.

RogerA said...

Off Topic, but considering this thread has apparently attracted more lawyers than a air plane crash site, can someone explain to me this issue of precedent; to wit: Isnt Marbury v Madison a precedent? and could not (notice I said could and not would) some future court overturn that precedent? Or similarly the question of judicial review could be overturned by a constitutional amendment?
Thanks in advance.

Seven Machos said...

That's a tall order, Roger.

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.

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.

Seven Machos said...

Yes, Smedley, because we have no soldiers in Japan now and certainly haven't had them there by the thousands since 1945.

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.

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?

johnstodderinexile 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.

Seven Machos said...

"persons, houses, papers, and effects"

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

You defenders of the civil rights of terrorists are in a real bind as I see it. Jonah Goldberg has a great column on this. You want a "living" Constitution, right? Things change; people change; interest rates fluctuate. Right? The law has to change to address the new realities of the world. That's the defense for the penumbra of abortion and all manner of asinine judicial legislation.

Well, okay. 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.

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.

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

Seven Machos said...

Anything could be overturned by Constitutional amendment. Except that every State will always have two senators.

gj said...

Ann, you can put me down as at least one person who agrees with the outcome of the case but who understood your piece. I thought it was a very appropriate point, if perhaps put a bit too subtly.

I think your rag about activist judges using carefully composed rulings to obscure their outcome-driven approach was perhaps unecessary, inflamatory and condescending, and therefore distracting from the main point. It's too easy for people to read that and have their mind click and say, "oh, she's just another right-winger accusing this judge of being an activist because she didn't like the outcome." Again, you may think that Diggs Taylor was practicing outcome-oriented judging, but as I don't think that was your main point.

Your main point, as I understood it, was that the doctrine of judicial supremacy requires that that judges take their responsibilities seriously and write serious opinions. You pointed out the irony of the judge accusing the President of ignoring his responsibilities, even as she was ignoring hers.

Oh, and some people probably thought you disagreed with Marbury v Madison, because you didn't defend it immediately and strongly enough (albeit with the qualification that it requires careful handling by judges).

Cedarford said...

From John in Nashville:

despite the well-established Fourth Amendment presumption that a warrantless search or seizure is constitutionally unreasonable.


Perhaps the worst understanding of the reasonable and unreasonable criteria of 4th Amendment search standards I have ever read.

Does John understand that reasonable warrantless searches happen all the time? That they cover everything from Fire Marshall inspections to Coast Guard random boardings of recreational fisherman's boats? There are some 47 areas of exception to requiring a warrant for what the Courts have determined and legislatures have put into statute are "reasonable warrantless searches". Has he ever been through Customs?

Does he understand Customs applies equally to citizen and non-citizen, and obviously Customs could not do their job if each person or item inspected from a separate party had to have a judicial warrant in order to search??

For 220 years, Customs practice has established that the national interest requires every person or thing entering the United States be searched if judged necessary. People, baggage, mail packages and suspicious envelopes. Even information - I had my laptop and two DVDs looked at because I was "picked" based on who knows??? My Red Sox ballcap, the fact I was in Malaysia on business? The basis is twofold - economics (if we have duty fees and tariffs in place) and security (we do not want harmful people, contraband, even data/info entering our country).

Judge Taylor was a lamentable choice to weigh in on FISA, which from it's start even Carter protested, and Congress acknowledged, had potential to set off a Constitutional Crisis if it was used to encroach on legitimate Presidential Article II powers that cannot be taken away by Congress simply enacting statutes.

My own view of looking to detect terrorist communications is no different than Customs and Coast Guard security work.

John in Nashville no doubt thinks it is a good thing that we caught an Islamic combat team member trying to smuggle explosives into the USA for Millenium bombings. Or that we caught several terrorists at Customs and deported them. Or would be happy if a mail package coming in from Yemen was inspected without warrant and stopped 2 gallons of a nerve gas precursor from getting to Dearborn, Michigan.

I fail to see if any person, person's effects, or mail item cannot be monitored and searched if need be w/o warrant, w/o even the person affected by the searches direct knowledge ---why money wire transfers or emails or phone calls are of some "higher privacy" right entering our country than a person's body, mail, or laptop are.

If you think Customs is OK and necessary, then you really have no commonsense argument outside FISA why all electronic communications entering the USA are to be totally unsearched and private unless a judge finds probable cause. (and FISA law, every President, and the FISA court itself has stated deference to Article II Powers).

For that reason, I've always found the argument weak. If you say it is not "reasonable to search" without warrant communications entering the country, the next logical extension would be an end to Customs and Coast Guard searches of cargo, people and items entering our nation, unless each inspection was backed by a probable cause warrant.

The surviving people who crafted FISA back in 1978 admitted they never anticipated the explosion in electronic communications or transnational terrorism or that America would ever be vulnerable to attack by loosely bound adherents of an ideology armed with mass death weapons vs. a nation. A majority think FISA should be fixed as it was when past FISA sections were found to have contributed to failure to stop 9/11 and "patch-fixed" in 2001.

Others maintain FISA cannot be fixed in open debate because it would reveal sources and methods to the enemy as well as other top secret programs the NYTimes is unaware of or has decided to to reveal to the Islamists. That national security intercepts rightly belong in Article II Powers.

And of course, many, many out there hate Bush more than they hate declared enemies of America and who have latched onto the FISA and NSA controversy as a Matter of Partisan Faith in another Bush-Bashing tool.

RogerA said...

SM and Smedly--Thanks!

Joan said...

cutting and pasting passages from a larger piece, can lead to deliberate or inadvertent distortions

AKA "Dowdification"

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

Seven Machos said...

There is no precedent for this, Smedster. That's why it is headed straight for the Supreme Court.

Your side is going to get annihilated, albeit in a far more erudite and sophisticated opinion than this judge could apparently possibly hope to write.

Do you care to wager?

Kenny H. said...

Maybe next time you'll say something substantive about the judge's opinion.

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.

Ace said...

In case you weren't aware, this is why Bush's critics so often refer to the "king" analogy, because it's a reminder of how ignorant and belligerent this president is to his historic Constitutional role.


Um, I gave you cites to the Clinton Administration making the exact same legal arguments, abset a global war mind you, and this is your response.

And you're wondering why I'm calling you ignorant?

Seriously...

Ace said...

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.


Huh?

Katz said no such thing.

To wit:
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.


You are a liar

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