Friday, August 18, 2006
The NSA case
I am off to the gym, where I will read Judge Taylor's decision in ACLU, et. al. v. National Security Agency, et. al., the "wiretapping" case. I am now eager to see if it is as poorly reasoned as Scott, Paul and John say it is. Mr. Hinderaker is particularly crisp on the question of presidential constitutional authority:
I recall being taught as a preschooler that "just because" isn't a good argument. The only way it could get weaker is by adding a reference to Justice Jackson's dim-witted concurring opinion in Youngstown Sheet and Tube, which not one of his fellow justices was foolish enough to join in. Whenever I read that opinion I think of the song "Ebb Tide." But Presidential powers aren't a tide; they don't ebb and flow; they are as set forth in Article II of the Constitution. Congress cannot make the President's powers "ebb" by disagreeing with a Presidential action or purporting to ablosih a Presidential power, any more than the President can cause Congress's powers to "ebb" by disagreeing with a duly enacted statute. (He can, of course, veto the statute, but that is one of his prescribed powers, as is Congress's ability to override the veto.) Nor can Congress empower the President to take an otherwise unconstitutional action by agreeing with him, thereby creating a "flood tide." Nor does Congress create a fog of doubt by remaining silent in the face of a Presidential action--as Jackson absurdly asserts--regardless of whether that action is either plainly within, or plainly without, the President's constitutional authority. It would be hard to think of a sillier construct that has been taken seriously by people who should know better, and it is no surprise that a result-oriented left-wing judge would seize on Jackson's tissue of confusion to justify her preordained conclusion.
I also want to read the opinion to see if the reasoning is as atrocious as Andy McCarthy says in his must-read column this morning:
For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.
In the real system of separated powers devised by the Framers, the courts of the United States had no role — none — in defending this nation from foreign threats. That was to be the job of the president and the Congress, which is to say, the officials actually accountable to the citizens whose lives were at stake.
While Judge Taylor bleats about the need to respect “checks and balances,” the check our system has designed for national-security matters is political, not judicial. It implicates the right of all citizens collectively — the body politic — to self preservation. It is not concerned with such comparative trifles as the insatiable idio-obsessions of “activists” and gadflies — however theatrically petrified they may seem over the possibility that, for example, their “right” to shoot the breeze with Ayman Zawahiri might be “chilled” if the NSA lends its ears … along with an audience that already includes every foreign intelligence service on the planet.
The standing rules that Judge Taylor shunned are there for a reason. It is not a legalism. It is not some abstruse jurisprudential technicality that you’d an Ivy League law degree to decipher. It is about the right of the American people to govern themselves.
Courts are not there to tell us how to live and tell the other branches how to do their jobs. They are there to redress concrete injuries that directly and uniquely affect individuals. If there is a government policy — such as monitoring al Qaeda’s international communications — that affects all of us more or less the same way, that is not a legal problem. It is a political issue.
Political issues get resolved by political actors. Here, the Framers trusted Americans, not judges.... Democratic self-determination and political accountability — that is the Framers’ gift to us.
Of course, I also have to study the opinion -- between sets, of course -- to know whether I agree with the editorial board of The Washington Post:
The nation would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency's program of warrantless surveillance...
Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.
Indeed, when major newspapers use the term "not helpful" in this context, they really mean "so poorly reasoned that it will probably be reversed, which will be bad." The WaPo may mean this, but it also -- correctly -- acknowledges that the administration's arguments are not frivolous:
The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.
Of course, I have to read Judge Taylor's opinion to see if I agree with Hugh Hewitt, who believes that the decision is manna from heaven for the Republicans:
I might have to send [Judge Taylor] a thank you note myself, though not for her logic or her abuse of precedent.
Rather, the judge has triggered another great moment of clarity about the Ned Lamont Democrats (and the Jon Tester Democrats in Montana, the Debbie Stabenow Democrats in Michigan, the Maria Cantwell Democrats in Washington State, the Sherrod Brown Democrats in Ohio etc etc.) Judge Anna Diggs Taylor is a Jimmy Carter appointee, and so she's even given us a twofer today: Illustrating the vast dangers of liberals running national security, and the lasting impact of liberal presidents on national security.
And, finally, I have to read the opinion to know whether Cox & Forkum annotated the Constitution properly.
UPDATE: I will have more later, but for now consider the judicial sobriety, or lack thereof, in this bit:
Predictably, the War on Terror of this administration has produced a vast number of cases, in which the state secrets privilege has been invoked. (Opinion at 9.)
Suffice it to say that one does not need to read much further to know how Judge Taylor's opinion is going to unfold.
MORE: I must say, Judge Taylor's opinion is astonishingly shoddy. Agree with her conclusion or not, it is amazing that she produced such a thin document in such a high profile case. There are countless examples of conclusory "reasoning," and more acute lawyers than I will undoubtedly peck them to death in the next couple of days (see some of the linked stories above for a mere taste). For this equally thin and shabby post, however, one example should suffice.
The plaintiffs requested and received a permanent injunction "inasmuch as each of the factors required to be met to sustain such an injunction have indisputably been met." Judge Taylor reports the standard in a footnote:
It is well-settled that a plaintiff seeking a permanent injunction must demonstrate: (1) that it has suffered an irreparable injury; (2) that, remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. (emphasis added)
Judge Taylor does not even consider whether enjoining the NSA wiretap program might be contrary to the public interest. She simply concludes that "the public interest is clear... it is the upholding of our Constitution." Huh? Setting aside the question whether Judge Taylor is actually upholding the Constitution, I've never understood that the mere showing of a Constitutional violation disposed of the need to inquire into the public interest before the issuance of a permanent injunction. If that is true, then why wouldn't the mere showing of a violation of a statute, treaty, or applicable common law also obviate the "public interest" inquiry? Are they not also in the "public interest"? This is an example of the sort of unreasoned conclusions that are rife in this opinion.
Perhaps the trickiest conclusion from the perspective of the left is the Judge's view that the NSA program does, in fact, make life difficult for people who have an actionable connection to al Qaeda. It is necessary for her to reach this conclusion in order to justify her injunction, but it flatly contradicts the claims of leftists that the program is pointless because al Qaeda already knows about the interception of signals. Patterico is savage on this point.
In the end, I think, Hugh Hewitt is correct -- any Democrat who trumpets this decision runs the great risk that it will blow back, both before its inevitable reversal and afterwards.
19 Comments:
By 
, at
Fri Aug 18, 02:16:00 PM:
By 
tm, at
Fri Aug 18, 02:35:00 PM:
The guys from Powerline must be pretty dim. It's almost certain that Jackson's Youngstown concurrence is the standard, as any number of opinions tells us.
By , at
Fri Aug 18, 02:50:00 PM:
But...but...but the New York Times liked it, that must count for something.
By , at
Fri Aug 18, 03:33:00 PM:
Heh. Even many liberals are gagging over the blatant political nature of the decision. The links aren’t to libs, but certainly blister the stupidity of prostituting the law to political ends. Uncle Jimbo at B5 found this
http://www.madison.com/post/blogs/militarymatters/95379
Patterico has a great post at
http://patterico.com/ Don’t miss it. The whip comes down on a judicial hack.
By doctorfixit, at
Fri Aug 18, 11:23:00 PM:
I just hope Bush sends in the first team on this one and not the affirmative action hires that he used to throw the Gruttinger /Michigan cases. I hope I live to see the day that these Carter/Clinton commie judges are forced to back up their tyrannical pronouncements with whatever army they can muster to cover their fat liberal asses. The cure here is superior firepower, not more lawyers.
By Counter Trey, at
Fri Aug 18, 11:26:00 PM:
One only had to read the following sentence to understand her venom for the Bush family:
"There are no hereditary Kings in America and no powers not created by the Constitution."
By Dawnfire82, at
Fri Aug 18, 11:50:00 PM:
"While the opinion may be poorly written, one can still praise the basic conclusion of the opinion, which is that the President does not have the authority to violate laws he doesn't like."
Their whole point is that they didn't violate any laws. A host of DoD and affiliate attorneys whose entire jobs are to ensure that their respective agencies don't breach the law agree.
"That is the primary "argument" of the administration (that if Bush doesn't like FISA he doesn't have to follow it), and obviously anyone who believes in American values must be against such a proposition. Particularly since there already is a law that allows the President to eavesdrop on terrorists, and it's called FISA, the law he broke."
'Particularly since there already is a law that allows the President to eavesdrop on terrorists, and it's called FISA, the law he broke.'
Wait, what? A law allows the Executive to spy on suspected terrorists, but by doing so he broke said law? I presume that you mean by not getting warrants. Read on.
The argument goes something like: monitoring communication between a foreign terrorist group or individual and a domestic person (with the suspicion that said domestic person is a terrorist) is no different from monitoring communication between a foreign intelligence service and a domestic person (with the suspicion that said domestic person is a spy).
Go look under, "Without a Court Order": http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act
It's perfectly clear.
Additionally, the judgement *wince* did not base itself on a violation of FISA, it based itself on the 4th Amendment, and poorly, as the consensus shows. That's because FISA does not apply. The Democrats tried that already and it didn't work.
Aside, if a knock-down drag out Constitutional battle resulted from this, it's entirely possible that FISA itself would be thrown out as un-Constitutional, as might the War Powers Act. (bit of trivia from college, no administration has ever admitted to the legality of the War Powers Act because it infringes on Executive power; they just act within its boundaries to avoid political battles they don't want) The Constitution very clearly grants defense authority to the Executive and these myriad Congressional Acts are non-Constitutionally sanctioned constraints on that. A bit like the Executive trying to come up with ways to tax people by executive order.
By @whut, at
Sat Aug 19, 01:15:00 AM:
Hilger Koelsky agrees with it.
By Doug, at
Sat Aug 19, 02:13:00 AM:
Debbie Schlussel: Who's Behind ACLU Lawsuit?
They are exactly the kind of people whom the federal government SHOULD be watching, but probably isn't. One of these men admitted to funding Hezbollah, one was accused of tampering with a witness, and a third signed a document contradicting statements he made in the lawsuit. Not to mention, one of these men engaged in exactly the same "spying" (on me) that he now opposes when done by the NSA.
Their clients are no different from that of convicted Attorney Lynn Stewart's (convicted of helping the Blind cleric spread terrorist messages in Egypt), and in some cases, their behavior is far worse.
Yet, instead of monitoring them, the federal government's representatives in Detroit--including U.S. Attorney Stephen Murphy III, FBI Special Agent in Charge
Daniel Roberts,
and Immigration and Customs Enforcement Special Agent in Charge Brian Moskowitz
--have been courting them, their clients, and friends in a series of exclusive meetings.
By , at
Sat Aug 19, 02:32:00 AM:
Those that started this lawsuit are in for a big wake up call. They have to prove that their "client/customer" relationship was harmed. And to do that they are going to have to give up names as evidence. This will get very intresting. I'll bet most will back out of this lawsuit and the ACLU goes it alone.
By TigerHawk, at
Sat Aug 19, 07:37:00 AM:
WHT, who in God's name is Hilger Koelsky?
By , at
Sat Aug 19, 10:05:00 AM:
Re: Judge Taylor's decision in ACLU, et. al. v. National Security Agency, et. al.,
Plaintiffs here contend that the TSP [”Terrorist Surveillance Program”] has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations. In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients. All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.
"The plaintiff leftists are communicating with terrorists."
There, fixed that.
All of the opinions on this judicial farce seem to miss one important point. Why would a judge be so eager to reach such a conclusion so as to potentially jeopardize her career? Who is she serving? (The opinion subjects her to considerable ridicule, and deliberately ignoring precedent has been cited by some as grounds for sanctions, for example.)
Here's a good reason:
The leftist "plaintiffs" have admitted they've been communicating with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations. They know they're dirty, and they suspect or know the NSA has the goods on them and that prosecution is likely.
Having shopped for and found a friendly in-the-pocket leftist federal judge to almost whimsically and arbitrarily declare the NSA surveillance program unconstitutional, and injunctioning it to stop immediately, is about the only way for the "plaintiffs" to avoid being destroyed and going to jail.
Of course, you and I may get killed as a result, but what's a little death and destruction to good leftist malignant narcissists in their pursuit of their dreamy Marxist utopia?
It is also certainly in the Public Interest to know exactly who these "plaintiffs" were communicating with, why, what was said, and what messages they may have relayed for their "ovedrseas clients" and to whom.
By , at
Sat Aug 19, 12:27:00 PM:
TigerHawk,
Hilger Koelsky was a role played by Kevin Spacey in the movie "Usual Suspects" I hope this doesn't help. ;)
PS: Spacey does some good impressions i.e. Walter Matthau as Yoda(true)from Star Wars. I have to go my cat is gnawing on my ankle.
By , at
Sat Aug 19, 03:56:00 PM:
To understand the decision, you need to understand Anna Diggs TAylor. She is the former wife of a now deceased democrat congressman(Charles C. Diggs, jr) who was convicted of bribery(technically taking kickbacks) and whose father (Charles C. Diggs, Sr.)was also a democrat congressman who was convicted of taking bribes. She was appointed by Jimmy Carter. Her illustrious resume includes trying to rig affirmative action cases by cherry picking judges(she was/is chief judge). In short, she's just another corrupt leftist democrat who is carrying the ball for her party at the expense of the country as a whole.
By , at
Sat Aug 19, 05:05:00 PM:
I think the Spacey character was Kaiser Sosay (sp).
By Dawnfire82, at
Sat Aug 19, 05:45:00 PM:
"In other words, the President has the authority to violate any law that he thinks infringes on his power."
In short, yes, because such infringements are not legal.
"This is an authoritarian view that violates all the principles of American government, and shows the contempt in which Bush followers hold America and its values."
This betrays your ignorance of the Constitution and American history. Bush has not even BEGUN to approach the level of control held by past presidents including Lincoln (who suspended the writs of habeus corpus and authorized the arrest and trial of citizens for speaking against the war against the Confederacy) and Roosevelt (who authorized the restriction of an entire ethnicity which was suspected of loyalty to an opposing power). Both acts were, by the way, (excepting technicalities in their execution) ruled to be legal. I actually had to go and look up the law in the US Code before I bought that Roosevelt's camps were legal, but sure enough that power is in there.
"Of course that's why the "War on Terror" is a bogus concept: since terrorism, will exist forever, if the AUMF really gives the President war powers against "terrorism," then the President has extraordinary war powers forever."
Hold on. So, the President has been granted extraordinary war powers by Congress, but somehow his execution of said "extraordinary powers" is illegal and violates the laws of Congress? Again, you are self-contradictory.
To use your reasoning, since Japan will exist forever, the war against Japan was obviously bogus as well and the extraordinary control granted to Roosevelt (as I mentioned) is still in effect. What's that? It ended? How? Japan is still there! Oh right, because they ceased to be a threat to the national security we declared the war to be over. Silly me.
And, as I already said and which you obviously ignored, these powers already exist vis a vis agents of foreign powers. They have for years, for decades. They are routine, and critical in the country's collective counter-intelligence efforts. Only now they are being applied against terrorists who are, essentially, members of private organizations, not states. Terrorists who, instead of wanting to steal economic secrets or recruit defectors, want to destroy our buildings and slaughter our people. Yet you want us to believe that they don't require the same level of vigilance which has been used against foreign intelligence services? That's assinine.
"which is why sane liberals and conservatives -- George Will, for example -- understand that terrorism is in fact a law-enforcement issue."
Also show me a law enforcement agency that is capable of meeting 4 or 500 jihadists armed with anti-tank weapons and machine guns. How about one who can psychically read the minds of foreign-based terrorists and predict when they are going to enter our country to kill us? Or even one who is able to detect, crack, and translate encrypted electronic traffic fast enough to act on it?
There are none, which is why we started using the military and covert agencies. We tried the law enforcement approach for 20 years ('79-'01) and all it got us was thousands of dead Americans. But obviously, that's what the 'sane' people want. Way to go.
By Assistant Village Idiot, at
Sat Aug 19, 06:44:00 PM:
M.A. said "one of the most hilarious things about the Bush cultists like Hewitt is that they assume that there is only negative blowback for opposing the President's authoritarian policies, never for unquestioningly supporting them." (italics mine)
For those of you who were hoping to have a discussion, instead of yawning through a diatribe, you knew to stop reading right there.
By , at
Sun Aug 20, 02:28:00 AM:
Joining other Democrats like Feingold and Reid who have gleefully jumped on Judge Taylor’s NSA decision, is Congressman Rob Andrews of New Jersey, in some ways an unlikely candidate for bowing and scraping to the far left. But he dutifully posted a Press Release Friday on Politicsnj.com, an “insider” New Jersey political website.
However, it looks like Congressman Andrews really jumped the shark on this one, right along with the New York Times.
The paper trashed the usual order of priority in truly Alice in Wonderland fashion, first by publishing a gushing editorial, and only then following it up today with a more careful analysis
Well, there you have it, folks . . . "First the sentence, then the verdict."
Whoops! Now, even the gray lady is looking more than a little ashen when it comes to this ridiculous decision.
As was reported in the first few graphs of today's (August 19th) story by Adam Liptak, "Experts Fault Reasoning in Surveillance Decision,"
"Even legal experts who agreed with a federal judge's conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision's reasoning and rhetoric yesterday.
They said the opinion overlooked important precedents, failed to engage the government's major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.
Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments."
And, in line with the suspicions of many that the decision was rushed and most likely procedurally mishandled by the Judge for less than salutary reasons, the paper also reported that:
"Some scholars speculated that Judge Taylor, of the Federal District Court in Detroit, may have rushed her decision lest the case be consolidated with several others now pending in federal court in San Francisco or moved to a specialized court in Washington as contemplated by pending legislation. Judge Taylor heard the last set of arguments in the case a little more than a month ago.
Oh well, Congressman. So what? Back to the drawing board!
Say, do you have an election coming up any time soon?
By Georg Felis, at
Mon Aug 21, 12:57:00 AM:
My interpretation of the case so far: The Government defense attorney sees the Foreign intelligence eavesdropping case go before a left-wing judge with a history, and suspects he is about to get slammed no matter what kind of case he produces, therefore he makes the absolutely most simple, straightforward case he can: The Prosecution has no standing. (Standing in legal terms roughly translates into “if you have not been hurt, you can not sue”)
Win/win on his part: If the left-wing judge is fair, she will admit the case has no standing and dismiss it. If the judge produces a wacky opinion, he can get a stay (which he did) and appeal it to a higher court, which is almost guaranteed to bounce the case based on standing. With this strategy, the Defense does not have to reveal any details about the program, who is doing the watching, or who is being watched. Which leads me to a sentence I do not use often: The Government lawyer was brilliant. And another statement I use far too often: The Carter appointee is an idiot.
