Another Terrible Op-Ed on the NSA Issue

Glenn Greenwald did an effective job yesterday picking apart Ann Althouse's New York Times op-ed on the recent NSA program decision by Judge Taylor. But Althouse wasn't the only uninformed commentator given precious op-ed space in a major newspaper to rant about the decision.

James S. Robbins, a contributing editor for the National Review, recently penned this op-ed for the USA Today. It's a dreadful piece of work, clearly written by someone with little to no understanding of the relevant legal issues (or underlying facts). Indeed, Robbins is so annoyingly wrong about everything, that I feel compelled to fisk his piece line by line (thankfully it's not very long). Robbins begins:

Judge Anna Diggs Taylor's decision, if it stands, will put out
of commission a useful national security program that is no
threat to anyone who is not already threatening the United
States.

Two immediate observations. First, Robbins has no clue whose communications have actually been intercepted or whether the program is useful. He's merely taking the administration's word that only "terrorists" are being surveilled. But that can't be true. If it was, the administration would have no need to circumvent FISA. They could easily obtain warrants. This program must be casting a wider net, a net which includes a lot of non-terrorists. Second, the whole point of requiring judicial oversight is so we don't have to just take the administration's word that they are only spying on the bad guys. When the executive branch is allowed to operate without warrants and without judicial oversight, it's an invitation for abuse. We learned this the hard way.

Robbins continues:

Contrary to the hype, the administration has made no claim
of a blanket privilege to intercept phone calls or e-mails without
warrant. The NSA program applies only to international calls,
and only those intercepted while tracking known or suspected
al-Qaeda operatives.

This is just demonstrably false. The administration's publicly-stated legal position is that the president has the inherent authority to disregard FISA whenever he deems it necessary. If that's not a blanket claim of authority, I don't know what is. Just because the current program is (supposedly) limited to calls where one party is overseas, doesn't mean that the president thinks he lacks the power to do more. Quite the contrary. The administration has been quite explicit about this. Robbins continues:

Courts have traditionally shown deference to the executive
branch in determining when emergency action is needed to
defend the nation.

Indeed, that's why it's taken five years for the courts to start asserting themselves. You cannot claim perpetual emergency powers, which is exactly what the Bush administration has done. Congress has had plenty of time to contemplate how best to deal with the war on terror, and FISA, as amended by the Patriot Act, is still the law of the land.

This is especially important when fighting the agile and
adaptive enemy we face today. We cannot fight networked
terrorism with legal interpretations more suited to the days
of rotary phones and snail mail.

Oh please, all Judge Taylor did was apply the current law, as passed by Congress. FISA was overhauled in 2001 via the Patriot Act. When President Bush signed the bill into law, he said: "This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology." Rotary phones and snail mail? Please.

Robbins continues:

Taylor's decision imposes a comprehensive restriction on
the National Security Agency program, regardless of the
need for circumstances that might necessitate swift action.
It also in essence extends First Amendment privileges to
foreign terrorists living abroad, so long as they are talking
to someone in the USA. This is not only an unprecedented
interpretation of the rights of reporters, it also establishes
hitherto unimagined avenues of privileged communications
for terrorists.

This is just gibberish. The decision doesn't extend "First Amendment privileges to foreign terrorists living abroad." It just requires that the government not eavesdrop illegally on the conversations of U.S. citizens. If I invite a foreigner into my home, do I lose my right not to have my home searched without a warrant? If a judge held that I didn't lose this right, would she be extending Fourth Amendment rights to terrorists? What nonsense. As for the idea that Judge Taylor's decision would establish "avenues of privileged communications for terrorists," that's just rubbish. Any communication to which a terrorist is a party can be legally intercepted. All it takes is warrant, which is virtually always approved (and can be secured after-the-fact in secret ex parte proceedings!).

Robbins continues:

The standing of the ACLU to sue on behalf of journalists and
academics is particularly shaky ground. Rather than citing
incidents of wrongs against individuals, the court has
entertained a vague standard of injury to rights that might
not even exist. The judge established a balancing test,
weighing the importance of the information being collected
against the risk that an innocuous conversation could be
overheard. One might ask how the NSA can determine which
conversations are important before they are collected.

This is just more muddled gibberish, unworthy of a blog post much less an op-ed. The ACLU's standing argument is somewhat novel, but then again, the case law on standing is notoriously convoluted and is filled with examples of judges finding far more tenuous claims of injury to be sufficient to satisfy article III standards. Robbins concludes with this:

Judge Taylor's comparison of President Bush to a "hereditary"
king suggests an attempt to patch the holes in her substantive
argument through rhetoric. It is ironic to hear an unelected
judge with a lifetime appointment describing a term-limited
president as a monarch. This highly abstract opinion is certain
to be overturned by the 6th Circuit Court, and a good thing,
too. The safety and security of the American people weigh
more heavily in the balance than the alleged right of
journalists to freely interview terrorists.

This is a cheap jab at Judge Taylor, one that reflects an awful lot of chutzpah seeing as it's atached to the end of this trainwreck of an op-ed. And to frame this issue as being about the "right of journalists to freely interview terrorists" is about as dishonest as you can possibly get. This is about a president violating the law; nothing more, nothing less. And on that score, Judge Taylor's opinion is unquestionably correct. If the Sixth Circuit overturns her opinion, which is by no means "certain" to occur, it will not be because she was wrong on the merits. They may dismiss the case on standing or state secrets grounds, or remand it for further consideration and briefing of various issues, but they almost surely will not find that the NSA program is lawful.