On the Other Hand . . .
I haven't had any time to write so far this weekend, but I have managed to read a few posts here and there, and they've convinced me that the tone of my last post was a little too pessimistic and perhaps a bit too critical of Judge Taylor's opinion.
Though I continue to think the legal analysis in the opinion is weak, Glenn Greenwald persuasively argues that the reasoning of the case is unlikely to matter in the long run. He writes:
He adds:
Glenn also makes another important point:
It appears that the DOJ employed a deliberate strategy of saying almost nothing about the merits of the case, presumably because doing so would undermine its argument that it couldn't mount a defense without revealing state secrets. The plaintiffs, on the other hand, clearly presented lengthy arguments on the merits, many of which likely went unrebutted. One can hardly blame Judge Taylor for not grappling with arguments and case law that the government never bothered to raise.
In a post over at Balkinization, Professor Larry Tribe also offers reason for optimism:
Tribe also attempts to put things in perspective:
Finally, Jack Balkin suggests that there may be more to Judge Taylor's opinion than meets the eye. He suggests that the opinion may reflect some strategic savviness on Judge Taylor's part. His post is difficult to summarize or excerpt, but it's well worth a read.
Though I continue to think the legal analysis in the opinion is weak, Glenn Greenwald persuasively argues that the reasoning of the case is unlikely to matter in the long run. He writes:
The issue on this appeal -- on every appeal -- is: "Are the
court's conclusions correct?," not "do we agree with what
the judge said and did in reaching that conclusion?" In a
garden-variety lawsuit, a District Court opinion might have
a significant impact on persuading appellate judges, but with
issues of this magnitude, the appellate court will review the
issues from scratch, no matter the quality of the lower court
opinion. And if the Sixth Circuit concludes that the NSA
program is unconstitutional and in violation of FISA, Judge
Taylor's decision will be affirmed regardless of how pretty
or complete its analysis is.
He adds:
Look at any judicial ruling of any significance -- Youngstown,
Brown, Hamdan, Miranda, whatever one's favorite case is.
Nobody knows, remembers, or cares what the District
Court even ruled in those cases, let alone the quality of the
reasoning, because it does not matter.
Glenn also makes another important point:
The DoJ practically avoided making arguments on the merits
of the constitutional and even statutory claims, opting instead
to invoke secrecy doctrines (and standing objections) in lieu
of advancing arguments that went to the merits of the claims
in any meaningful way. It is hardly surprising -- and nobody
has any ground to complain -- that the court did not address
non-existent arguments or arguments which were made in
only the most cursory manner.
It appears that the DOJ employed a deliberate strategy of saying almost nothing about the merits of the case, presumably because doing so would undermine its argument that it couldn't mount a defense without revealing state secrets. The plaintiffs, on the other hand, clearly presented lengthy arguments on the merits, many of which likely went unrebutted. One can hardly blame Judge Taylor for not grappling with arguments and case law that the government never bothered to raise.
In a post over at Balkinization, Professor Larry Tribe also offers reason for optimism:
It's altogether too easy to make disparaging remarks about
the quality of the Taylor opinion, which seems almost to have
been written more to poke a finger in the President's eye than
to please the legal commentariat or even, alas, to impress an
appellate panel, although I certainly agree with the many who
predict that, while her reasoning is bound not to be embraced,
her bottom line is very likely to survive appellate
review.
Tribe also attempts to put things in perspective:
My point isn't that judges who play the role Judge Taylor
did should never be held to account for the shoddy quality
of their legal analysis; of course they should, especially in
the context of sober second thoughts offered in law reviews
and other scholarly venues. But it's those with constitutional
blood on their hands who deserve to be chastized most
insistently in the public press, and it seems to me something
of an indulgence to spend so much time complaining in the
media that the judge who called foul used some ill-chosen
rhetoric, and that she stuttered and sputtered a bit more
than necessary, when the principal effects might well be to
underscore one's own professional credentials and one's
cleverness and even-handedness and fair-mindedness at
the expense of distracting the general public from the far
more important conclusion that the nation's chief executive
has been guilty of a shamelessly unlawful power grab.
I may have been guilty of a little of that in my last post.
Finally, Jack Balkin suggests that there may be more to Judge Taylor's opinion than meets the eye. He suggests that the opinion may reflect some strategic savviness on Judge Taylor's part. His post is difficult to summarize or excerpt, but it's well worth a read.
posted by A.L. at 11:22 PM
21 Comments:
Well if that is what glenn says - he's now the "great decider", glad you got your circle-jerk going again. That faux "advertise liberally" circle of links wouldn't be anywhere without all the mindless links.
Keep linking to the right crowd and maybe some day you will get more than 5 visitors here, but all that circle-jerking might be hard on the ol' beefstick.
A little gem from In re Falvey, which for some reason the judge cited in her opinion:
“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”
And a bit of cautionary language from Mr. Justice Jackson concerning the scope of his Youngstown opinion:
"We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence."
Words to keep in mind as we move forward...
Thank you for answering my question as to what the appellate court would look at. I wondered whether their function was to give her a grade on her reasoning or to really look at the issue. I would hope that they uphold her decision. To me, it's a no-brainer.
One of the more bizarre assertions in this delightfully awful opinion is the following:
"[The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens."
The judge seems utterly unaware of the fact that the government may:
Detain American citizens for investigative purposes without a warrant;
Arrest American citizens, based on probable cause, without a warrant;
Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;
Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;
Conduct a warrantless search of, and seize, items belonging to American citizens if those items are displayed in plain view and that are obviously criminal or dangerous in nature;
Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;
Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;
Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;
Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;
Conduct a warrantless search of any property apparently abandoned by an American citizen;
Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;
Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;
Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;
Conduct a warrantless search of any American citizen seeking to enter a public building;
Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);
Conduct warrantless monitoring of common areas frequented by American citizens;
Conduct warrantless searches of American citizens and their vessels on the high seas;
Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;
Conduct warrantless searches of junkyards maintained by American citizens;
Conduct warrantless searches of docks maintained by American citizens;
Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;
Conduct warrantless searches of auto-repair shops operated by American citizens;
Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;
Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;
Conduct warrantless drug screening of American citizens who are school officials;
Conduct warrantless drug screening of American citizens who are school students;
Conduct warrantless searches of American citizens who are on bail, probation or parole.
The principal challenge for the Sixth Circuit upon being confronted with this turkey will be, where to begin?
Auto repair shops?!?! Holy shit, honey, you got it! You did it! The case cracker, auto repair shops! I love this! That's it!
The principal challenge for the Sixth Circuit upon being confronted with this turkey will be, where to begin?
I highly doubt that. One of two things is likely to happen on appeal. The Sixth Circuit will either 1) affirm the judgment (but probably for slightly different reasons) or 2) reverse the judgment on standing or state secrets grounds. I really doubt that the judgment will be reversed on substantive grounds. You can quibble all you want with the judge's reasoning, but she did reach the right conclusion. The NSA program is unquestionably illegal.
Let's all not feed the troll above who constantly posts this 'circle-jerk' nonsense.
I'm glad to hear that the underlying issue is the merit of the argument, and in not how it was written. These are heady days to be an American, what with the very un-American activities of this Administration finally, finally, being tempered and perhaps outlawed by those who seek to uphold what makes this country great--the rule of law.
If the program is addressed on the merits by the Sixth, it will be upheld, and the USSC will affirm, 5-4 or 6-3. In the meantime,
"As the rest of the nation ponders solutions to Iraq war troubles, progressive bloggers are also mired in their own strategic quagmire in CT. After toppling Sen. Joe Lieberman (I-CT) in the 8/8 Dem primary, progressives are finding it more difficult than anticipated to rid themselves permanently of the 18-year incumbent. Now that it's clear cable exec Ned Lamont (D-CT) faces a tough battle that threatens to drain progressive resources and attention from other races, as well as draw out GOPers in close House races, some are arguing that Lamont should be cut loose to focus on the larger war against the GOP. For now, the 'stay the course' crowd is winning the debate."
Either way they go is fine with me.
I should hedge my remarks about the outcome in the Sixth Circuit. The matter will be decided by a three-judge panel, and until one know the makeup of the panel one can't be sure there won't be an ideologue or two involved. In any event, in the Supreme Court either Justice Kennedy or Justice Breyer, or both, will join Chief Justice Roberts and Justices Scalia, Thomas and Alito in the majority holding the NSA program lawful.
in the Supreme Court either Justice Kennedy or Justice Breyer, or both, will join Chief Justice Roberts and Justices Scalia, Thomas and Alito in the majority holding the NSA program lawful.
You're not very good at reading the tea leaves. The Hamdan decision, particularly Judge Kennedy's concurring opinion, telegraphed exactly how the Court would rule if it reached the merits of the NSA program. Both Kennedy and Breyer (as well as Ginsburg, Suter, and Stevens) would find that the program is illegal. I would bet my house on it. In fact, I think the Justices framed the Hamdan opinion the way they did as a direct response to the arguments offered publicly by the administration in defense of the NSA program.
Now, it's possible that the Sixth Circuit or the Supreme Court might chicken out and find for the government on standing or state secrets grounds, thereby avoiding the merits. But there is no way that a court finds for the government on the merits. That will not happen.
I agree that the most likely outcome in the Sixth, given a panel of disinterested jurists, is a holding that the plaintiffs lack standing.
Both Kennedy and Breyer agreed in Hamdi that the AUMF granted the president the authority to detain combatants indefinitely, such detention being a normal incident to the war-making power. I believe one or both will conclude that intercepting foreign intelligence is historically incident to that power, whereas they believed that the establishment of tribunals (Hamdan) is not. I note also that, until the estimable Judge Gibbs Taylor, no court had ever held an intelligence-gathering operation unlawful during de facto wartime. I note further that the tribunals at issue in Hamdan would directly affect individuals' susceptibility to imprisonment, or even execution, whereas the program at issue in the NSA matter does neither.
P.S.--The Supreme Court doesn't "find," it "holds."
until the estimable Judge Gibbs Taylor, no court had ever held an intelligence-gathering operation unlawful during de facto wartime.
Until the estimable George W. Bush, no president engaged in intelligence-gathering that was expressly forbidden by statute.
You can make this about Judge Taylor if you want, but the vast majority of judges and legal scholars would agree with her conclusion.
I believe one or both will conclude that intercepting foreign intelligence is historically incident to that power, whereas they believed that the establishment of tribunals (Hamdan) is not.
I really doubt it. Hamdi involved the power to detain an enemy fighter on the battlefield in Afghanistan. That's the kind of power that has to be a "lesser-included" component of the power to go to war in the first place.
The NSA program, on the other hand, involves surveillance of U.S. citizens within the U.S. There's just no way that anyone in the majority in Hamdan would find that the AUMF authorizes violation of FISA. I would bet my left arm that you're wrong.
"...[T]he vast majority of judges and legal scholars would agree with her conclusion." I gather you are privy to some poll of which I am unaware--could you cite to it for us?
"But there is no way that a court finds for the government on the merits. That will not happen."
Well, here are some post-FISA tea leaves from a few courts that may give you pause:
"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], 'unduly frustrate' the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."
Truong (4th Cir. 1980)
And then, of course, there's the FISA Court of Appeal in 2002:
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
But of course, what do they know?
As to the claim that, before Bush, "no president engaged in intelligence-gathering that was expressly forbidden by statute," I really wonder how you can come up with such an assertion. Do you honestly believe that neither the OSS nor the CIA has ever engaged in violations of the statutes against, say, kidnapping or murder, not to mention wire-tapping? In any case, the issue is not whether the AUMF "authorizes violation" of FISA; the question is whether, as an enactment subsequent to FISA, it simply supersedes it where the gathering of foreign intelligence from abroad is concerned. (And, as I understand the NSA program, your characterization of it as involving "surveillance of US citizens within the U.S.," I think that's the sort of tendentious description of which the courts will make short work. As you well know, the communications in question involve only one party within the U.S.)
Finally, I think there is a great deal of authority for the proposition that gathering foreign intelligence is precisely "the kind of power that has to be a 'lesser-included' component of the power to go to war in the first place," whereas establishing tribunals (a function over which the Congress is granted fairly specific authority) is not. In short, NSA is more like Hamdi than it is like Hamdan.
And don't bother to send your left arm--I don't have much interest in it.
I forget--was the Omnibus Crime and Safe Streets Act of 1968 enacted before, or after, LBJ tapped Martin Luther King's phone? And was there a predecessor statute that would have criminalized JFK's tapping of King, or was Kennedy's conduct merely morally disgusting and reprehensible?
While holding onto your left arm, you'll no doubt want to reflect on the fact that in the Hamdi case, the Court held that the AUMF authorized indefinite detention (without ever mentioning it) notwithstanding two directly contrary and explicit federal statutes, 18 USC Section 4001(a)(no detention except per act of Congress) and 10 USC Section 810 (UCMJ speedy trial rights).
Yrmstobtsvt&c&c:
Are you John Yoo?
You cite both Truong and Sealed Case in way that reflects little understanding of them. Truong was not a post-FISA case in any meaningful sense. It was decided in 1980, but dealt with events that happened before FISA became law. And the Sealed Case was actually a decision finding FISA (as amended by the Patriot Act) constitutional. The dicta that you cite does not mean what you suggest it means, something I've explained in numerous prior posts.
As for the point about presidents deliberately violating statutes, you seem to have missed the point. The point isn't that statutes haven't been violated in the past. The point is that no previous president has claimed the authority to do so.
And, as I understand the NSA program, your characterization of it as involving "surveillance of US citizens within the U.S.," I think that's the sort of tendentious description of which the courts will make short work. As you well know, the communications in question involve only one party within the U.S.)
Yes, the NSA program intercepts calls in which one party is a U.S. citizen within the U.S. The Bush administration has admitted this. And FISA expressly forbids doing so without a warrant. What's your point?
While holding onto your left arm, you'll no doubt want to reflect on the fact that in the Hamdi case, the Court held that the AUMF authorized indefinite detention (without ever mentioning it) notwithstanding two directly contrary and explicit federal statutes.
I've read the Hamdi case backwards and forwards and it isn't relevant here. When you authorize the president to go to war, you by necessity authorize him to do things like detain captured soldiers on the battlefield. No one in Congress would even question that they were providing such authority when they passed the AUMF.
But you can go to war in Afghanistan without conducting warrantless domestic surveillance within the U.S. There no obvious connection there. Indeed, shortly after the AUMF was passed, Congress passed the Patriot Act, which contained a number of amendments to FISA, all of which the Bush administration claimed were necessary. Why would they be necessary if the AUMF already "superceded" FISA? The fact is, no one in Congress, even among Republicans, believes that the AUMF superceded FISA. That's just a totally specious argument. And the Supreme Court expressly rejected that argument in Hamdan. And Hamdan involved trying foreign combatants; it didn't even implicate the rights of U.S. citizens.
If the AUMF didn't trump the vague UCMJ, there is just no way that it trumps an explicit statutory prohibition like FISA. You either know this is true and are being medacious, or you have serious blinders on.
I forget--was the Omnibus Crime and Safe Streets Act of 1968 enacted before, or after, LBJ tapped Martin Luther King's phone? And was there a predecessor statute that would have criminalized JFK's tapping of King, or was Kennedy's conduct merely morally disgusting and reprehensible?
Abuses of power like that are exactly why Title III and then FISA were passed. When you allowed warrantless surveillance it invites abuse.
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