Althouse Knocks One Out Of The Park
Ann Althouse has a piece in the New York Times that is not only delightfully dismissive of the Judge Taylor anti-eavesdropping decision, but also instructive on the point of ‘above the law’ versus testing the limits of the law:
So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.
So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.
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. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”
For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.
Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”
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.
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?
This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.
This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.
Glenn Greenwald, who has discovered another subject besides the dastardly insidiousness of right wing bloggers, has taken it upon himself to defend this cow dropping of an opinion as if it is Thomas Paine’s Rights Of Man, and he won’t be happy. But just glance over his recent postings and tell me that there isn’t a sense of desperation in his frantic defense…
Desperation? Yeah, there’s definitely an air of desperation.
After the Hamdan decision, her ruling will almost certainly be overturned by the Supreme Court.
Oh, I know there’s a story going around about how she donated to the ACLU – but I didn’t bite. I prefer to stand by the near-unanimous (on both sides of the aisle) derision of the decision itself.
Jacques, you surely don’t expect this decision to hold up on appeal? I’m not a legal expert, and I won’t pretend to be, but it’s pretty self-evidently an op-ed disguised as an opinion, is it not?…
I don’t think it’s frustration. I think it’s exasperation. I think Glenn’s takedown of Althouse’s op-ed is pretty devastating. It never ceases to amaze me when our top papers give precious op-ed space to people who have only a cursory understanding of the subject they’re opining about. Althouse hasn’t been following this litigation at all. She hasn’t even been grappling with the legal issues. She’s just someone who happened to read Judge Taylor’s opinion, without any context. And for the record, it’s not just Glenn who’s exasperated with this line of reasoning. Profs Balkin, Lederman, Turley, and Tribe have all recently written posts/op-eds that are very different than Althouse’s. And these are people who have been following this issue very closely.
The bottomline is this: the arguments that Althouse insists that Judge Taylor should have taken seriously are 1) not very serious arguments, and 2) were not made by the goverment in that case. The DOJ was twice instructed to brief the merits of the case and twice refused to do so. As a result, much of the ACLU’s brief went undisputed.
Maybe on appeal the government can actually put forth there “serious” arguments.
Given that the Government pretty much failed to dispute the facts of the case, it’s pretty hard to see how the statutory finding will be overturned on appeal. The Appellate Courts don’t need to like the Judge’s prose to find that the case was correctly decided.
Her Constitutional findings are more dubious (and may be overturned).
That should bring you some cheer. Congress can amend or repeal FISA. They can’t repeal the 1st and 4th Amendments.
Anonymous, you realize Althouse is a law professor at the University of Wisconsin, right? Not that that makes her right or wrong, but she’s hardly just some fool off the street the Times picked up…and how would you know whether she’s been following the case? A very Greenwald-ish assertion, there…
Finally:
It never ceases to amaze me when our top papers give precious op-ed space to people who have only a cursory understanding of the subject they’re opining about.
I take it, then, that you have called for the dismissal of Maureen Dowd and Frank Rich…
Jacques, I’m in favor of this case going to the Supreme Court – AND a statutory compromise…I do think something like the (sorry, Anonymous, you won’t like this, either) Specter approach would be a good start…
I don’t think an ex-post-facto repeal of FISA would really affect this civil case, as FISA was the law of the land at the time.
Of course, if the Constitutional findings are upheld, Spector-like legislative action would be irrelevant.
Anonymous, you realize Althouse is a law professor at the University of Wisconsin, right?
Meaning that her profession enables her to tune out the dirty mechanics of procedure that a practicing lawyer would turn to first. As far as I can tell, Greenwald’s response is the final word.
the case was forum shopped.
I’m married to a consitutional law expert, whose father is a retired constitutional law professor.
There is strong disagreement about the legality of the wiretaps between the two, but both are in agreement that this ruling is pathetically weak.
I’ll ask those who think the ruling is greater than sliced cheese-
what is the injustice suffered by the plaintiffs that gives them standing?
This last comment is a joke, right? Greenwald is now to be considered a constitutional authority on the matter? That seems to be news to just about any news outlet that’s been covering this case, but what do they know? What I know is that Greenwald was proven to be a rapant poseur of sock – puppetry on many conservative sites this summer, and has not offered a plausible defense of his actions to date.
http://proteinwisdom.com/index.php?/weblog/entry/20707/
He also went on Patterico’s site and many others
using the same fake names and IP addresses.
What I also know is that if anyone uses this childish behavior in order to prove his “bona fides,” in matters of the law, then it may be best to look elsewhere for the “expert opinion” you seem to be accrediting to him here.
Sorry, I was late to the party here – I was referring to the comment made by “jpe” above.
If he’s a practicing attorney, he knows the process of litigation better than an armchair expert on substantive law. In other words, whether he’s an expert on Conlaw is neither here nor there: some of the seeming weakness and/or strangeness of the opinion is easily explained in terms of CivPro
and how would you know whether she’s been following the case?
I’m basing that on her blog. She admitted on her blog yesterday that she hadn’t been following the case. And she hasn’t really devoted any time to discussing the legal issues, as many other legal blogs have. She’s just a very strange choice for an op-ed contributor on this particular subject. I’m not saying she’s stupid. She’s a law professor. But this isn’t exactly a subject that has interested her very much until right now.
Quote:
jpe Says:
August 23rd, 2006 at 11:44 am
……. “As far as I can tell, Greenwald’s response is the final word. ”
end quote
Comrade,
I can only pray that these were Greewald’s final words. The world will be a much nicer, and rational, place when he and his ilk are done and buried. There is plenty of room in this world for dissenting thought and opinions, but Greenwald, Kos, der Hampster, et al, are nothing more than saddle burrs under the backside of the body politic. Voices with no other purpose than producing irritation and pain. They produce nothing useful, except when their works are printed on paper, which can then be used to line the litter box or wrap dead fish.
Greenwald’s final words…. I wish…
Respects,
Gwedd
just asking-
Has it been established that any of the plaintiffs were actaully eavesdropped on?
likely, yes. definitely, no.
Is there a case which supports Taylor?
Best I found was Zweibon v. Mitchell, but even that ‘plurality’ offered:
“absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional.”
It seems that every case that has tried to limit eavesdropping-there really aren’t many, allows for ‘exigent circumstances’, and I would offer that the potential for terrorist acts would fall under the exigent category.
Since I see a lot of Greenwald fans, give me the precedent of ACLU v. NSA, from which you are drawing your guidance. Chances are the ruling allowed for the possiblity that a post 9/11 situation might occur, but at best would offer that the case was not applicable at the moment.
9/11, and preventing future 9/11′s became the exigent moment.
Has it been established that any of the plaintiffs were actaully eavesdropped on?
No, but their theory of standing wasn’t based on establishing that they were personally eavesdropped upon (who could possibly demonstrate that?). They argued that the program chilled their first amendment rights and hindered their ability to practice their chosen professions (remember, the plaintiffs are Christopher Hitchens, Larry Diamond, etc.). That’s a somewhat novel theory of standing, but it’s certainly just as solid as theories that the Supreme Court has accepted in the past. If you don’t believe me, read the Lujan case, which is the Supreme Court’s most famous opinion on standing.
The bottomline is that standing is a stupid doctrine that is applied unevenly. Judges find that standing exists when they want to reach the merits and doesn’t exist when they want to avoid the merits. Judge Taylor wanted to reach the merits. The question now is whether the Sixth Circuit (and like the SCOTUS) will choose to duck the issue.
Since I see a lot of Greenwald fans, give me the precedent of ACLU v. NSA, from which you are drawing your guidance. Chances are the ruling allowed for the possiblity that a post 9/11 situation might occur, but at best would offer that the case was not applicable at the moment.
MTL, you’re focusing on the 4th amendment holding, which is a tough call, rather than the statutory holding, which is a no-brainer. Whether or not this program violates the 4th amendment, it certainly violates FISA. So even if the Sixth Circuit doesn’t agree with Taylor’s 4th amendment holding, it will almost surely agree with her statutory holding (unless it ducks the issue altogether by tossing the case on standing grounds).
Judge Taylor’s conclusion that the program is illegal is on absolutely solid legal footing. The constitutional issue is superfluous.
so far you have cited no case for your guidance…
except Lujan-I’ll have a look)
you have not demonstrated that they were ‘victimized’…
‘chilled’ implies that they were limited in their discussion. The only discussion I could see that would be chilled is terrorist related-so the argument that they lost their right to free speech is a smack in the face that implies freedom to discuss terrorist activities is protected from warrantless wiretaps. good luck on selling that one.
Haven’t bothered to read all of Taylor, but does she get specific as to what discussion they could have which would be chiled by eavesdropping, but also protected by the 1st ammendment?
As a finding of fact, judge Taylor should have requested that the records, if they exist, should be allowed examination by the court. She chose not to proceed in this manner, becuase she would have likely lost the argument and delayed the case, and would not have been enabled to write her opinion-which she believed was urgently needed-despite a lakc of the facts.
Her desire was not to gather facts, but her urgency to attack the program. She feared if she got lost in a fact-finding mission her window of opportunity to weigh in would be lost.
having trouble finding Lujan…
apparently Greenwald doesn’t even use the case in his argument.
strange as this conflicts with the belief:
“If you don’t believe me, read the Lujan case, which is the Supreme Court’s most famous opinion on standing.”
Perhaps you can give me an example of Greenwald citing-’the most famous opinion’.
I’m still waiting for the caselaw which supports Taylor’s ruling. Pick a case which supports her view, and let the argument proceed…
that is why her opinion is being ridiculed. Any precendent that could be cited, also allows for exigent cirumstances.
Bottom line?
Terrorism is an exigent circumstance.
This whole argument is a lot like the RICO argument from 1970. Not the specifics, but in spirit. Organized crime exceeded a threshold of danger which allowed for a ‘loss of civil liberties’.
even funnier:
Greenwald cites Marty Lederman:
but in the first paragraph of Lederman’s work that he cites?
“I have almost nothing to add to Jack’s superb post from earlier today on Judge Taylor’s NSA decision, and to the Washington Post’s lament on tomorrow’s editorial page. Judge Taylor’s judgment is very welcome, and correct — the NSA program is, indeed, unlawful — but Jack’s analysis is also correct: The court’s opinion in support of the judgment leaves much to be desired.”
Greenwald seems to have a lack of case law to cite as well as other legal analysts who support Taylor’s argument. Is there anybody out there with crediblity, who is supportive of Taylor’s logic?
somebody credible, please.
I did see the Turley interview on Olberman, and find him to be a well intentioned liberal-supportive of the idea that Bush has behaved illegally. I did not see anything which could come close to being an endorsement of her actual opinion, just her sentiments. While I diagree with turley, he is a far more reasoned voice on the matter, and I did not see any attempt by him to justify her logic.
Disclaimer: I have a JD with honors and I practiced for several years. Actually, active law practice is of very little help once one is in the rarified area of federal appelate practice. CivPro is at the TRIAL level.
What needs to be understood is that there are VERY strong constitutional arguments that a president has a CONSTITUTIONAL grant of power to conduct intelligence operations. As a constitutional grant of power, it CANNOT be abrogated by a mere statute. (You can’t amend the constitution with a law!) Thus, FISA cannot impede the president’s inherent authority to conduct surveillance. What most of you don’t understand is that court’s always interpret a statute so as to preserve its constitutionality. Thus, they will interpret FISA as valid, but NOT limiting the president’s inherent authority. As to the Fourth Amendment argument, you have a right against “unreasonable” searches and siezures. A warrant makes it reasonable, but the LACK of a warrant does not necessarily make a search or siezure unreasonable. There is a LONG line of cases that surveillance for national security purposes is an exception to the warrant requirement. A good starting point for study is U.S. v. Truong, 4th Cir. 1980.
What needs to be understood is that there are VERY strong constitutional arguments that a president has a CONSTITUTIONAL grant of power to conduct intelligence operations. As a constitutional grant of power, it CANNOT be abrogated by a mere statute.
Edward, this is just a misstatement of constitutional law. Presidential inherent authority is, in most cases, just default authority. And that authority most definitely CAN by abrogated by statute. That’s the whole point of the Youngstown framework, which is accepted by every single justice on the Supreme Court. The only time a statute cannot abrogate presidential power is if that power is exclusive. And there is no case law whatsoever that suggests that the president has the exclusive power to make rules govering surveillance.
MTL, you keep demanding case law. We’ve all been discussing the relevant case law for months. Youngstown is the key case (affirmed recently in Hamdan). FISA expressly forbids warrantless surveillance, which means as long as FISA is constitutional (and there’s no reason to think it isn’t), the NSA program is illegal. There’s no reason to get to the 4th amendment question, which is only relevant if FISA is somehow held to be invalid.
As for the issue of standing, the cases are all over the map. But you don’t have to demonstrate you’re a “victim.” You just have to demonstrate that you have suffered an “injury in fact”, which has a very malleable definition. In Lujan v. Defenders of Wildlife, the plaintiffs alleged that they suffered an ‘injury in fact’ because the federal government was not enforcing the Endangered Species Act with respect to animals in Sri Lanka. They claimed their injury was the lost opportunity to visit and appreciate this wildlife. The court held they did not have standing, but only because they did not yet have any definite plans to visit Sri Lanka. The clear implication was that if they had plane tickets to visit the country, they probaby would have had standing.
Anyway, you get the idea. Meeting standing requirements does not require any demonstration that you have suffered grevious injury.
The claim in the Hitchens/ACLU case is that, because the government is conducting warrantless surveillance, the plaintiffs Middle-Eastern contacts/clients/sources–who are NOT terrorists–don’t feel comfortable talking to the plaintiffs by phone. This in turn hampers their ability to do their jobs. That’s their claimed injury, and it strikes me as every bit as serious an injury as was held to be sufficient in other cases.
Actually I thought the discussion was about althouse finding Taylor’s ruling incoherent.
There was a move to take up a counter argument by Glenn greenwald or in your words-
” I think Glenn’s takedown of Althouse’s op-ed is pretty devastating.”
I found that to be a riduclous statement as his article offers no case law, and his supporting experts seem to agree that Taylor’s ruling is incoherent contrary to Greenwald’s belief.
“We’ve all been discussing the relevant case law for months.”
Really…why did you stop today?
“And there is no case law whatsoever that suggests that the president has the exclusive power to make rules govering surveillance.”
Actually there is a ton of case laws that make exceptions to the rules of obtaining a warrant. It does eem that evrytime the court found a chance to restrict the govt’s ability to go into people’s 4th amendment rights, they also took the time to say that it is not universally applicable and exceptions exist.
My contention is that terrorism is the exception.
The Article II argument is VERY weak, actually. The president’s penumbral powers are easily surpassed by the express grant of regulatory power to Congress in Article I.
Actually there is a ton of case laws that make exceptions to the rules of obtaining a warrant.
That’s always in the absence of a statute requiring a warrant. A statute would moot those court cases. The fourth amendment is a floor, not a ceiling.
No, I have not misstated Constitutional law. (I’ll bet I got a better grade in Con Law than Anonymous Liberal.) Granted a president’s inherent DEFAULT or PENUMBREL power can be shaped by statute, but powers specifically granted by the constitution are another matter. (The specific power here is as commander in chief of the armed forces, and there is a line of cases that intelligence gathering is a fundemental aspect of military operations.) The separation of powers doctrine comes in to play with specifically granted power. For example, the Constitution specifically grants the House & Senate the power to internally organize their affairs as they see fit. Such organization is not legislation, however, because it is not subject to the President’s approval. At any rate, although it is true that you NEVER want to go to court with just the constitutional argument, the Article II argument has been the position of every administration since Carter!
As to the dreadful decision, and having actually read a line of cases including Truong, I have NO doubt it will be stomped on appeal. I doubt if even the Ninth Circuit would uphold the decision.
mtl,
I not a lawyer, but it seemed to me that in my reading of the court’s decision there was an abundance of citations to previous cases throughout the opinion. Perhaps you should cite specifically were you find an incompatibility between the argument and the citations.
mtl said–Actually there is a ton of case laws that make exceptions to the rules of obtaining a warrant.
So gives us a few of the more decisive cases that in your opinion that supercede the requirements of FISA with respect to warrants so we might judge the basis of your statement.
As to the dreadful decision, and having actually read a line of cases including Truong
Truong, of course, was rendered moot by FISA. Re: Commander in chief power: it’s an administrative and not a policy position. That power over policy is very clearly granted to Congress, which has the power to set rules governing the military.
(forgot to add that Hamdan is very, very explicit on this point, perhaps anticipating the FISA cases: the war powers are shared between the Congress and the President, which means that the Youngstown framework governs the dispute.)
No, I have not misstated Constitutional law. (I’ll bet I got a better grade in Con Law than Anonymous Liberal.)
Yes you did misstate the relevant principles (twice now). And no, you couldn’t have gotten a better grade in con law.
but powers specifically granted by the constitution are another matter. (The specific power here is as commander in chief of the armed forces, and there is a line of cases that intelligence gathering is a fundemental aspect of military operations.)
Congress is expressly given the power to make rules governing those very same armed forces over which the president is commander in chief. FISA is quite clearly within that power (as well as a number of other powers). This is an area in which Congress and the president quite obviously share authority, and therefore, under the Youngstown framework, the statute trumps. That was the holding just recently in Hamdan. If a statute trumps the presidents power with respect to the treatment of foreign combatants on foreign soil, it sure as hell trumps the presidents power when it comes to surveillance U.S. citizens within the U.S. The president does not have an exclusive power to set the rules governing surveillance of U.S. citizens. There are no cases at all that support that conclusion.
As to the dreadful decision, and having actually read a line of cases including Truong, I have NO doubt it will be stomped on appeal.
As JPE pointed out, Truong is only relevant to the 4th amendment issue. Even if the Sixth Circuit disagrees with Judge Taylor on that issue, she’s still clearly right about the statutory/FISA issue. Even if the program is constitutional, it is still clearly illegal.
the Article II argument has been the position of every administration since Carter!
Wrong again. No president, until Bush, has ever claimed the power to disregard FISA’s prohibition against warrantless surveillance. And he only did so AFTER he was caught breaking it. And please don’t both mentioning the Aldringe Ames/Clinton episode. At the time FISA did not cover physical searches.
You don’t know Dick.
Heya!!
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