The NSA Decision and Things “untrammeled”

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Following up on the decision of Judge Anna Diggs Taylor’s regarding the illegality of of Bush’s domestic spying without warrants from the FISA court it does look as though many liberal bloggers while glad at the result are to some degree disappointed by the route in which Judge Taylor reached her decision. Here is Legal Fiction’s take,

What Should Have Happened

Personally, I think the Court should have said (1) the standing showing is good enough for now; and (2) your privilege claims are not strong enough to scuttle the complaint. Then, discovery would have proceeded, which is what happens almost 100% of the time that courts deny motions to dismiss. At that point, the Court could have made it clear that the government can only rely on facts it’s willing to disclose. Then, the government could decide whether to waive the privilege and provide this information – or take its chances by keeping this information from the Court.

At the very least, however, if the Court wanted to proceed to the constitutional issues (which it shouldn’t have done), it could have at least asked for briefing. Courts just don’t do jump the gun like this, particularly on matters this important.

I know that in the real world things get down and dirty, sometimes the right thing is done for the wrong reasons and we just celebrate the fact that some greater good was done that justifies the sloppy way in which the result was obtained. The law isn’t like that or at least it is not like that most of the time. In this case on one side (the judge’s decision) we have questionable legal wrangling while on the opposing side – which consists of the administration which has clearly broken the law and fends off court challenges by claiming national security like chicken-little set to a timer, Scott Lemieux at Lawyers, Guns and Money makes some very salient points,

I should say that 1)I agree that there is clearly some measure of racism and sexism involved in the criticisms made by people who don’t have any knowledge in the field and focused on her individual characteristics without having read the opinion, 2)I don’t have any problem with the “overheated rhetoric” per se, and criticism about it is laughably disingenuous coming from people who revere Antonin Scalia, and 3)I also agree that most of the same people would be attacking the opinion in the same way even if Oliver Wendell Holmes came back to earth and inhabited Diggs Taylor’s body. Nonetheless, sometimes there is a wolf. Even if we assume that a summary judgment was defensible with respect to the violation of FISA–and given Hamdan, the administration’s argument is unserious–I just can’t agree that the First and Fourth Amendment arguments are so unambiguous as to make a decision before during pleadings appropriate. And in addition to being legally erroneous, I think that the overreaching makes even her good arguments look bad.

and Glenn Greewald in the comments at L,G & M writes,

(1) In a garden-variety, fact-intensive dispute, a District Court’s opinion may be important in persuading an appellate court, but with issues of this magnitude, the Sixth Circuit judges will be deciding these issues from square one analytically, regardless of how beautiful or ugly the reasoning of the District Court was.

Sure, it might be true that if the District Court’s reasoning were super-persuasive, it could influence the outcome (simply because it persuades the appellate judges), but the quality of the opinion is almost certain to be irrelevant in the outcome of the appeal because the Court of Appeals (and probably the Supreme Court after that) will look at these issues de novo, with a completely fresh set of eyes, and won’t care at all how sound or unsound the District Court’s reasoning was.

(2) A decision is affirmed or reversed on appeal based solely on the correctness of the result it reaches, not on the soundness of the reasoning used to reach the result. The Sixth Circut could conclude that warrantless eavesdropping violates the 4th and 1st amendments for reasons wholly different than what the District Court offered, and if that happened, the District Court’s opinion would be affirmed, not reversed.

With legal questions this consequential, District Court decisions are almost always irrelevant to the ultimate outcome. The significance here is that a federal judge re-affirmed the principle that the President’s conduct is subject to judicial scrutiny and that courts have the power to stop illegal presidential action. The quality of the written decision, in the scheme of things, is a sideshow, a meaningless distraction.

So lets get to what is rearing its ugly little head just below the far right’s smear and suspect legal wrangling. Fear. They’re afraid of everything. They’re afraid that people will see that we can be safe without overreacting and that as a country we can be rational and realize that we don’t have to scrap the constitution in order to survive. The right is afraid that people will see that their world view is the exaltation of the worse parts of human nature, that it is petty and hateful and perpetuates those qualities in others. Just the simple act of backing up and admitting wrong scares them. Its the fringe right’s domino theory of personal flaws, if they admit they were wrong about Bush/FISA or Iraq or turning Medicare into corporate welfare then everyone will see that they’re flawed, that they are not infallible, that almost all of the time they act out of loyalty to partisan politics not to what is good for the country. I clicked around the land of Wingnuttia to find something original in the follow ups to this story and it was for the most part a variation on this theme from a fringe rightie called Sister Toldjah, 8/18/2006 – 9:55 am Yesterday’s ruling on the NSA’s warrantless wiretaps

Updated to add: How could I forget to comment on the reactions of the usual suspects? Of course there was happiness and celebration in the lefty blogosphere yesterday over this ruling, but make no mistake about it. They weren’t happy for the reasons they claimed to be (“preservation of our Constitutional rights!!!!!!!!!!!”) but rather because this was a defeat for the Bush administration – and we do live in an era where Bush-hatred trumps concern for our national security to a certain segment of the Democratic party. A Bush loss in the war on terror is victory to the Bush-haters … and as you know, a Bush loss in the war on terror is not just victory to them, but a significant victory for Islamofascists, too.

Wow, eleven exclamation marks that means she must be right. Note caring about the executive’s grab for unitary power translates to hatred for Bush and hatred for Bush is hatred of America. When did a spoiled prep school elitest BECOME America. As always a victory for law and respect for American values is seen by the the ever fearful far right as a victory for ” Islamofascists”. Disregarding the question of whether there actually is such a thing as an “Islamofascists”, any time we as a nation render our laws and the constitution weaker out of paranoia that is when the terrorists get to celebrate a little victory and it is the far right like Bush and Sister Toldjah that seem all to glad to hand them those victories.
Patterico’s Pontification’s seems to be determined to stay in the game though he has little to contribute, but he has do marginally better then Sister, 8/18/2006
Greenwald: Untrammeled Executive Power Bad, Untrammeled Judicial Power Good

Shorter Glenn Greenwald:

Sure, Judge Taylor’s NSA opinion is poorly reasoned dreck. But she reached the right result — and that’s all that matters.

Some people have a talent for doing the Shorter thing, PP is not one of them. That is not all that matters to Glenn as the piece at Salon, the posts at his blog, and the comment I used above can attest. And as Glenn and L,G & M points out the decision may be upheld on appeal using the appeal court’s own reasoning which may have a more thorough repudiation of the Whitehouse’s argument, thus leaving Sis, PP and others eating a fair share of crow. Looking ahead Judge Taylor’s ruling may be overturned, from that there will certainly be an appeal and further down the road look for the possibility of bringing the case to the SCOTUS. Either path doesn’t bode well for the administration. Even if Bush is out of office his infidelity to the law will be legally condemned. PP says it will be appealed yet doesn’t see the big picture when he also states,

And herein lies the irony: Glenn Greenwald claims to be concerned about untrammeled executive power, yet he seems utterly unconcerned about untrammeled judicial power. Sure, Judge Taylor’s decision can and will be reviewed by appellate courts, but Greenwald has made it clear that he will applaud even the most weakly reasoned decision by any court, including our nation’s highest court — as long as it comports with his view of the law. This despite the fact that Glenn Greenwald wears no black robe (at least as far as I am aware), has not been presented with the legal briefs, and has not reviewed the relevant classified information.

PP describes a decision that the Whitehouse will be free to appeal as “untrammeled judicial power”. Untrammeled would suggest no further recourse and the Whitehouse’s singular talent is the ability to avoid accountability. I think he just likes using the word untrammeled. How ironic that in this little paragraph he has already made his own little decision, that regardless of what any court says Bush is entitled to do whatever he wants without constraint. So should we thank him for being so honest about where his point of view arises, one that is untrammeled in its loyalty to all things Bush.

One final note. Some on the right as well as the left are conflating what might be interpreted as Glenn Greenwald’s personal approval of the NSA decision with his legal opinions. I think the two are there in different degrees and that it is a mistake to dismiss his legal arguments because of the perception of personal stakes. Orrin Kerr and others have saddled up the nice safe little pony of I Don’t Know or I’m Not Quite Sure and others have staked out the Bush says and ditto for me argument. Out of the pack at least Glenn and Scott Lemieux have made cogent arguments while everyone else graps for straws.

For some comic relief, HT to War and Piece for this bit of satire from Julian Sanchez, George W. Bush reads Camus (as told to Julian Sanchez)

August 11: My anger at The New York Times subsides somewhat as I skim Foucault and Sartre. Surveillance serves its disciplinary function only if the populace is conscious of it. And if Americans aren’t wrenched from being-pour-soi to being-en-soi (at least in relation to an observer who is Other) by the objectifying gaze of the state — well, then the terrorists have won.