Thursday, August 17, 2006

A GOOD FIRST STEP

As many of you have undoubtedly heard, District Court Judge Anna Diggs Taylor ruled against the NSA in a warrantless wiretapping case in Michigan, opining that the program violated the Constitution. Admittedly, I haven't read the opinion yet, so I'm not gonna pipe in about what I think of her reasoning, her specific holding, whatever.

Additionally, the NSA will certainly appeal to the 6th Circuit, a fairly conservative appeals court. I fear a reversal. And at that point, who even know if the Supreme Court'll take the case. This is precisely the kind of controversy they've shied away from in recent years.
Nonetheless, what I find interesting & important from the brief summaries I've read, is that in addition to predictable (and questionable, from the standpoint of possible reversal) rulings on "privacy" and "free speech" grounds, Judge Taylor seems also to have held that the wiretapping program violates Separation of Powers doctrines, as addressed in the text of the first three articles of the Constitution.

Basically, what I'm saying is this: I'm not a huge fan of the Judicial branch as an extension of legislative duties, any more than I like the Executive branch doing so. But if the Executive branch is going to grab for unenumerated powers, and the legislative branch is going to neglect its Constitutional role in checking such actions, then I'm more than glad to see a brave judge (or more than one) step into the breach, as it were, and call bullshit.

To be continued (in the "I'm gonna read the opinion" sense, as well as the "let's see how the appeals & stays play out").
-------------------------------------------------------
Update, 1:47 PM, EDT: If anyone's interested, I skimmed Judge Taylor's extremely weak opinion this morning. My brief thoughts are included in the comments to this post. Comment #5, I believe. I'll quickly qualify what I say below, because I suspect people will misunderstand where I'm coming from: I want to see this wire-tapping program go down, and go down hard. I want to see Bush & the NSA go down hard with them.

I'm convinced that the President and the NSA violated a federal statute (FISA), and for this he should impeached & convicted, and the wire-tapping program should be halted immediately. For a fine discussion of this issue, I urge you to check out this piece by Professer Orin Kerr of Georgtown Law School, written up on the Volokh Conspiracy last December.

Nevertheless, as a citizen who respects the Rule of Law, applied consistently and with integrity, and as a lawyer, I think this opinion is very, very poor. I fear it'll be reversed, and probably should be. This is a winnable controversy, but I have the feeling we're going back to the drawing board one more time.

Damn.

17 Comments:

Blogger Otto Man said...

Hey, somebody had to point out that the Emperor had no clothes. It's now up to the higher courts to argue that, yes, we are in fact a monarchy and that yes, jurists like themselves have no power.

If for no other reason than their own ego and self-interest, I'm hoping the higher courts back her up.

12:21 AM  
Anonymous Mike said...

I still haven't read the entire opinion, but the legal punditocracy (left & right) seems to view her Constitutional analysis a bit shaky.

Nevertheless, after reading up on the issues last winter, I thought the Adminstration's failure to abide by the FISA rules -- and not for any violation of the letter or spirit of the 4th Amendment -- was the crux of the case.

Hopefully I'll read through her opinion on FISA tomorrow morning & offer my unsolicited & unexpert opinion on it, for all those hungry for my conslusions.

Even if her Con Law analysis is reversible (and I suspect it will be), so long as her holding that the wiretapping program violated a federal statute (FISA) is valid, then the separation of powers issue may carry the day yet.

We'll see.

12:30 AM  
Anonymous waitingforthealiens said...

To a citizen who has been starved for any good political news since about 1976, Judge Taylor’s ruling yesterday felt like the home team finally getting a base hit. I’m sure that Fox and Rush et al are railing about this “Carter judge.” In private it is probably
“judicial activist bitch.”

And yes they are going to spend my (at least formerly mine) tax dollars to appeal the ruling.

A couple of things I find enormously ire provoking:
1. For all the administrations insistence that:
a. Congress explicitly granted this prerogative to the president and:
b. Such grant was not necessary because the constitution provides such powers to the commander-in-chief.
c. That NSA surveillance has in fact thwarted terrorist attacks and saved American lives.
It has never put forth any reason—not the merest fig leaf—why abiding by FISA would hinder the legitimate pursuit of national security.
2. The main stream press (oh, excuse me, it is now media) continue and continue and continue to fail to ask for the reason(s) for not abiding by FISA.
3. Finally that a citizenry that cannot get enough of flag-waving, gun-toting and looking-down-its-nose-at-the-rest-of-the-world chest beating about American freedom and liberty, just doesn’t seem to give a good goddamn.

10:36 AM  
Blogger Weaseldog said...

I need to take some time to read the brief also, but I think that wiretapping without probable cause or warrants is clearly unconstitutional.

Also, where does the constitution grant Congress the authority to grant the power to declare war to a third party, like Fidel Castro, Vladmir Putin, Osama Bin Laden or even George Bush.

I can't find the amendment that says they can do that.

If I were Alberto Gonzales I could probable find the Amendment where it says that Presidents are Pharoahs and can bring the dead back to life. But he's got talents that I lack.

11:02 AM  
Anonymous Mike said...

I need to take some time to read the brief also, but I think that wiretapping without probable cause or warrants is clearly unconstitutional.

The word "unreasonable" in the 4th Amendment makes this whole thing a lot more dicey than we want to admit.

Also, where does the constitution grant Congress the authority to grant the power to declare war to a third party, like Fidel Castro, Vladmir Putin, Osama Bin Laden or even George Bush.

It doesn't, but Congress has dropped the ball so badly on this one, it's already rolled down the hill & fallen in the sewer.

That said, I believe that Bush & the NSA violated FISA (a federal statute). Check out what Professer Orin Kerr, of Georgetown, wrote on this matter back in December, on the Volokh Conspiracy website:

http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722

It's a fantastic write-up, and I think it gets closer than anything I've read to how this whole issue should be descidd than anything else I've read.

* * *

Anyway, I sat down to read Judge Taylor's opinion this morning and, frankly, it's a disaster. She might as well have led it off by writing, "Please reverse me."

To say it's poorly-reasoned is false, because that would require reasoning. Anyway, before I get attacked, let me say three things:

1. I want to see Bush & the NSA LOSE this battle, and lose it in a rout. I think Executive Power is out of control, and I want to snooping & spying & other bullshit to stop.

2. Like it or not, we have a system of jurisprudence in this country based on precedent, correct interpretation of precedent, logical reasoning, application of facts, and an appellate system that gives higher courts up to two tries to ostensibly "get it right."

3. Judge Taylor's opinion is garbage, legally speaking, and it will be reversed.

The analogy is Roe v. Wade. I, and everyone I respect, likes what it guarantees, but deep down we know the opinion is 100% bullshit from a legal perspective, and this weak reasoning is one reason (among many) that the freedom to choose is constantly under attack.

Judge Taylor engages in a variety of rhetorical barrages -- with which I agree, yet nonetheless have no bearing on the case. She doesn't apply the facts, she merely says they fit.

Finally, and most damningly in my opinion, she never explicitly dedicates a portion of the opinion to the only thing worth hanging her hat on: The Violation of FISA. She says, in the most willy-nilly fashion, that the program violates FISA, but only in support of far more flimsy (and, I think, irrelevant) arguments relating to the 4th & 1st Amendments, for instance.

She also blows it on the question of standing. An appellate judge with any integrity has to reject her standing argument.

* * *

Two more things, then I'm done:

1. I write this blog partly so I can write about something other than the law. If you want to follow up on this issue, check out the Volokh Conspiracy or Instapundit, or some other legal blog, right left or center. They know more than I do, and they can explain it more clearly.

2. I like the holding of this case, but I can't abide by the reasoning. We live under the Rule of Law, and we have to apply it honestly and consistently. I'm the first to achknowledge that "Strict Constructionists" like Scalia are often full of shit too, and I don't respect them either.

But two wrongs don't make a right. We may win this one just yet, but I don't think Judge Taylor's gonna be on the victory stand.

1:42 PM  
Blogger Weaseldog said...

I'm certianly not commenting to get free legal services out you Mike. :)

In my opinion, I'd like to see the US Constitution strictly interpreted. When there's a slippery slope or a matter that is tricky to determine, then I'd like to see it decided in the 'Spirit of the Constitution'. In that I argue that the government's rights should be limited, while the citizen's rights expanded.

If there's a serious question as to whether a law allowing a certain kind of search or seizure is reasonable, then I would argue that it is probably not.

I'm not a lawyer, I'm a citizen and this is how I would like to see such decisions determined. Some folks have argued to my face that whether certain decisions are constitutional or not is a matter best debated by attorneys and decided by judges. I vehemently disagree. We as citizens have a stake in this. We should not sit idly by while our fates are decided for us.

I don't think we as a people are qualified on the whole to run even the pretense of a democracy and recent events prove me out.

I'm greatly saddened to see this aspect of our civilization's decline playing out.

4:56 PM  
Anonymous Mike said...

Weas-

the government's rights should be limited, while the citizen's rights expanded . . . folks have argued to my face that whether certain decisions are constitutional or not is a matter best debated by attorneys and decided by judges. I vehemently disagree. We as citizens have a stake in this. We should not sit idly by while our fates are decided for us.

I agree, I agree, I agree. Just for the sake of clarification, let me say it this way: I agree.

And for that reason, I return to what I've said over-and-over-and-over again:

The only short to midterm solution I see is for a massive defeat of the status quo in November.

This way we can, at least, get some real legislation to curb executive excesses. Moreso, we can get a congress that stops ceding to the Administration's bullying demands. And . . . if we're really lucky (and really brave), we can draft Articles of Impeachment and get moving to stop this 6 year nightmare for good next January.

All I'm trying to say here, in these comments & the update to the initial post, is that Judge Taylor's opinion is anything but airtight. We can do better, judicially, than this, and as you & I agree, the real solution'll come outside the courts.

* * *

Oh, and by the way, that legal consultation was not pro bono. My secretary will invoice the bill to you later this evening. My rate is $500/hr.

5:10 PM  
Blogger Weaseldog said...

I knew we were in agreement Mike.

I was just clarifying my thoughts.

Consider my efforts to advertise your site by linking to it, as payment for services rendered. :)

5:26 PM  
Blogger Dwilkers said...

"And . . . if we're really lucky (and really brave), we can draft Articles of Impeachment and get moving to stop this 6 year nightmare for good next January."

Well Mike. Against my better judgement I guess I'll comment.

Weren't you over at Crank's a while back saying you were not a Dem? So who's the "we" you're talking about then? I thought it odd at the time because I had been over here...I dunno a few months ago I guess, and what I saw was a bunch of posts picking on Laura Bush and Bush's kids.

It would be exceedingly unwise for Dems to pursue impeaching Bush over this. The public would never support such a course regardless of Bush's polls.

If you look at Nixon and Clinton both were impeached as an end result of their own self aggrandizing behavior. In Nixon's case spying on his political enemies and in Clinton's case hiding his sexual pecadillos. Its worth noting I think that the public didn't support impeaching Clinton even in that case.

In Bush's case there is no self interest involved. There's no bribery or money, no personal investment in any outcome. There is instead a dispute over executive power as applied by Bush in the wake of the 9/11 attacks - a dispute worthy of discussion but hardly rising to the level of criminal behavior.

And even if one does believe it was against the law - something that appears from Kerr's post as well as others I've read as an extremely fine line - the evidence is they didn't think it was against the law. Evidence like their briefing their political rivals in congress. Further, if they broke the law they broke it for reasons - as far as we now know - of at worst over caution in protecting the public from terrorists.

It'll never fly. Ever. In fact, I'll bet you 2,000 pixels that in September we'll see Pubs start running around trying to convince voters that Dems want to do just that and Dems running around screaming about how they have no such intention.

Rove would love to be thrown in that briar patch. Can you even imagine how that would look politically?

Far better for everyone would be for Dems to demonstrate the ability to govern and take national security seriously if they win the house. Then we'd be back to a 2 party system which is what "we" really need in any case - competition in the political arena.

But hey, it would be entertaining. It would just be bad for the country and bad for the Dems as a party.

7:49 AM  
Blogger Dwilkers said...

Oh...sorry if that strays from the topic Mike. Rereading it it seems like it might. As I've said elsewhere and I hope is clear IANAL and it is opaque to me whether this was legal or not. I'll take your word and others' that the opinion is poorly done.

7:54 AM  
Anonymous Mike said...

Dwilkers-

1. Weren't you over at Crank's a while back saying you were not a Dem? So who's the "we" you're talking about then? I thought it odd at the time because I had been over here...I dunno a few months ago I guess, and what I saw was a bunch of posts picking on Laura Bush and Bush's kids.

I'm not a Dem. I'll vote in November for (a) whatever non-incumbant (b) promises to oppose Administration power grabs and/or (c) vote to impeach/convict Bush & Cheney for incompetence, lies, & abuses of power. If that candidate is Republican, so be it. If the incumbant is a Democrat who seems happy to keep neglecting his/her duty, I'll vote against him/her (Hint: Hill's in my state, and she'll never get my vote).

Never.

The "we" are Americans who are sick of the disgrace we've seen in the White House for 5+ years.

Also, I think I made fun of Laura once, and it was via very broad & obvious satire. I don't think I made fun of the girls. If I did, I don't remember, but I'll take your word for it.

2. As to the substance of the case for impeachment/comviction, we disagree. I think he's violated the "Contract" a president makes with the citizenry, and I fully favor the political (not legal) move of removing him from office. It's not about meeting a legal standard, but about getting the necessary votes.

A president who lies about the causes for war, violates a federal statute to eavesdrop on his own citizens, and demonstrates a level of incomptence in the face of terror attack, natural disaster & economic downturn is unfit for office.

And I don't care whether a Dem or GOPer replaces him. As long as it's not him.

11:58 AM  
Blogger Dwilkers said...

"...vote to impeach/convict Bush & Cheney for incompetence...

Simultaneously? You mean as in, deliberately defeat the constitutional succession by tossing them both out at once?

Do I understand that correctly? I thought it odd that anyone that wants Bush impeached would want Cheney as president. Maybe I haven't been paying attention to what moderate non-partisan type folks that believe in the rule of law are advocating nowadays.

9:24 AM  
Anonymous Mike said...

While I'm not sure how I'm advocating any interference in defeat[ing] the constitutional succession, you have otherwise read me correctly.

I'm not trying to be glib. I'm not bristling at your questions, and I'm willing to fully explain them.

I believe that Bush/Cheney are enemies of the Constitution, of America. I really do. I think they've demonstrated a willful disregard for the Seperation of Powers as decribed in the Constitution.

Two more years of this Adminstration is too much. We can't accept that much additional harm to our system.

When Nixon took too many liberties, he was removed (or would have been, surely, had he not resigned).

When FDR tried to circumvent Congress via his "Court Packing" plan, he was stopped. And good that he was! While the Constitution doesn't define the number of justices, Article III nonetheless leaves the power to define & delineate the scope of the federal judiciary in Congress's hands. FDR needed a smackdown, and Congress doled one out.

If the new Congress doesn't actually impeach/convict Bush & friends, he's nonetheless badly in need of a major chastening.

10:10 AM  
Blogger DED said...

Nixon was never impeached. However, the likelihood of the House impeaching him was very high, thus he chose resignation.

12:24 PM  
Anonymous Mike said...

I think the judiciary committee (or whichever it was) already drew up the Articles, and it was just a matter of getting the 218 votes by that point.

1:20 PM  
Blogger DED said...

True, but if one is going to enter the fray of political debate (or flame wars as is often the case elsewhere), one needs to keep the facts straight. Almost being impeached may, for all intents and purposes, be close enough but technically isn't. That's my whole point for bringing it up. Some flame throwing right winger might jump on you for incorrectly stating that Nixon was impeached and shatter your argument on a technicality.

5:22 PM  
Anonymous Mike said...

Ded-

I hear you. I thought that with this phrase it wa clear that he resigned before he was impeached:

When Nixon took too many liberties, he was removed (or would have been, surely, had he not resigned)

But upon re-reading, I think it was awkwardly-worked. Thanks for keeping me on my toes.

6:02 PM  

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