Our pal Glenn Greenwald, who opposes untrammeled executive power, appears to be hunky-dory with untrammeled judicial power, as long as it is exercised to reach a result he likes.
As I argued last night, Judge Taylor’s NSA opinion is a legal disaster. It is conclusory and overblown. It utterly fails to engage (or even acknowledge) the most serious arguments made by the Bush Administration.
But don’t take my word for it. Take the word of a prominent Constitutional Scholar who shares an IP address with his biggest fans, including Thomas Ellers, Ellison, Ryan, and Wilson. In a comment on Volokh.com, our Scholar says:
Although I agree with all of the conclusions the court reached, the opinion is horrible in how it analyzes those issues and defends its conclusions in several important respects.
On Salon he says:
[C]ommentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak and thus vulnerable on appeal with respect to several critical issues. The court, for instance, barely explains why warrantless eavesdropping violates the Fourth Amendment, and its discussion of why such eavesdropping violates the First Amendment borders on the incoherent.
Seems to me that if something is obvious to at least the intended audience; lawyers and other folks that should be familiar with the constitution, belaboring it is needless.
If the judge's dismissal was curt, even telegraphic, it's because the Administration presented no arguments that would require any particular display of reason. On my blog, I refer to it as a "bitchslapping."
Consider that the bulk of the objections here and elsewhere are not that the ruling was incorrect, but that she gave insufficient consideration; that she was plain disrespectful. Why, the term "uppity" springs to mind that this - this WOMAN would dare disrespect our President and his Exeuspecial Atomic Manhood.
She's BACK-Talkin' the Presnent! Horrors! Calamity! The First Nuclear Family is at Risk! And she won't explain to the President WHY warrantless wiretapping is WRONG!
Nope. She shouldn't have to. She merely informs him that it is provably and indispuatably a violation of the 4th amendment and Congress's expressed will (FISA) with no other evidence than the president's own words.
Read it for yourself. There are some particularly dry dismissals of the State's Secrets privilidge claimed by the governement, and one can almost hear "loose lips sink ships." She patiently explains that in order for a claim of state secrets privildge to be sustained, the facts in dispute actually have to be... secret.
I think that anyone who NEEDS explaination of such very basic facts should be immediatly deported as being too damn ignorant to be a citizen. I further believe that anyone who presumes on an ignorant citizenry to support such a clear violation of their rights deserves to be impeached.
And that is aside from the whole aspect of being a conscious liar and lawbreaker, of course. That troubles me. The thought of George Bush being president makes me concerned about direct risks to my personal pink ass, just as I would be concerned about someone who thought that it was OK to golf during a thunderstorm because they were too important to be struck by lightning. I'd be even more concerned about those who nodded and said, "OK, then, a quick 9 seems like fun to me."
Judicial power is far from "untrammeled." Congress can pass any damn-fool law it cares to, so long as it is, in fact, Constitutional. Goddess knows they have. I'm sure we could all pick favorite examples of the phenomenon. About half passed by liberal idiots and about half by the other sort. I mean, there's a bridge in Alaska that comes to mind. Or the bipartisan support for the penny, which costs us more than it's worth to make and keep in circulation.
"Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself" - Mark Twain.
Within the broad parameters of the Constitution - and they ARE quite broad and allow for more than adequate executive power - the Executive is free to pursue it's policies largely unhindered - unless those polices directly conflict with Constitutionally-protected rights. Moreover, raising the objection is in itself costly and time-consuming enough to filter out most insignificant issues.
Now, read your Constitution. I cannot think of a single Bush policy more obviously in violation of both the literal and the spiritual Constitution as the very idea of "warrantless wiretapping." It would have taken a very high standard of proof and extremely compelling arguments for any competent judge to be seen in public taking this seriously.
There are several things that are obvious first steps that would have to be documented as insufficient remedies to the concerns the president asserts.
FISA itself was put in place as a means to address exactly these sorts of national security contingencies and is in itself a wee teense suspicious sounding, with it's secret courts.
The fact that Congress found it to be a national security necessity to go that far in the face of some fairly obvious liberal and libertarian objections is a compelling evidence for the necessity. Nonetheless, it was not "carte blanche" and apparently the Administration's lawyers argued that FISA is, in itself unconsitutional, which was met with an impatient judicial shrug. "Congress did it TOO" is really not the acme of constitutional argumentation.
I've considered the idea that FISA might be too cumbersome for exigent circumstances, because, well, that seemed all too probable and many were and contiue to make that assertion.
I looked into it, and from my perspective and ability to know, that seems truly to be a red herring. The warrants issued seem to be in rough line with the number of cases the FBI and other agencies could be seriously pursuing.
But even if the procedure were too cumbersome, it would be well within the power of Congress, and possibly just the President, to streamline it. In reading the full opinion, I see the good justice concurs.
Considering that there's a 72 hour grace period, and the fact that you have the information to know who to listen to means you have most of the information the forms should ask, it seems to me that the creation of the warrant application is a straightforward "mail merge" operation. A keystroke macro. That would be my very FIRST suggestion, and if that most elementary procedure has not been taken, the Administration should not be wasting the court's time or the precious, irreplaceable photons this discussion consumes.
All obvious remedies would have to be tried and found inadequate before it's appropriate to consider testing the bounds of constitutional restraint, if for no other reason than the obvious need to keep such an operation secret - or at least secret enough to be kept out of doubt.
Let us not forget that the Constitution is the "flag" our team is defending. It's THE OTHER SIDE that hates our freedoms, and even if you don't value them for yourself, value them as a continued finger to the face of whatever Ayatollah you particularly despise.
And finally, the Administration said to a sitting federal judge, in essence, that "we could prove the legality of this operation, but then we'd have to kill you."
Yes, I can see how that sort of argument might cause a testy reaction. Even in, say, Justice Alito.
She showed commendable judicial restraint in not observing the bleeding obvious - that in repetedly confirming, bragging and talking up the NSA program, he had completely eliminated it as a tool for intelligence-gathering. From that moment on, any apparent leads from it must be presumed to be disinformation.
And lo, the FBI has complained that all they get from it is crap - exactly what you would expect from a blown intelligence operation.
Given that fact that is obvious to anyone with the intelligence bacground conferred by a John LeCarre novel, one has to wonder exactly why the president wishes to continue survaillaince? I can think of two possiblities - first, to prevent independant parties from gathering real intelligence from offshore sources that might bring his policies into contention. Second, to use the fact that one had communicated with a potential terrorist to be sufficient to survail or imprison someon on the presumption of terrorist complicity. And third, to listen in on the DCCC.
But neither I nor the judge really need to consider why the president wants warrentless wiretaps. Hell, EVERY cop and every prosecutor WANTS them. For that very reason, the constitution was written to frustrate their desires. Every single president carried them out until FISA was enacted, knowing that it was both unconstitutional and illegal. Nixon, at least, had the grace to resign when busted for such things; as John Dean observed in regard to this matter, "Bush is the first President to publicly admit to an impeachable offense." I'd consider John Dean's standing on the issue of impeachable offenses to be fairly uninpeachable.
There is a certain basic skepticism of the purity of human motives that we have a right to expect of our judiciary, and if they err, we expect them to err on the side of a conserving individual liberties and the Constitution.
When the Cubs or the Mets lose, the first thought isn't that the umpire was crooked. If they WIN, you might need to watch the game twice to see if there were some funny calls.
Xposted to DKos, TPMcafe.
tag: constitution, first amendment, fourth amendment, intelligence, FISA, Separation of Powers Doctrine, Judge Taylor’s NSA opinion, george w. bush, reason, constitutional, commander in chief, terrorism, domestic terrorism, warrentless wiretapping, cause for impeachment, impeach, unconstitutional