an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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. In the end, the quality of her opinion won't much matter: Even if that opinion had been a tour de force, all of the issues would still be rehashed in the upcoming appeal before the U.S. Court of Appeals for the Sixth Circuit (where I predict questions of the plaintiffs' standing will be prominent). But still, it would have been nice had Judge Taylor homed in on the plaintiffs' strongest arguments, and had dealt thoroughly with the government's responses. Not even a mention of Hamdan?! (The opinion may have been rushed, for fear that the case would be consolidated with others and transferred to the Northern District of California.)
In particular, it's very unfortunate that Judge Taylor principally rested her judgment on the constitutional claims -- under the First and Fourth Amendments -- rather than on the much stronger statutory claim. The Fourth Amendment claim is a serious one, as I have argued, but Jack's right: Judge Taylor did not contend sufficiently with the strongest government arguments on the "special needs" doctrine. Her decision would have been much stronger had she thoroughly explained why the program violates FISA, and why the government's Article II argument is wrong. (Question: Did the government actually argue (in the alternative) that FISA is unconstitutional? If so, could someone please provide a link to the brief(s)?) [UPDATE: Thanks to John L., here's a link to the government's brief. What's interesting is that although DOJ alluded to the Article II argument, it did not quite advance or support in any detail that argument -- or any other merits argument, for that matter -- because the theme of its brief was that the state secrets privilege makes it impossible to adjudicate such arguments in court. Judge Taylor's decision will put DOJ in a bit of a pickle on appeal -- they'll want to contend both that the merits can't be understood or decided, and that the decision on the merits was wrong. Which is all the more reason that I bet DOJ's brief will be heavy on arguments about standing.]
But even if her opinion is unsatisfactory, that doesn't justify the sorts of ad hominem attacks that have already been leveled at Judge Taylor. Glenn Greenwald recounts some of the more predictable and odious reactions from some in the blogosphere, Rush Limbaugh, etc. OK, we've come to expect that. But the New York Times?! This is from tomorrow's story, by Adam Liptak and Eric Lichtblau, whose work on these issues has otherwise been superlative:
Republicans said the decision was the work of a liberal judge advancing a partisan agenda. Judge Taylor, 73, worked in the civil rights movement, supported Jimmy Carter’s presidential campaign and was appointed to the bench by him in 1979. She was the first black woman to serve on the Detroit federal trial court.
She has ruled for the A.C.L.U. in a lawsuit challenging religious displays on municipal property. But she has also struck down a Detroit ordinance favoring minority contractors. “Her reputation is for being a real by-the-books judge,” said Evan H. Caminker, the dean of the University of Michigan Law School.
The first and last sentences here are perfectly ok, as is the now-obligatory reference to the President who appointed the judge. But does the New York Times really think that it's relevant -- worthy of paragraph six emphasis -- that Judge Taylor supported Jimmy Carter and worked in the civil rights movement, or that she is black? Has it included similar disclaimers whenever, say, Judges Silberman (of In re Sealed Case fame) or Luttig have issued opinions supporting the Bush Administration? Imagine: "Recall, however, that Judge Silberman, who is a white man, has long been hostile to all things liberal, and, in particular, when FISA was being considered 28 years ago, he was the leading opponent, offering constitutional arguments against it that were not to be heard again until he gratuitously slipped them into dicta in an opinion he wrote as a federal judge almost three decades later." Whenever the first President Bush did anything considered conservative, did the New York Times remind its readers that he was white and that he had opposed the 1964 Civil Rights Act?
One might think that Judge Taylor's judgment was wrong, or, like me, you might think the judgment was correct but the opinion is inadequate. But is there any reason at all to think that Judge Taylor does not sincerely think the NSA program is unlawful, or that she does not believe what she's written -- let alone that her opinion was a function of the fact that (horrors!) she's black, supported Carter, participated in the civil rights movement, and has ruled against a state religious display? (Perhaps Liptak and Lichtblau intended only to suggest how outrageous the rhetoric has been of those "Republicans" who claim the decision was "partisan." I hope so. But if so, that flavor sure got lost in the editing.)
[Full disclosure, which you should keep in mind whenever you're reading any of my blogging here: Although I am white, I am one of the few Americans who supported Jimmy Carter for President. I voted for President Clinton -- twice! -- and worked in his Administration. Shudder to think, I've worked for civil rights organizations -- I even interned for the ACLU! Of course, one's views on the Establishment Clause are also relevant to one's analysis of FISA, so I should acknowledge that a couple of Terms back I filed a brief in the Supreme Court arguing that it's unconstitutional to have public-school students recite the phrase "under God" in the Pledge of Allegiance every morning. And, like Judge Taylor, I'm from Detroit. Thus, you probably should treat as suspect all my legal analysis of FISA, the Torture Act, Common Article 3, Article II, the Uniform Code of Military Justice, etc.] Posted
by Marty Lederman [link]
First, I join in abhorring the ad hominems directed at Judge Taylor.
Second, I also join in lamenting the thinness of her analyis on the merits. And I, too, think that the strongest case against the NSA program rests on the statutory arguments.
But having digested much of the coverage and reaction to this decision, I think there is one recurring rap against the judge that is undeserved: Many observers, including the Post editorial writers, complain that she did not wrestle with the administration's constitutional claims to inherent power that trump FISA.
I remind everyone of the very significant distinction between the "arguments" made by DOJ and Bush surrogates in political venues, and what Bush's advocates might have said in an actual court of law.
As I understand what has happened in the Detroit case -- based mainly on paraphrased news coverage -- DOJ basically did not show up to play over these arguments in Taylor's court. The administration stubbornly refused to address the merits, insisting that the judge could not even consider these issues because of "state secrets" privilege. Whatever defense of the merits was made in oral argument, it apparently was less than a full-throated and straightforward presentation of the theories propounded by the Bush camp in political circles.
Perhaps the President's lawyers now will be compelled to make their case where it matters.
Defendant's Motion to Dismiss was dated June 5, 2006. You likely have seen it. Around p.18 of the 31 p pdf there is AUMF discussion; the document mentions with some specificity the in camera availability of other support documents. Scroll down to the list of links to legal documents mid webpage there; the list is principally Complainants' materials with a few Defendant replies. Or, click here for the MTD. Found this from another site which has organized links by topics.
I had read the documents posted at the links you cited, but I am confused by your reference to a June 6 Motion to Dismiss by the government. The MTD I read, to which you linked, was dated May 26.
The government made a motion to stay consideration of the merits, based on state-secrets privilege, which Judge Taylor rejected. If there was anyplace the that DOJ actually engaged the substantive issues, it was at a hearing held the week of July 10. I am unaware of a DOJ brief associated with that hearing. If there was one, I would love to read it. Also, of course, a hearing transcript would be nice. There was an LA Times story with a very unsatisfying paraphrase of the oral arguments -- indicating that DOJ had defended the merits of the NSA surveillance somehow -- but even that link is now dead.
In any event, the Detroit case is the closest we have come to seeing the government show up in a real court and actually make an argument.
(BTW, I apologize in advance if a duplicative comment appears here. Blogger seems to have eaten my first effort.)
Judge Taylor gives the "administration's" insistence that the TSP is perfectly lawful all the attention it needs: she invites them to present that case, reminding them that a program's basis in law won't be obscured by the maintenance of state secrets.
And Marty, you misunderstand. It's not that Judge Taylor was appointed by President Carter. It's that she was appointed in 1979!
Perhaps the reason the press didn't discuss Judge Silberman's background when the In re Sealed Case decision came down is that it was a per curiam decision rendered by all three judges on the FISA Court of Review. What basis do you have to continuously state that Judge Silberman "wrote" the per curiam opinion? And aren't you necessarily insinuating that the other members of the panel were simply too dense to understand Judge Silberman's machinations?
JaO, I discovered the discrepancy, as well, very early this morning, too late to research for concordance of dates. I think the June date must have been from a plaintiff document open on my workstation at the same time; sorry. When I have a moment this evening I will find the answer for you, or you can email me. Maybe you can resolve all if you see what is in Pacer, which gets pricey on a per pageview basis, an amazing residuum of the EDI era.