Friday, August 18, 2006
Ah, Well, That Explains It
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.)
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.)
Her decision would have been much stronger had she thoroughly explained why the program violates FISA
But hasn't the Attorney General conceded just that?
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!
Marc Lamont Hill over at blackprof.com pointedly notes that these are in fact ad feminem attacks on the Judge. Thanks Marty for highlighting just how low the discourse got.
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.
JaO, The June 5 document title is PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT. Sorry for the mixup. Defendant's document was May 26 as you sawPost a Comment