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
Marty offers a detailed response to Judge Posner's WSJ Op-Ed piece below. I will focus on a very narrow point. Posner argues:
As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security.
A further strangeness is that the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (which hears appeals from FISC) have been bypassed, with regard to adjudicating the legality of the NSA program, in favor of the federal district court in Detroit. The reason is that the jurisdiction of those courts is limited to foreign intelligence surveillance warrants, and the NSA program under attack involves warrantless surveillance. .... Five years after the 9/11 attacks, the institutional structure of U.S. counterterrorism is in disarray. The Department of Homeland Security remains a work in progress -- slow and painful progress -- and likewise for the restructuring of the intelligence community decreed by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004. And now, in the wake of Hamdan and the Detroit case, we learn that we do not have a coherent judicial dimension to our efforts to combat terrorism. (One reason may be that there is no official with overall responsibility for counterterrorism policy.) Other than the judges assigned to the two foreign intelligence courts, federal judges do not have security clearances and, more to the point, have no expertise in national security matters. Moreover, the criminal justice system is designed for dealing with ordinary crimes, not today's global terrorism, as is shown by the rules, for example, that entitle a person who is arrested to a prompt probable-cause hearing before a judge and require that criminal trials be open to the public....
At first blush, it might appear odd that an arguably momentous decision for national security could be rendered by a randomly selected lowly district judge with no particular expertise in such matters. Posner proposes that "The dilemma of defeating terrorism while respecting essential civil liberties can perhaps be resolved by a change of focus from the adjudicative process to executive and congressional oversight." He suggests that, at the very least, such decisions should be made by judges with special knowledge about national security.
That sounds sensible, but is it right? A.V. Dicey, the conservative English constitutional law giant, identified the following as the core element of the rule of law: "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the law." Dicey repeatedly emphasized the significance of ordinary courts in maintaining the rule of law: "In England the rule of law is coterminous with the cognizance of ordinary courts: it is the rule of the judicature."
Dicey insisted that government officials must be accountable before courts, and he was wary of specialized courts as--to put it in modern terms--susceptible to capture. Posner's position runs counter to both of these ideas.
I do not pretend to know what Dicey would say about these matters today; nor would I say that he was always right. But there is wisdom in his insight that the rule of law is preserved by a decentralized system comprised of a multitude of ordinary judges rendering decisions--including decisions regarding the propriety of the actions of government officials--on a range of issues according to their best reading of law. Posted
by Brian Tamanaha [link]
This reminds me of the recurrent criticism of jury trials based on the jurors' lack of expertise in the matters they are deciding. This criticism misses the crucial importance of juror independence. Although jurors surely bring their preconceptions and sometimes prejudices to the courtroom with them, they are not nearly as subject as judges to the pressure for conformity that affects "insider" decision-making. They also are more likely to start from a neutral viewpoint that is sometimes aspirational even for the best judges, let alone "experts." The more the controversy at issue implicates "values" as distinguished from technical knowledge, the more important the jurors' independence becomes.
These same attributes are more likely to be found among Article III judges chosen "at random" than among "expert" decision-makers, especially in cases in which national security collides with civil liberties -- a value-laden controversy if there ever was one. No surprise, then, that the suggestion for an expert tribunal comes in response to a decision upholding principles that some find anachronistic in the face of "today's global terrorism."
Pardon me for being a bit cynical, but this idea that ordinary judges are not capable of dealing with security cases is rather ridiculous.
First, they are perfectly well capable of deciding what the law says about security-related issues (if not more so than the maladministration's lawyers, for instance). As for technical matters, no one insists that judges be technical experts in other circumstances; they can listen to the testimony of the experts on matters of fact, and then decide the law.
Second, any idea that this maladministration is competent at security and intelligence matters is belied by its track record. Consider for a moment that Karl Rove still has a security clearance. Then look at what they did with the Iraq "intellignece". I'd say that any claims that we need to closely protect our methods (much less our policy decisions in the security arena) are put to the lie by the lousy record of the folks that are supposedly in charge of it. What can it hurt to have a judge look in?
The difficulty is that Dicey used "subject to resolution by an ordinary court" as the definition of "law." Constitutional questions, for Dicey, fell into two distinct categories: laws,so called "since they are rules which . . . are enforced by the Courts," and conventions, "understandings, habits, or practices which, thought they may regulate the conduct of the several members of the sovereign power . . . are not in reality laws at all since they are not enforced by the Courts." Most of the questions we consider constitutional, and all of those dealing with things like distributions of power, Dicey found to be conventions rather than laws. Speaking of an English constitutional lawyer, Dicey wrote: “His position is entirely different from that of his American rivals. He may search the statute-book from beginning to end, but he will find no enactment which purports to contain the articles of the constitution; he will not possess any test by which to discriminate laws which are constitutional or fundamental from ordinary enactments; he will discover that the very term ‘constitutional law’ . . . is of comparatively modern origin.” (Introduction to the Study of the Law of the Constitution (1908), pg. 6). So Dicey was not asserting that ordinary judges have competence to rule on questions of constitutional law, he was arguing that questions of law are those questions which ordinary judges are competent to rule upon, and important constitutional questions do not fall into that category.