AN UNSCHOLARLY, NON-LAWYERLY OPINION ON THE NSA DECISION
In a perfect world, all that would be needed to understand the law would be a heap of common sense and a love of liberty. Indeed, in the early days of the Republic, “the law” was largely considered self evident and that the nuances of a particular statute were interpreted not by highly trained legal minds but rather by judges appointed or elected based on their reputations for fairness and their ability to apply country wisdom to a legal problem.
This was an age when the courts were considered great entertainment, when judges and juries were routinely swayed not by careful legal reasoning but by the powerful oratory and histrionics of up and coming lawyers. Most of our great statesmen in the early decades of our history were lawyers who made their reputations in this manner. When one of these legal superstars was involved in a case, it would draw people from miles around to watch and listen as the barrister would hold forth, delighting the crowd with humor or moving it to tears with pathos.
But for the law to be a civilizing influence, it was perhaps inevitable that these simple, frontier practices would eventually give way to a legal complexity so discombobulating that ordinary people like you and me would be forced to place our trust in writing and interpreting the law into the hands of educated, trained legal high priests whose common sense and wisdom were less important attributes than their ability to obfuscate and confuse the nuances of the law, all the better to bend it to their will.
In short, somewhere along the path to legal enlightenment, cleverness and chicanery replaced intelligence and common sense as prerequisites to being a good lawyer.
I may get an argument from some of my readers who practice law regarding that last statement but I think my point is valid; understanding of the law is now beyond even those who might be considered reasonably intelligent and perceptive. Without the technical expertise in the law vouchsafed those who train for a career as a lawyer, the rest of us are at sea when it comes to the great legal issues of the day.
I say this only in defense of what follows. In a case that involves the very essence of our constitutional system of government, only a relative handful of the 300 million citizens of this country have the specialized knowledge to examine and debate the issues raised in Judge Taylor’s decision on the legality and constitutionality of the NSA terrorist surveillance program.
This won’t stop the rest of us from forming an opinion on the matter. But that opinion will be based largely on what other, more informed sources have instructed us to think. And in the court of public opinion, like the lawyers of our early history, emotionalism and sensationalism seem to sway our opinion more than common sense and reason.
I say this realizing that I am as susceptible to this kind of argumentation as the next fellow. But in recognizing my limitations, I feel confident that I can nevertheless offer up some observations on Judge Taylor’s opinion that are as valid as anyone elses - lawyers included.
I have had reservations about the legality and efficacy of this program from the beginning. I still do. Leaning once again on authority, there are many people whose opinion I value that have said this program is unconstitutional just as there are those I consider equally knowledgeable believing the program both legal and constitutional.
But then there are those - Eugene Volokh and Orrin Kerr to name two - who aren’t sure. The reason sounds plausible; not all of the details (technical or otherwise) about how the program actually works have been made public. The Washington Post brought this out in their editorial yesterday:
The NSA’s program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don’t have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.
Readers of this site know that I have taken a rather jaundiced view of the Bush Administration’s stretching of the constitution using the “inherent powers” argument on secret programs of which we know little or next to nothing. It makes me uncomfortable even though I realize the necessity for the secrecy that must be maintained if these surveillance programs are to be effective. I was especially confused by the tortured reasoning used by the Attorney General in citing the Authorization to Use Military Force (AUMF) against al-Qaeda as a justification for what any objective observer would have to conclude is a broad based and troubling expansion of federal surveillance practices. It didn’t ring true then and it doesn’t now.
Having said that, I find it equally mystifying that so many on the left - including the probable next Chairman of the House Judiciary Committee John Conyers - have already charged, tried, and convicted the President for engaging in surveillance practices whose exact outlines we can only guess at and with absolutely no evidence that the program has been used injudiciously. From what we know about oversight, it has not only been reviewed periodically by the Justice Department (causing alterations in the program to satisfy some of the attorneys there) but the NSA has apparently put strict procedures in place that are designed to prevent the kind of abuse so worrisome to all of us.
Is it enough? Who knows. Certainly not Lamchop and his hysterically unbalanced, unyielding, absolutist opposition to anything this President has done to decrease the likelihood of another 9/11. This goes for the rest of the cockamamie left whose hatred for Bush, the Republicans, and conservatives along with a lusting for power that would be unseemly in another, less forgiving age has poisoned their reason and clouded their judgement to the point that they question the very basis for the increased surveillance; that we are at war with fanatical jihadists.
In this context, it is easy for them to dismiss anything and everything the government does to protect us. Indeed, in their feverish desire to kill the Bush presidency, they have undermined the war effort, giving tremendous aid and comfort to people who want to kill us all. Whether this is deliberate or not is beside the point. It is the logical outgrowth of their hatred.
Does this mean the legality and constitutionality of these programs shouldn’t be questioned? Of course not. All Americans should welcome a discussion between opposing viewpoints on these critical issues. But having a civil, reasoned debate about the lines that must be drawn between expansive civil liberties and terrorist surveillance as the Washington Post is calling for is falling upon deaf ears on the left. Instead, hysteria, paranoia, and a shameless emotional exhibitionism rules the day.
I have said repeatedly that in order to win the War on Terror, we must find a way to engage the left in a dialogue that will bring both sides closer together so that some kind of unity of purpose can be achieved. Simply put, we will lose this war if we remain divided as we are. And as I’ve speculated recently, perhaps it will take a liberal President to make that happen. The pain and angst demonstrated by the Democratic left in being out of power is so profound as to border on psychosis. Hence, they will only listen to one of their own when he/she is sitting in the big chair and faces the awesome responsibilities of the office as well as the frightening truth about the nature of our enemies.
Perhaps then we won’t be seeing the “War on Terror” in quotation marks quite as often and the constant questioning of motives when some horrific plot is uncovered as it was last week in Great Britain. The breathtakingly stupid response of many on the left in this country to that near miss (they found “martyr videos” from some of the suspects which would indicate what a very near thing this plot was to unfolding) shows a continuing lack of seriousness on the part of liberals toward our safety and a sublime ignorance of the nature of our enemies.
Judge Taylor’s decision on the legality of the NSA terrorist surveillance program read more like a press release from a candidate for public office than a legal opinion. This seems to be an almost universal take on Taylor’s writings. Even Lambchop agrees:
Yes, sure, it is true that the judicial opinion issued yesterday is very weak, in places borderline incoherent, in its reasoning with regard to some issues. Anyone can see that. Most everyone who commented on it, including me, pointed that out. But that does not undermine in any way the fact that this President has been systematically breaking the law for no reason other than he thinks that he can, and that judge’s rejection of that belief is quite eloquent and powerful. Most importantly of all, it is indisputably correct.
How we get from “incoherent” to “eloquent” in the space of two sentences only someone with the brains of a sock puppet can say. But it isn’t just the weak arguments and torturous language that jump out at one when reading the decision. It is the same familiar language used by leftist netnuts to describe the Bush Presidency that makes Taylor’s reasoning - or lack thereof - so eerie. It actually made me giggle a little when I realized that the pejoratives she hurled against the President had actually appeared on Lamchop’s website on numerous occasions. Chiding the President for acting like a “king,” is straight from Lamchop’s (and most of the left’s) list of Bush bashing ad hominems.
Is Taylor’s decision, despite its problems, the right one? It doesn’t appear to me that she knows any more about the way that the NSA program works than I do. Perhaps she was privy to information not available to the general public. If so, she doesn’t make that clear. And if she has no more knowledge of how the program works than the rest of us, how can her decision have any merit? It is one thing for sock puppets and other bloggers to state flatly that the program is illegal and unconstitutional. They are, after all, internet pundits and their opinions do not have the force of law. But when a federal judge, armed with exactly the same information that I or Lambchop has, writes an opinion that is in its surety a very serious indictment of lawbreaking by a sitting President, one can legitimately question other motivations that moved Taylor to come down on the side of the issue that she did.
In short, the revelations about Taylor’s past made by many righty bloggers are perfectly legitimate points of discussion considering all the factors at work in her issuing this opinion. And in that respect, Judge Taylor appears small minded, partisan, and eager for publicity - all points that call into question her ultimate judgement and the impartiality of her thinking that led to the decision in the first place.
No, I’m not a lawyer. But I’m not brain dead either. Nor am I insensible to the role that politics plays in our judiciary. But all things considered, Judge Taylor’s headline grabbing decision on the legality of the NSA terrorist surveillance program is not helpful to the kind of ongoing debate we must have on the nature and extent of civil liberties in war time. Bush may not be king. But he is Commander in Chief. And in that role, the President must be given expanded powers when America’s citizens are at risk. Does this mean that the NSA program is legitimate and legal?
I just don’t know. I guess it depends ultimately on whether or not you trust the President not to abuse the enormous power he has, even without this particular program. I wish it weren’t so. I wish everything could be revealed, all decisions about how to best to protect ourselves made in the light of day, all logic and reasoning used to encroach upon our civil liberties made public. But by the ultimate necessity of winning the war, such will not be the case.
The rationalists in this country recognize this. The hysterics do not. And therein may lie the difference between victory and death.
UPDATE
Not a single Democrat of any stature or visibility has stepped forward to criticize much less reject the opinion from Judge Anna Diggs Taylor declaring NSA surveillance of our enemies contacting their operatives inside our country to be unconstitutional. Their collective silence has grown more and more revealing as the chorus of legal commentary mocking the absurd opinion has grown throughout the day.
The Democrats cannot be seen to say anything against the opinion because of Kosputin and his minions. The party of Lamont is unhinged, and Judge Taylor’s opinion is now a new icon of the movement.
In fact, the Dems have been mostly silent on this program since it was revealed by the NY Times last December. Given the fact that the President, under the requirement of law, notified the intelligence committees of Congress of this program and that even Dems on those committees have mostly kept their mouths shut, one wonders that if those who know more about this program than Judge Taylor or Lambchop aren’t saying it’s illegal and unconstitutional, how we do we square this with Taylor’s decision?
Strange indeed.


