Semi-Daily Journal Archive

The Blogspot archive of the weblog of J. Bradford DeLong, Professor of Economics and Chair of the PEIS major at U.C. Berkeley, a Research Associate of the National Bureau of Economic Research, and former Deputy Assistant Secretary of the U.S. Treasury.

Thursday, August 24, 2006

Judge Taylor and FISA

Gail Collins and the New York Times editorial page should be ashamed of themselves for printing an op-ed by Ann Althouse attacking Judge Taylor's ruling enforcing FISA,

J.D. Henderson writes at Intel Dump:

INTEL DUMP - More on ACLU v NSA: Today's NYT's carries an editorial about how bad Judge Taylor's opinion was. It reads in part:

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is "just a few pages of general ruminations ... much of it incomplete and some of it simply incorrect."

Sounds damning. Except... Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force? Really? Immensely difficult?

No. Immensely SIMPLE matters, not difficult.... [Bush] admits to violating FISA on the grounds he has the inherent authority to ignore laws he doesn't like explains why so many find the opinion poorly reasoned. Judge Taylor made short shrift of the administration's ridiculous argument, and that upset many people....

But they were not difficult matters. They were as simple as I have just laid out. The president admits breaking the law, but says he can do so because of two reasons: 1) inherent powers, and 2) the AUMF. Judge Taylor said no to both.... [S]he is chastised... because she did not find the question "immensely difficult."...

The editorial continues:

The potential for the president to abuse his power has nothing to do with kings and heredity.... [T]he president is not claiming he has powers outside of the Constitution.... He's making an aggressive argument about the scope of his power under the law.

Really? His claims of inherent executive power that trumps the 4th Amendment and a criminal statute passed by Congress do not have anything to do with kings?... Weren't the checks on the executive branch designed precisely because of the tyranny of kings? And if he isn't arguing that he is above the law, what do we make of the claim that he can ignore FISA (A LAW) because of his "inherent" powers as president? Isn't that a claim that he is above the law? Isn't that the very argument he is making?

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president.

No. Not really. I guess I should have hundreds of citations and pages of exhaustive analysis that support my radical idea that the president can not ignore laws because he doesn't like them. But I won't. Why? Because it is not a serious argument.... That does not mean that Judge Taylor ignored the argument, she just found it very simple to dispose of, and did so quickly....

The biggest fear of this administration must be that the Supreme Court finds the administration's argument just as easy to dispose of -- for then the claim of a simple misunderstanding of "immensely difficult" points of nuanced legalese becomes untenable. We would have instead just what Judge Taylor found: a simple law, a clear Constitutional command, and an obvious and blatant violation of both.

The author of the NTY editorial writes on her blog:

It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality.

Perhaps because it was simply not difficult?...

The talk of poor reasoning or "difficult" legal issues is a smokescreen that attempts to make it seem reasonable that the president could have knowingly violated a criminal statute in violation of the Constitution -- in short, the pundits and the administration want to convince you that if the president did commit a felony (he did), well, it was a simple mistake due to the immensely complicated law.... [But that immensely complicated law was exceedingly simple. The law said get a warrant. The president said he did not have to follow that law. Judge Taylor said no way.

It didn't take a legal treatise to explain why Bush was wrong, and the arguments against this opinion are based on a flawed premise that this was a difficult decision that required heavy scholarly effort.

It did not....

This was a short and simple opinion on a very easy question, and to expect anything else means you think the president might have had a tenable position and the judge should have spent pages and pages analyzing his claims. He is not a king, and thus his arguments are quickly disposed of, as they were in Judge Taylor's opinion -- an opinion that was well-written despite what you hear from the critics.


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