Patterico's Pontifications

8/18/2006

Greenwald: Untrammeled Executive Power Bad, Untrammeled Judicial Power Good

Our pal Glenn Greenwald, who opposes untrammeled executive power, appears to be hunky-dory with untrammeled judicial power, as long as it is exercised to reach a result he likes.

As I argued last night, Judge Taylor’s NSA opinion is a legal disaster. It is conclusory and overblown. It utterly fails to engage (or even acknowledge) the most serious arguments made by the Bush Administration.

But don’t take my word for it. Take the word of a prominent Constitutional Scholar who shares an IP address with his biggest fans, including Thomas Ellers, Ellison, Ryan, and Wilson. In a comment on Volokh.com, our Scholar says:

Although I agree with all of the conclusions the court reached, the opinion is horrible in how it analyzes those issues and defends its conclusions in several important respects.

On Salon he says:

[C]ommentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak and thus vulnerable on appeal with respect to several critical issues. The court, for instance, barely explains why warrantless eavesdropping violates the Fourth Amendment, and its discussion of why such eavesdropping violates the First Amendment borders on the incoherent.

And on his own site he says:

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.

Shorter Glenn Greenwald:

Sure, Judge Taylor’s NSA opinion is poorly reasoned dreck. But she reached the right result — and that’s all that matters.

In Greenwald’s view, as long as the judge uses high-flown, quotable rhetoric to reach what Greenwald believes to be the correct result, it’s no big deal if the opinion’s reasoning is so lacking that it would earn a failing grade if submitted by a first-year law student at a third-tier law school.

This is a very dangerous view of the judiciary, because once judicial decisions become unhinged from any defensible logic or reasoning, they become nothing but an exercise of raw judicial power.

The problem is not just that Judge Taylor can’t reason her way out of a paper bag. It’s that she didn’t even try. As numerous scholars have already observed, whenever it looks like she is about to get to the analysis of an issue, she simply says that she is “undisputedly” correct, and moves on to the next issue.

That word “undisputedly” . . . I do not think it means what she thinks it means.

For example, Section V of the opinion deals with the Fourth Amendment. It quotes the amendment itself, and some case law setting forth general principles. She then says:

The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

“Ah,” the reader thinks. “Now we’re getting to the meat of it.” At this point, the reader looks forward to Parts V.A, V.B, and so on, through at least V.E — sections that address and reject the numerous arguments (such as the border exception, for example) tending to show that the program is consistent with the Fourth Amendment.

And, just as you think the discussion is on its way, the judge moves on to Part VI — the First Amendment. “That’s it?!” the reader says in alarm. “That’s the whole analysis?! A couple of “undisputedlies” and an “obviously” and you’re done?!?!”

Yup. And the whole opinion is like that. As the Washington Post said this morning:

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful. . . . [S]he insists that Mr. Bush has “undisputedly” violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law. But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous . . . [T]hese are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

“Because I said so” is a great phrase for harried parents faced with bickering toddlers. But as justification for a judicial opinion in a high-profile legal opinion on an issue of critical national import, it falls woefully short of the mark.

Alex Kozinski once quoted a judge as justifying his ruling by saying: “Just because I said it, counsel.” Kozinski said:

I could stop right here and have no trouble concluding that the judge committed misconduct. It is wrong and highly abusive for a judge to exercise his power without the normal procedures and trappings of the adversary system—a motion, an opportunity for the other side to respond, a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law, though they surely serve those purposes as well. More fundamentally, they lend legitimacy to the judicial process by ensuring that judicial action is — and is seen to be — based on law, not the judge’s caprice.

In other words, when a judge justifies his opinion by saying “Because I said so” (or, as here, “I am undisputedly and obviously correct”), the judge’s actions lack real and apparent legitimacy. They lose their quality as an expression of lawful authority, and become nothing but an exercise in raw and untrammeled judicial power.

And herein lies the irony: Glenn Greenwald claims to be concerned about untrammeled executive power, yet he seems utterly unconcerned about untrammeled judicial power. Sure, Judge Taylor’s decision can and will be reviewed by appellate courts, but Greenwald has made it clear that he will applaud even the most weakly reasoned decision by any court, including our nation’s highest court — as long as it comports with his view of the law. This despite the fact that Glenn Greenwald wears no black robe (at least as far as I am aware), has not been presented with the legal briefs, and has not reviewed the relevant classified information.

As long as he thinks the result is right, he doesn’t care that much how the court got there.

The support he shows for unlimited judicial power is far more dangerous to the Republic than the expanded executive powers that he opposes. That’s because if the public doesn’t like what the executive is doing, the public has the option of replacing the President. The judges, absent impeachment, are there for life.

So much for an intellectually honest concern about limiting government power.

P.S.: Orin Kerr has more.

37 Responses to “Greenwald: Untrammeled Executive Power Bad, Untrammeled Judicial Power Good”

  1. Isn’t he just concurring in the judgment?

    Also, isn’t he a willfully disingenuous douchebag?

    Good DAY, sir!

    Allah (0b6127)

  2. Glenn must be beside himselves with anxiety over when Judge Taylor’s decision will be overturned.

    BumperStickerist (002671)

  3. Oh, I’m not so sure it will be. Remember, it’s the Kennedy Court. He can rewrite the opinion with a few more quotable and high-flown phrases, to make sure *he* and not Judge Taylor is the one who gets the accolades and quotes from the editors of the New York Times.

    Patterico (50c3cd)

  4. Isn’t he just concurring in the judgment?

    Also, isn’t he a willfully disingenuous douchebag?

    Good DAY, sir!

    Another screeching, hysterical comment from screeching, hysterical Allah. (If you don’t understand what I mean, read this post and all will be clear. Indeed, anyone who describes Allah as “hysterical” or “screeching” — and who ignores the updates he does to a post — is indeed willfully disingenuous.)

    Patterico (50c3cd)

  5. Btw, there’s nothing wrong with concurring in the judgment. What I object to is the argument that it hardly matters how the court reaches the result, as long as it’s right.

    Patterico (50c3cd)

  6. Good one, Allah. Patterico, check out Orin Kerr’s comments; he’s definitely not convinced that a FISA violation necessarily occurred. Between that, Mona Greenwald’s dissembling and the plain language of FISA itself, I’m gravitating toward the view that no FISA violation took place, or that if one did, the real offense was criminal stupidity.

    Xrlq (0035c7)

  7. Intellectually dishonest would be for Greenwald to ignore or misrepresent the quality of the writing — but that’s not what he does. He was quite honest about it. I would like to see this level of honesty about hot-button issues much MORE.

    tubino (36591e)

  8. I would like to see this level of honesty about hot-button issues much MORE.

    From Greenwald? Nice of tubino to recognize how dishonest Greenwald usually is.

    Stashiu3 (404f9e)

  9. Intellectually dishonest would be for Greenwald to ignore or misrepresent the quality of the writing — but that’s not what he does.

    “Eloquent” and “powerful” were honest descriptions of the writing, then?

    Good grief.

    Anwyn (ba3a1d)

  10. Patterico:

    Greetings in the Name of Allah, the Merciful, the Compassionate. Although you, yourself, have chosen to be my enemy infidel dog that you are, you nonetheless provide comfort to me in my gloomy, dank cave in western Pakistan because every day you reveal to me another ally, from your own people, who for his or her own perverse reasons seeks to undermine every rational step your government takes to keep the heroic martyrs of Al Qaeda from killing as many of you as they possibly can. Perhaps they labor under the illusion that we will kill them last or, perversity of perversities, that they will qualify as one of my 72 virgins. Who knows the mind of a mad person? Praise be to Allah for their affliction in any case.

    With fondest regards,
    OBL

    osama bin laden f/k/a nk (32c481)

  11. once judicial decisions become unhinged from any defensible logic or reasoning, they become nothing but an exercise of raw judicial power

    I’m afraid this has been the nature of the American legal system for some time now. How is this laughable, pitiful excuse for a legal opinion any more credible than, say, Kelo, Romer, Roe, Heart of Atlanta Motel, Wickard v. Filburn, etc.?

    You may agree or disagree with all, some or none of the results of these opinions. (There are many, many others.) But none is defensible as a matter of Constitutional law. That is why the Left has worked so hard to re-define the methods and mechanisms of Constitutional Law to be something other than “law.” The very idea of a “living Constitution” renders it something very much like “policy,” not law.

    The American legal system is swirling down the toilet. It is a shell of its former self. Judges (or their clerks) may pretend to be applying the law, they may use the same buildings, and they can decorate their opinions with as much flowery language as they can squeeze out of their Thesauri. It’s not law. It’s a free-floating delusion, using some elements of a semi-legalistic language. All that’s left is power.

    You are, essentially, debating with the Left over whether the American legal system swirls down the toilet clockwise or counter-clockwise.

    George Gaskell (3062ec)

  12. Thank you to the various legal folk who favor the result but are intellectually honest to say the opinion is not worth much.
    As for Mr. Greenwald, he was honest in his statement, for that he gets credit, but I’m not sure it is “intellectually honest” in the same manner.
    With regards to #11, a friend of mine tells the following story:
    In his first constitutional law class, they had a guest speaker who was quite prominent in the ACLU. He stated that while he liked the outcome of Roe, he thought the reasoning was “bending the Constitution” He then thundered, reminiscent of Moses coming down from the mountain,”AND DO YOU KNOW WHAT HAPPENS WHEN YOU BEND THE CONSTITUTION!?!?” At this all of the law students tried to lower themselves in their seats, quivering with fear and dread, awkwardly mumbling, “No sir, we don’t know, please tell us.” “YOU GET A BENT CONSTITUTION!!!!” Intellectual honesty at its best…too bad I never saw that covered in the Philly Inquirer.

    MD in Philly (3d3f72)

  13. Are there any consequences to judges for being overturned on appeal? I mean, if I kept making decisions that my management felt were so bad they needed to stop them from being implemented, I wouldn’t be employed long. How often does a judge have to be overturned or write decisions like this one before she’s kicked off the bench?

    Ric James (239fa7)

  14. #13. Nope. She’s there for life. Unless she commits a crime.

    nk (4cd0c2)

  15. Harruummph I say! Gentlepersons, (sigh) let me say this slowly. From the Constitution, in the bright sun of LIBERTY, there was a penumbra, casting a shadow (whaaaaa… how can a shadow cast a shadow? ..shhhh, he’s not done yet.) from whence sprang implied rights that certain persons could see. Let us for the sake of example call these persons “Freemasons”. So the Freemasons saw these secret rights…and…uh, um,…. the END.
    CALIFORNIO, P.J., ad hoc, S.J., O.B.E.

    I respectfully dissent. though dead and in the ground, ere these many years, I can still smell the putrid stench of this opinion by this “Taylor” meat puppet, even over the smell of my own dessicated mortal flesh. If this is what passes for legal analysis in your day, thank the Lord I am dead. HOLMES, Oliver Wendell

    Californio (2f437b)

  16. Patterico, doesn’t the 6th Circuit have something to say about the case before “sweet mystery of life” Kennedy gets his hands on it? And if the case does make it to the Supreme Court, maybe (I hope and pray) President Bush will have had another Justice accepted by the Senate, making Kennedy’s tendency to bloviate moot.

    Brian (86ff19)

  17. Re: Judge Taylor’s decision in ACLU, et. al. v. National Security Agency, et. al.,

    Plaintiffs here contend that the TSP [”Terrorist Surveillance Program”] has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations. In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients. All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.

    WTF? “Believes to be terrorist suspects?”

    Translation: The plaintiff leftists are communicating with terrorists.

    There, fixed that.

    All of the opinions on this judicial farce seem to miss one important point. Why would a judge be so eager to reach such a conclusion so as to potentially jeopardize her career? Who is she serving? (The opinion subjects her to considerable ridicule, and deliberately ignoring precedent has been cited by some as grounds for sanctions, for example.)

    Here’s a good reason:

    The leftist “plaintiffs” have admitted they’ve been communicating with likely terrorists. They know they’re dirty, and they suspect or know the NSA has the goods on them and that prosecution is likely.

    Having shopped for and found a friendly in-the-pocket leftist federal judge to almost whimsically and arbitrarily declare the NSA surveillance program unconstitutional, and injunctioning it to stop immediately, is about the only way for the “plaintiffs” to avoid being destroyed and jailed.

    Of course, you and I may get killed as a result, but what’s a little death and destruction to good leftist malignant narcissists in their pursuit of their dreamy Marxist utopia?

    It is also certainly in the Public Interest to know exactly who these “plaintiffs” were communicating with, why, what was said, and what messages they may have relayed for their “overseas clients” and to whom.

    sss111 (35f79f)

  18. […] In today’s post Greenwald: Untrammeled Executive Power Bad, Untrammeled Judicial Power Good Patterico hammers GG mercilessly. […]

    The Real Ugly American.com » Blog Archive » Patterico Pummels Greenwald (4e8dcb)

  19. Btw, there’s nothing wrong with concurring in the judgment. What I object to is the argument that it hardly matters how the court reaches the result, as long as it’s right.

    Yeah, I used to try and get away with that in geometry, using something I called the Magical Postulate. Mr. Mehlman didn’t buy it, though.

    Dan Collins (208fbe)

  20. Our pal Glenn Greenwald, who opposes untrammeled executive power, appears to be hunky-dory with untrammeled judicial power, as long as it is exercised to reach a result he likes.

    Of course he does. They all do, and are too stupid to see the incongruity.

    Lecturing on “authoritarianism” and such while cheering on unelected judges that ignore the law is just a bit incoherent and hypocritical.

    The Ace (8d7f7b)

  21. Our pal Glenn Greenwald, who opposes untrammeled executive power, appears to be hunky-dory with untrammeled judicial power, as long as it is exercised to reach a result he likes.

    The advantage of judicial power is that they don’t have, like, cops and guns and all.

    actus (6234ee)

  22. Re #14, Perhaps the time is ripe to consider at what level, if any, lifetime appointments are appropriate in any branch of a representative government.

    Black Jack (83a6fe)

  23. The advantage of judicial power is that they don’t have, like, cops and guns and all.

    Hell, no. Not like they can ask the cops for anything. Not like they don’t pull the switch themselves.

    Dan Collins (208fbe)

  24. Hell, no. Not like they can ask the cops for anything

    Well the cops are executive power.

    actus (6234ee)

  25. The advantage of judicial power is that they don’t have, like, cops and guns and all.

    My, you are quite the ignoramus. You are not aware of sheriff’s offices? Marshal services? These organizations are assigned, whether at the federal or the state level, to implement the orders of the judges to which they are attached.

    If you think that the raw power of “cops and guns and all” is not what lies behind every judicial decision, try ignoring one sometime.

    In any event, “actus,” you also seem to misunderstand an important aspect of the judicial system — its legitimacy (in theory) does not derive from its rulings, but from the reasons it gives for its rulings.

    “Obviously” is not a reason.

    George Gaskell (3062ec)

  26. You are not aware of sheriff’s offices? Marshal services? These organizations are assigned, whether at the federal or the state level, to implement the orders of the judges to which they are attached.

    Thats a good point. Let me rephrase and say they don’t have armies and tanks.

    -we have all kind of mobile phones for sale.

    Terrorist!

    actus (6234ee)

  27. No, George, you can’t have more executive powers…

    Read it for yourself.. There are some particularly dry dismissals of the State’s Secrets privilidge claimed by the governement, and one can almost hear “loose lips sink ships.” She patiently explains that in order for a claim of state secrets privil…

    Graphictruth (59ce3a)

  28. Good grief, Patterico, if your automatic spam filter is so lousy that it couldn’t catch that #26, I can see why you complain about comment spam.

    Instead of deleting it, why don’t you send a bill to the spammer for advertising? Use all that scary lawyer talk on him.

    Doc Rampage (4a07eb)

  29. […] P.S. It’s important to emphasize that the weakness of the decision doesn’t mean that the secret surveillance program will eventually be upheld by the Supreme Court. In light of the Hamdan decision, I tend to think it won’t be. As I noted yesterday, unless we get a new Justice before the case makes its way to the Supreme Court, Justice Kennedy will be deciding this case — and he will probably be deciding it in a way that he believes will please the editors of the New York Times. The Hamdan decision is a clear foreshadowing of this. […]

    Patterico’s Pontifications » New York Times Cites Legal Experts Slamming Judge Taylor’s Decision — L.A. Times Readers Are Still in the Dark . . . (421107)

  30. I don’t see how coming to the correct result as a matter of law translates into “raw legal power.” I guess I’m not squinting hard enough.

    jpe (b6f329)

  31. It is “undisputed” only to Judge Nara Lee Taylor and those who agree with her. Otherwise, it wouldn’t be in court. Nor would a stay have been issued so the “undisputed” could be disputed further.

    Noel (d8da01)

  32. btw, if a court cannot provide any redress, does that affect standing?

    The plaintiffs say they are providing counsel to foreign terrorists (a crime itself?) and that they and their terrorist clients are afraid that they are being overheard.

    Even if the Administration got secret warrants, would they then feel free to talk? In either case, they would be listened in on without their knowledge and their speech would still be “chilled”. They would still have to assume they were bugged. So how can the court provide relief?

    Noel (d8da01)

  33. […] I am not impressed with this criticism of Judge Taylor. (Via Hot Air.) I think Judicial Watch is stretching here. If you want to criticize her for her past meddling in cases to steer them to liberal judges, I think that’s fair game. And of course, criticizing her terrible NSA opinion is a no-brainer. But straining to find financial conflicts of interest where they don’t exist — don’t bother. […]

    Patterico’s Pontifications » Judge Taylor Has No Serious Conflict of Interest (421107)

  34. I have no formal legal training, so I will not attempt to add to the discussion in that realm. I most certainly have learned from this thread, and for that I thank you all.

    Applied logic may have something to say about these events, even though it is a discipline almost diametrically opposed to legal proceedings.

    Since everyone seems to agree that ‘judge’ Taylor’s rendered opinion is horrendously flawed, perhaps a cursory examination of what was said will render a founding motive. Citing language from post #17, scholars and journalists as plaintiffs state that their scholarly or journalistic research is impeded by the TSP. That they are communicating with persons suspected by the government of having a connection to terrorism is the significant point. Apparently those plaintiffs wish to argue that the government is doing them harm by by attempting to surveille such communications.

    So a summary becomes apparent:

    1. Certain U. S. citizens or residents want to communicate with terrorists (for reasons benign or malicious isn’t considered or relevant)

    2. The U. S. government wants to find, and kill or imprison, terrorists. Included in this goal is the surveillance of known connections to acquire new intelligence

    3. Judge Taylor believes that the war aims of a government must be supressed in favor of the scholarship or journalism of a U. S. citizen. She believes this on its face, at a visceral level, or she would have felt compelled to provide a proper citation of precedent and valid supporting arguments in her opinion

    Questions emerge:

    1. Does the First Amendment prefer the desires of an individual over the protection of the nation?

    2. Does judge Taylor’s history on the bench indicate that she would ever present an opinion favoring the government over ‘scholars and journalists’?

    3. (most important) Would the plaintiffs have been so impeded, indeed would they have had any case at all, if the TSP operation had not been leaked?

    These scholars, journalists, and lawyers whose work is harmed would have communicated in blissful ignorance with their contacts and clients, and the government would have likely gained invaluable intelligence had the program remained secret. While it is not an argument that carries the weight of evidence in a legal sense, the fact that the overseas contacts of these plaintiffs have ended their communication is very suggestive that they have much to hide.

    It would seem to my non-legal mind that the appropriate defendent in this particular case should never have been the NSA, but the parties who ‘outed’ the operation, ‘in the public interest’.

    Just a thought.

    Freelancer (cb897a)

  35. Freelancer asks

    Does the First Amendment prefer the desires of an individual over the protection of the nation?

    If the “yelling fire in a crowded theatre” dicta means anything at all, then clearly not.

    antimedia (1cee5d)

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