Patterico's Pontifications

8/19/2006

New York Times Cites Legal Experts Slamming Judge Taylor’s Decision — L.A. Times Readers Are Still in the Dark . . .

The L.A. Times yesterday published yet another article on the NSA decision on the secret surveillance program. It once again fails to cite widespread expert opinion that the decision’s reasoning is laughable and incoherent. L.A. Times readers will not know that fact unless they read blogs or other newspapers. Those foolish enough to get all their news from the L.A. Times (a scary thought, to be sure!) are left in the dark, as usual.

Why, even the leftist New York Times has decided to clue in its readers about the decision’s weakness! Courtesy of Bradley J. Fikes comes a link to a New York Times article titled Experts Fault Reasoning in Surveillance Decision:

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

Kinda makes the editors of the L.A. Times look rather clueless when they editorialized:

Her decision convincingly rebuts two of the Bush administration’s legal positions: that the president has the inherent constitutional authority to engage in surveillance of Americans, and that Congress approved such eavesdropping in 2001 when it authorized Bush to use “all necessary and appropriate force” against individuals and nations implicated in the 9/11 attacks.

As the New York Times article makes clear, the decision does not “convincingly rebut” anything:

“It’s hard to exaggerate how bad it is,” said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor’s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2002 that said it took for granted that Congress “could not encroach on the president’s constitutional power” to conduct warrantless surveillance to obtain foreign intelligence.

L.A. Times readers: once again, victims of pseudojournalism. How could the L.A. Times have left its audience so deeply in the dark?

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.

So the pathetic reasoning of this decision doesn’t mean that it will be reversed — just that it is silly to make a big deal out of it. So some ideologue leftist judge has ignored the precedents and relevant arguments to rule against Bush. Big deal. What else is new?

12 Responses to “New York Times Cites Legal Experts Slamming Judge Taylor’s Decision — L.A. Times Readers Are Still in the Dark . . .”

  1. Kennedy might not be totally hopeless on the issue of standing.

    nk (06f5d0)

  2. The LA Times really is just a fishwrapper, isn’t it? What does the leadership of the Tribune Company intend to do to save the investment, I wonder. At some point the idiocy has to stop.

    MTf (bbe3a8)

  3. The problem is that based on TV shows most people, probably including the LA Times editorial board think that judges are supposed to make sweeping pronouncements. How often in the movies or TV do you see some courageous lawyer convincing some judge to overturn a billion years of legal precedent in order to right a wrong for the greater good. It sinks in a becomes an accepted part of the culture.

    chad (582404)

  4. What would really be scary would be that the LAT simply doesn’t know there is a scholarly and legal backlash to this decision. Maybe since the Hitzlik fiasco no one is allowed to get on the internet to fact check?

    Pat Patterson (5b3946)

  5. Talking of scholarly / legal backlash Ann Althouse is astoundingly unimpressed:

    The shocking decision in ACLU v. NSA.

    I guess I should say I gagged on it, to keep up today’s neck/throat theme. But really… I’m truly shocked. It’s like the feeling you have when you’re grading blue books and you realize this one’s going to have to get an F. I finally had the time today to read the whole opinion in ACLU v. NSA… I mean, that was the whole opinion, right?

    Francis (3bd76f)

  6. So was Hamdan wrongly decided?

    It’s hard to discern from all the caustic scolding.

    steve (68cb22)

  7. The ACLU is the best freind terrorist could ever hire and judge taylor should be booted off the bench and barred from even judging a flower show

    krazy kagu (f63577)

  8. Pat, do you really think Kennedy can ignore the tons of relevant precedents that say just the opposite? Oh, wait…..

    CraigC (9cd021)

  9. Why dont we just say Bush has the power to do whatever he wants. Fascism is so comforting.
    Regardless of the legality of if Bush himself said something like ..Whenever you talk wiretapping you are talking about court orders because I am protecting the Constitution… words to that effect. another of his lies but who the hell cares..Constitution is just a piece of paper

    charlie (e583c4)

  10. Even if you’re making a stupid and uninformed argument, Charlie, you could at least try to be somewhat coherent.

    CraigC (9cd021)

  11. Charlie believes in the Al Qaeda Bill of Rights. The rest of us…not so much.

    nikkolai (b316fa)

  12. […] You shouldn’t need a money trail here to make you believe she was inclined towards the plaintiff. The opinion speaks for itself. But if there simply must be score-settling, this is where it’ll come from. Note in particular Canons 2A, 3C(1)(d)(i) and 5(B)(1). The twist here is that she’s not a trustee of one of the parties; she’s a trustee of an organization that helped fund one of the parties. One step removed. Thus it’s a question of the spirit of the law versus the letter. Note the commentary for Canon 5(B)(1): The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the judge’s relationship with it. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication. […]

    Hot Air » Blog Archive » Judicial Watch says NSA judge might have had conflict of interest (d4224a)


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