Patterico's Pontifications

7/7/2007

Did Judge Batchelder Support President Bush on the Merits of the Legality of the NSA Surveillance Program?

Filed under: Civil Liberties,Constitutional Law,Court Decisions,General,Law — Patterico @ 1:49 pm

I have read yesterday’s decision on the NSA warrantless surveillance case. It is a complex set of issues and a complex decision, and I am no expert in this area, so everything I say in this post is necessarily tentative and offered for purposes of discussion.

With that caveat, I would like to (tentatively!) dispute Glenn Greenwald’s characterization of both majority opinions as completely agnostic on the merits. It seems to me that one of them (Judge Batchelder’s opinion) asserts quite clearly that, based on what is known about the surveillance program, it does not violate FISA or Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Judge Batchelder’s assertions are offered as part of a standing analysis, and a ruling on standing grounds is not a ruling on the merits. But as Judge Batchelder describes it, the analysis of the plaintiffs’ standing on the statutory claims depends in part on whether there is a valid claim under those statutes — and, she says, there is not.

For example, at page 32, Judge Batchelder writes:

It is undisputed that the NSA intercepts international, rather than domestic, communications, so . . . Title III does not apply. Moreover, because the plaintiffs have not shown, and cannot show, that the NSA engages in activities satisfying the statutory definition of “electronic surveillance,” the plaintiffs cannot demonstrate that FISA does apply.

(All emphasis in this post is mine.)

Thus, I disagree with Glenn Greenwald when he insists that the ruling “had absolutely nothing to do with the merits of the case”:

[T]he majority opinion here did not make a single comment suggesting they believe Judge Taylor’s ruling on the merits was wrong, nor did they suggest that warrantless eavesdropping is legal. To the extent they commented on those issues at all, the majority opinion observed that the appeal “presents a number of serious issues,” while the other Judge in the majority (Gibbons) described in the first paragraph of her concurring opinion the “complexity” of the “merits issues.” Not a word in either of those two opinions constitutes a repudiation of the finding by Judge Taylor that the President broke the law and violated the Constitution.

Unlike the two judges in the majority, the dissenting judge (Gilman) did issue findings regarding the illegality of the NSA program once he found that the plaintiffs had standing to sue. And he decided conclusively that the NSA program violates FISA and that the administration’s two legal excuses are invalid. That means that the only two federal judges ever to rule on the legality of the NSA warrantless eavesdropping program — Judge Taylor and now Judge Gilman — have both decisively concluded that the President’s warrantless eavesdropping is illegal.

The language I quote from Judge Batchelder’s opinion above, I believe, contradicts (or at least significantly undercuts) Greenwald’s categorical assertion that no judge in the majority offered any opinion on the merits of any of the claims. Judge Batchelder clearly states that the plaintiffs show no statutory violation of Title III or FISA. In the extended entry, I go into detail regarding Judge Batchelder’s reasoning leading her to make that statement. But it seems to me — even though her conclusion in reached in service of a holding on standing grounds — the wording of Judge Batchelder’s analysis is inconsistent with Greenwald’s claim that “[n]ot a word in [her] opinion[] constitutes a repudiation of the finding by Judge Taylor that the President broke the law . . .”

Here are the details:

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Did Thompson Lobby for Abortion Rights Group?

Filed under: 2008 Election,Dog Trainer,General — Patterico @ 9:15 am

The L.A. Times today alleges that Fred Thompson once lobbied on behalf of an abortion rights group:

Fred D. Thompson, who is campaigning for president as an antiabortion Republican, accepted an assignment from a family-planning group to lobby the first Bush White House to ease a controversial abortion restriction, according to a 1991 document and several people familiar with the matter.

A spokesman for the former Tennessee senator denied that Thompson did the lobbying work. But the minutes of a 1991 board meeting of the National Family Planning and Reproductive Health Assn. say that the group hired Thompson that year.

Not only does Thompson (through a spokesman) deny it, but John Sununu, whom Thompson allegedly lobbied, categorically denies it:

Sununu said in a telephone interview: “I don’t recall him ever lobbying me on that at all. I don’t think that ever happened. In fact, I know that never happened.”

As evidentiary support, the paper cites no billing records, memoranda, letters, or other evidence of correspondence between Thompson and the group. Instead, the article provides quotes from two Democrats, and quotes (but does not produce) the alleged minutes of a meeting of the group’s board members.

It is inexcusable for the paper to fail to provide readers a copy of this, the only document supporting the allegation. I have complained many times about the paper’s failure to show readers key documents that are central to major stories. I can imagine no excuse for this failure, especially in this case. Perhaps the paper doesn’t want the document itself subjected to scrutiny? Do they fear that the bloggers who discovered Dan Rather’s memos were forgeries might take too close a look at the document underlying this story?

Let the newspaper provide the documentation to back up its claims first. Then we can discuss what, if anything, it means.

As for me, even if the allegation turns out to be true, it has absolutely zero significance for me.

I generally agree with Captain Ed that you can’t tell a lawyer’s personal beliefs by looking at the beliefs of his clients. Indeed, there are cases of lawyers representing clients whose beliefs they find repugnant. When Gerry Spence defended the racist Randy Weaver, or when ACLU lawyers represented the Nazis who sought to march at Skokie, nobody thought these lawyers agreed with their clients’ bigoted beliefs.

Then again, in those cases, the lawyers were fighting for a principle they believed in, whether it was the First Amendment, or the right of individuals to be defended in criminal court. If Fred Thompson lobbied on behalf of an abortion rights group, what grand principle would he have been defending? The principle that even the worst person deserves a lobbyist?

Thompson certainly had the option to turn down the work, assuming he did it to begin with. For this reason, I think the allegation (if true) shows at best that Thompson is not a fanatic on the abortion issue.

To me, that’s not a problem. I don’t need a fanatic in the White House. I just need someone who will do the right thing. Based on his voting record, I’m not particularly worried about Thompson doing the right thing on abortion.

I can’t speak to how ardent pro-lifers might react to today’s news, but if they’re smart, they’ll shrug it off.

P.S. If it’s important to know who a lawyer represented, can we once again discuss Hillary’s clients? Right, I know: it’s old news.

NYT: Vermin-Infested

Filed under: General — Patterico @ 5:45 am

The New York Times building is infested with maggots and other nasty vermin.

And I’m not just talking about Bill Keller and Maureen Dowd.


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