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?
