Saturday, August 19, 2006

Does Legal Reasoning Not Matter If the Decision Is the Correct One?

I have to say, I am starting to feel a bit uncomfortable with Glenn Greenwald's unbending insistence that yesterday's decision striking down the NSA warrantless surveillance program makes all concerns about Judge Taylor's unscholarly presentation and flawed legal arguments irrelevant. I am with Glenn wholeheartedly when he says that the NSA warrantless spy program defies both domestic law (FISA) and the Constitution. I am with him in believing that the president's theory of unlimited executive power in wartime is hogwash; that no one, least of all the president (who is sworn to uphold the Constitution) can toss the Constitution aside in the name of fighting terrorism.

Everyone who has commented on this ruling seems to agree that Judge Taylor's arguments on the merits are weak, that her reasoning is confusing and badly written. Glenn seems to think that, from a pragmatic point of view, it doesn't matter that the ruling was based on the weakest arguments against the warrantless surveillance program, because the case is of such enormous significance, and touches on such basic constitutional issues, that the federal appeals court is almost certain to address all the arguments from scratch. And as a practical matter -- given that I agree with the decision itself -- I hope Glenn is right on that score. But it troubles me that Glenn, although he does acknowledge Judge Taylor's lack of nuance and the weakness of her reasoning in important places, is so dismissive of attaching any real importance to it, and so impatient with the concerns expressed by others.

I am not talking about the objections of those on the far right who firmly believe that the president has the authority to violate any law in the name of national security. Those people would scream about the illegitimacy of any judicial ruling that held the executive branch to constitutional requirements. But when other law bloggers, who are just as widely recognized and respected for their legal expertise, intelligence, and fairness as is Glenn, say that maybe the quality of Judge Taylor's opinion does matter as much as the decision itself does, maybe we should listen and seriously consider their opinions.

First of all, to the extent that yesterday's decision did rely on the weakest grounds rather than the most unassailable arguments, that very well could affect this case's future on appeal. The decision itself was the right one; I don't want to see it reversed because administration lawyers are able to take advantage of holes in the district court's legal reasoning.

Jack Balkin, who agrees with the ruling itself, shares some of these concerns:

Although the court reaches the right result-- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence.

Second, the court does not really deal with a number of very good arguments for why the NSA program might be within the Fourth Amendment. The best argument for the court's position is that if the program reaches United States persons who are not agents of a foreign power, like the plaintiffs, it may be unconstitutional. But the court does not make that distinction.

Finally, the court seems to be very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision, which is probably the most relevant decision, resting its arguments primarily on the 2004 Hamdi decision. It also seems confused about what constitutes a violation of separation of powers. If the AUMF did in fact amend FISA, the government has a very strong argument that it falls into category one-- maximum executive power-- and not category three-- minimum executive power-- under the Youngstown analysis. The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty and I, among others, have elaborated. But I must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program. If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's suggestion that FISA is unconstitutional (to the extent that it limits executive power) is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that rehearses the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.

It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle.

Eugene Volokh thinks the First Amendment argument for the NSA program's illegality might be a sound one, but its soundness depends on whether the Fourth Amendment argument holds up; and Volokh thinks that argument is "not fully defended."

Orin Kerr, writing at Volokh Conspiracy, voices a different concern -- one that bothers me as well -- about Glenn's contention that it's the decision that counts more than the way it was reached:

... isn't the gist of Greenwald's argument somewhat similar to the arguments that the President's most zealous supporters have been making all along? In their case, of course, they have made such claims in response to criticisms of the Administration's legal defense of the NSA program, rather than in response to criticisms of Judge Taylor's opinion striking it down. But you've seen the argument many times, including in many VC comment threads: Rather than dwell on the "fascinating intellectual puzzle" of whether the NSA program is legal, we should focus on the really important question of defending the country against terrorists. In other words, stop quibbling over little legal issues and get back to the big picture. To be fair, this is often a very legitimate argument; legal niceties aren't everything. But it's not obvious to me why we would reject this advice when analyzing the DOJ's defense of the program but not when analyzing Judge Taylor's opinion striking it down.

Exactly right. Here's but one example, from Sister Toldjah, of how that "argument" works:

... we do live in an era where Bush-hatred trumps concern for our national security to a certain segment of the Democratic party. A Bush loss in the war on terror is victory to the Bush-haters ... and as you know, a Bush loss in the war on terror is not just victory to them, but a significant victory for Islamofascists, too.

Every time I read racist, totalitarian screeds like this, I want to cringe. For the right, yesterday's decision is not about the Constitution or democracy or the rule of law: it's about 'trying to destroy a vital tool in the war against terror.'

Yes, I agree that Bush's warrantless surveillance needed to be struck down because it "break[s] the law, violat[es] the Constitutional rights of American citizens, and us[es] radical theories of presidential power which are the opposite of our constitutional framework," but that truth does not trump or invalidate concerns about the soundness of a judge's legal reasoning (if those concerns are legitimate). Let's leave the ethically challenged thinking to the other side; we on the left are better than that.

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