I often agree with Glenn Greenwald on constitutional questions, but I think he's out to lunch in this post, where he criticizes those who criticized Judge Taylor's ruling in the NSA lawsuit. Many legal scholars have criticized many aspects of the ruling, and I think rightfully so. Personally, I found the ruling quite clever in its disposition of the state secrets privilege argument from the government, but that just sets the plate for the constitutional and statutory questions to be answered, and I think she did a fairly poor job of that. The Washington Post had an editorial about some of those weaknesses in the ruling and Greenwald doesn't like it at all:
What really matters, says the Post in its unbelievably petty editorial, is not the profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law and has been exercising that power aggressively and enthusiastically in numerous ways over five years. No, that is merely a fascinating intellectual puzzle, something for super-smart experts to resolve with great civility and high-minded, complex discussions as they ponder what the Post calls the "complicated, difficult issues" raised by the administration's lawlessness.To the Post, what really matters here is how impressed law professors are with the complexity and nuance in Judge Taylor's written decision. Condescendingly scoffing at the judicial quality of her opinion is of infinitely greater importance than objecting to the growing extremism and lawlessness to which our country has been subjected.
Frankly, this is the sort of anti-intellectual poppycock we're used to seeing from the right, with all their absurd complaints about their "elite" enemies. It's quite disappointing to see this sort of shrill rhetoric coming from Greenwald. It is entirely reasonable to agree with the conclusion of a ruling and find the reasoning used to get there unsatisfying. Is Greenwald going to accuse Jack Balkin of just being a shill for Bush's authoritarianism as well? After all, he offered a far more scholarly critique of the ruling than the Post did, and he's one of those law professors at whose concerns for intellectual rigor Greenwald sneers. He cites Balkin in support of one of his arguments, but does not see fit to include his virtually identical concerns in his cavalcade of disapproval.
It is pointless and absurd to scream about how wonderful a ruling is because you like the outcome if the result is that its weak reasoning gets it easily overturned on appeal, which is exactly what I predict will happen. We can certainly make the case that the result reached is a good result, and I've done so. But all of that does no good if it gets overturned. It becomes nothing but a footnote in history rather than a serious attempt to put an end to this administration's lawlessness.
Greenwald also seems oblivious to the fact that his argument is virtually identical to the argument made by those who mindlessly support the administration's policies. Isn't his dismissal of serious legal analysis the very same argument used by Bush's apologists when they say that what really matters is not the minutiae of legal niceties but the larger picture of fighting the terrorists? Simple-minded extremism, especially when accompanied by ridiculous dismissals of serious legal scholarship, does nothing to seriously defend a position. It's absurd regardless of who invokes it.
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I read Glenn's column as basically saying he agrees that the ruling wasn't particularly well written, and that there are some legitimate complaints about the reasoning the judge used, but that the Post's critique was not about those things. Instead, I took him to mean that the Post was engaging in some kind of deconstructionist tea-party country club sneering at how unsophisticated the writing or construction was, instead of being about the meat of the case.
Where I agree with you, Ed, is that Glenn seemed to focusing more on the fact that he agrees with the outcome and less with how well the judgement is supported. However, that wasn't really the point of this particular article -- he was venting about the Post's condescending style and discinclination to engage in substantive discourse, a subject he's visited several times in the past.
But then, I draw pretty pictures for a living, what the hell do I know about anything?
I agree with Jeff. If you've read much of Greenwald, one of his recurring complaints with the media in general is that they tend to trivialize issues by turning them into some sort of game played by the elite. It's not anti-intellectualism or even anti-elitism, but rather an anti-foppism, if you will. As such Greenwald is pissed that the Post is ignoring the substantive issue (has the Bush administration caused a constitutional crisis by knowingly and continually breaking the law) in favor of what Greenwald sees as the more trivial issue of the level of legal scholarship in the decision.
He's gone on to argue in his comments and at Volokh that this latter point is not important since the next level of appeal will be looking at the result rather than the reasoning and provide their only arguments, whichever way they go, from the ground up. IANAL, so I've no idea if that's true, but that's his argument.
This is an appeal from Summary Judgement, so it will be treated as taking the arguments of the Defendant (the Gov't) in their most favorable light. The judgement as it stands will be negated.
However, the appellate Court has the option (it may decline) of considering the evidence and holding for Summary Judgement upon other grounds than the trial Court. So they may consider Hamden after all. The issue is whether they see the case as purely civil rights or as separation of powers.
If it is civil rights, they will apply some sort of balancing test in which the government's Secrecy Doctrine will undoubtably win. If it is separation of powers, Plaintiffs win based upon Youngstown. It really is that simple at this point.
I really like the high-minded langauge of Judge Taylor's decision, but the argument is potentially a disaster, because the government can argue that since Taylor accepted this as a civil rights case, the appeals Court MUST apply the State Secrets privilege. With luck the 6th Circuit will ignore the actual decision and substitute proper separation of powers analysis.
Note: The 6th Circuit tends to the conservative side. I wonder if the STACLU crowd will complain about forum-shopping here?
Glenn takes a little more time today to explain his position that rulings are not overturned on the strength of their arguement, but on the conclusions they reach.
As Glenn puts it,
I too have to differ with you here, Ed. I think you missed the thrust of Greenwald's point: he wasn't bashing the Post because they claim to know things, the way many of Bush's anti-intellectual followers do. Rather, he was bashing them because they used their claim to deeply understand the issues as an excuse to avoid taking a conclusion on them, and to assert that only shrill, hysterical partisans actually have an opinion on whether Bush broke the law, as opposed to sober, profound legal analysts such as themselves. Here's the relevant section of Greenwald's post:
Greenwald's argument was that Bush plainly did break the law, and that it does not mean that your comprehension is inadequate or your reasoning shallow if you take a stand on that position. You can understand an issue well and still have a strongly held opinion about it. I've noticed this tendency of the media many times myself, so I'm glad he took the time to address it.
Yeah, I agree you're the one missing the point here, Ed. The government has been illegally and once secretly, now brazenly spying on Americans with no oversight for years and the best the Post can come up with is: " The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights." No it isn't. It was blatantly illegal and the Hamdan decision has removed any pretence that the administration's legal arguments had a shred of validity. Yet the Post doesn't say that. Instead it bashes the judge's reasoning and strikes a pose of wrestling with difficult legal questions.
I don't think so. The Post was not the only one he was bashing there, he also linked, negatively, to scholarly critiques of the ruling from Eugene Volokh and others. I read it initially as a broadside against debating the legal issues in any depth when one really should just be railing against the Bush administration, and I've now reread it two more times and I still read it that way. I still read it as saying, "Forget about the details, just throw bombs at Bush." Now, I've made clear that I think the administration's position is absolutely wrong, that warrantless wiretapping is clearly unconstitutional and that the administration's defense of that program essentially means that no one can ever challenge the constitutionality of any policy as long as they claim it's necessary for national security, which I find extraordinarily dangerous. I think Bush deserves to be denounced here, and in very strong language. But Greenwald is flat out wrong when he says that only the conclusions matter, not the reasoning used to get there. That, to me, is putting political partisanship above respect for truth. Bad arguments should be denounced as bad arguments, regardless of whether we agree or disagree with the conclusions. And anyone who thinks that the reasoning of a lower court decision has no effect on whether it will get overturned is simply fooling themselves. Well written decisions are far more difficult to overturn than badly written and badly reasoned ones. And the fact is that Taylor's ruling can justifiably be both praised and criticized.
But, Ed, Greenwald's own first post on the ruling went through the weaknesses in reasoning in detail. But it didn't say, like the Post (I haven't read Volokh yet): "How disappointing. Hopefully some better judge will let us know whether this programme is illegal." It said: "Even though the reasoning on some prongs is weak, the overall case is very strong because x, y, z." Surely that is the right approach. If the Post thinks the programme is illegal, and frankly I find it hard to believe anyone besides Yoo or Addington who claims they think it isn't is telling the truth, they should have the balls to say so. This is far too important an issue to sit on the fence. We're talking about the very essence of constitutional democracy here.