STACLU Reply on NSA Ruling

Glib Fortuna has written a response to my post on the NSA ruling from Judge Taylor the other day. Predictably, it's full of illogical arguments and inflated rhetoric. He begins with a false dichotomy:

It would be redundant for me to provide my own analysis at this late date, so my focus is on the Left's reaction to the ruling. What I have found perfectly sums up how the different sides of the spectrum view today's world. Both sides believe they are fighting the greatest threat to civilized existence. The difference is, the Bush Administration (like the tactics or not) thinks that "Islamic Fascism" is the greatest threat to America while the Left has chosen Bush as the greatest threat TO ITSELF.

This is standard rhetoric from simpleminded partisans like Glib. There are only two possible sides in this dispute, and the other side is of course defined by the looniest people we claim are in the same category. But this is nonsense on both counts. I certainly do not believe that Bush is a greater threat than radical Islam. I think that radical Islam is the single most dangerous and most reactionary force for a return to the dark ages in the world today. Bush is many things - unprincipled, dishonest, utterly clueless in many situations and with very little respect for our constitutional system - but even his darkest views do not come close to the barbarism of the Islamic totalitarian worldview. But none of that justifies or defends overthrowing the separation of powers or ignoring important constitutional checks and balances, and we must fight attempts to weaken those protections tooth and nail.

The consensus of the Left-os-fear punditry and politicians looks at this as "repudiation of the Bush Administration," not as a well-reasoned legal opinion that vindicates the "Constitutional rights" of the "aggrieved." This ought to shine the light on the true motives of the Left -- bring Bush down at any cost. The reaction was the same in the wake of the Hamdan decision. "We got him!" (Um, not any terrorist, but Bush) Whether or not you agree with the methods used by the Bush administration, looking at both sides, you can't help but to conclude that one side, though POSSIBLY misguided and not batting 1.000, truly considers priority numero uno taking down the greatest threat to civilization today. The other side would say they are trying to do the same thing, only the other side sees Bush as the greatest threat, not Islamofascist mass murder, hence it's most important to sack him. For all the screaming the Left does about Bush "taking his eye off the ball" and ignoring bin Laden after the invasion of Iraq, they seem to have taken their focus off of bin Laden (if they were ever focused on him in the first place) and trained it on Bush.

Another false dichotomy, plus a giant red herring. Like most simpleminded apologists for the Bush administration, Glib wants you to believe that anyone who thinks that Bush has ignored important constitutional provisions just doesn't care about fighting terrorism. Indeed, they often argue that those of us who take the constitution seriously even in a time of crisis are literally on the side of the terrorists. This is beyond absurd, it's downright idiotic.

No one - I repeat, no one - objects to using the full range of law enforcement tools, including wiretaps and surveillance, in combatting the threat we face. The only question is whether we will do so within constitutional limits and in compliance with the safeguards that the founders built into our system. This is a president who has already claimed that unilateral authority to suspend habeas corpus in individual cases without any Congressional suspension of the writ as required in the Constitution. That prompted even Justice Scalia to deliver a scathing smackdown of the administration's clear overreach of its authority.

Though I don't place him in the nut category of the above, I have to include this blogger's analysis of this decision to illustrate how even sane people who may have good reasons to oppose TSP will sell themselves out. Ed Brayton, who runs a pretty interesting site, frequently criticizes STACLU because he believes that the ACLU is a NEAR-spotless paragon of liberty and we are just a bunch of hair-on-fire loons.

I do consider you a bunch of hair on fire loons, mostly because you prove yourself to be on an almost daily basis with your hysterically overblown rhetoric. But I hardly consider the ACLU to be near spotless. I've criticized the ACLU many times on many issues, as any search of my blog will show. I just agreed with this very author only two days ago on an establishment clause case the ACLU should never have accepted in the first place. There is a long, long way between believing that the ACLU is perfect and believing that they're evil and satanic and bent on destroying the nation. And again, it is a testament to your incredibly simplistic thinking that you can only envision those two possibilities and therefore automatically lump anyone who objects to your emotion-laden screeds into the opposite category.

Reacting to the TSP ruling, he demands "legal analysis" from others who may oppose this ruling (although his "legal analysis" consists of dropping in a few normally italicized words he's picked up at Volokh), but jumps in right away (before reading the opinion) to preemptively pillory anyone (he targets STACLU) that may determine this ruling to be the work of a political hack (and as it shakes out, most agree that this is precisely the case), again, before reading the opinion himself.

Actually, I said very little before I read the opinion. I said that Judge Taylor would immediately be branded an "activist judge" by the right, regardless of whether the decision was sound or not. I was right, of course. The phrase "activist judge" is an utterly meaningless catchphrase thrown about by simpleminded twits who don't have a clue what they mean other than "a judge who disagrees with me." I said that she will immediately be branded a terrorist sympathizer, and of course she was. That had nothing at all to do with whether the ruling was good, bad or somewhere in between; the mere fact that she disagreed with them would be enough to start the insults flying. This was hardly a risky prediction; Helen Keller would have seen that coming.

After reading the opinion, realizing that this judge constructed an astoundingly agenda-heavy, sure to be recycled as Cottonelle ruling, he still coos, crows and oozes saying in effect, "so what if it IS comically deficient in legal reasoning, so what if it seems the judge would likely not be able to pick out the First and Fourth Amendments if laid sequentially before her: I love the result!" Hypocrisy at a rolling boil -- in the very post that he accuses others of judging court rulings based solely on the result, he giddily does just that EVEN after admitting how atrocious this one is. The ruling was "creative," "clever" and "fascinating" -- code for "its 'originality' would make Reinhart blush."

A complete and total distortion of what I wrote. I said it was a "fascinating" decision, and it certainly was. I said that her handling of the state secrets privilege was both "creative" and "clever", and indeed it was. I also explained why in considerable detail, all of which Glib ignores completely. But I divided the ruling up into two distinct parts - the justiciability questions (state secrets privilege and standing) and the constitutional questions. My praise was for the former, not the latter. There is nothing the least bit hypocritical about praising one portion of a ruling and panning the other, nor is there anything hypocritical about praising the result while criticizing the reasoning through which that result is reached. And the fact is, my statements were accurate. On the justiciability questions. it is an excellent ruling, well written and compelling. But that only provides the basis for the court's review, allowing the court to address the constitutional questions. And while I staunchly maintain that the NSA program is contrary to both statutory and constitutional law, Judge Taylor didn't do much of a job of providing a compelling analysis for why that is so.

That this judge could not rely on any previously accepted understanding of the law and ignored some vital questions in arriving at this scandalous decision (no Ed, the judge's "creative" conclusions do not signal "end of story") illustrates the elemental weakness of the case against the program. I agree with Ed on one thing. This is not an "activist judge." This is a political activist who happens to wear a robe to work and has a history of abusing the post she's been entrusted to dignify with professionalism and partiality to the law. On these counts, I'll rename her Anna Big Failure.

Ah, there's the immaturity we've come to expect from the STACLU crowd. Perhaps next you can come up with a new acronym for what ACLU stands for. Such arguments are so compelling. Of course, all of this is just conclusionary rhetoric. Glib does not offer a single substantive argument for why the judge's conclusion was wrong or why the program meets constitutional muster. It is merely assumed that anyone who thinks otherwise has a political agenda (of course, STACLU would never have a political bias, would they?). This is partisan rhetoric at its best, impugn the motives without a drop of substantive argument.

Then he makes this bizarre statement:

The ACLU and its allies have not been able to produce one example of someone's "rights" being violated by this, or any other surveillance program, so I agree with Ed Brayton's standing argument.

I don't know what this could possibly mean, unelss he forgot a "don't" somewhere in there. My argument on standing is that it simply should not matter whether any particular person has or hasn't been harmed by the NSA's program. The fact that it is unconstitutional is all that matters, not who has the right to take it to court. I believe Congress should be able to sue for failure to comply with binding statutory law, but the courts for some reason don't allow that. If the administration is violating the constitution, the court's job is to make it stop. That is the primary purpose of the courts, to protect the Constitution against encroachments from the other branches of government.