Round-Up
Judge Posner had this editorial in yesterday’s Wall Street Journal arguing for more flexibility in the way the judiciary handles terror cases, writing that “we are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court.” Marty Lederman reacts to that editorial here at the Georgetown Faculty Law Blog.
At the Volokh Conspiracy, Orin Kerr has a post here asking what the Sixth Circuit will do about Judge Taylor’s decision, with a follow-up post here.
Orin Kerr and Marty Lederman also have comments on yesterday’s decision by the DC Circuit in Muprhy v. IRS regarding the unconstitutionality of a tax “on compensation for a non-physical work-related injury not related to wages or earnings.” Kerr, in a post here, suspects the Supreme Court will eventually take up this case, and Lederman (here) is suprised that the decision doesn’t mention Article 1, Section 9 of the Constitution.
Finally, the Washington Post carries a piece on the implications of yesterday’s action by Justice Thomas letting stand a ruling which will force Echostar to cut off programming to several hundred thousand customers. For more on this, see Lyle’s posts here and here.
Posner’s remarks are not so different from those he expressed on C-SPAN 2-3 months ago (I cannot now find this on C-SPAN). What I found so frightening about Posner’s approach was that he said his first step was to see if a questioned act were something that a security officer might reasonably want to do and then to see how it might be justified. Apparently he has now found the Constitution to be an unacceptable limitation. In the face of his expressed course of reasoning from the outcome to the opinion, the Constitution be damned, instead of reasoning from the Constitution to the opinion, why is it not necessary that Posner be impeached?
Comment by r.friedman — August 23, 2006 @ 1:24 pm
In addition to the Posner article, I thought the following piece that was printed in the National Review had the best analysis regarding the opinion to date. I’m not sure if this blog as linked to it yet, but the article follows:
National Review Online
August 18, 2006, 3:47 a.m.
Amateur Hour?
A judge’s first-year failing-grade opinion.
By Bryan Cunningham
The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.
We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.
Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.
Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.
Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception” to FISA’s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.
More worrisome still are the judge’s breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an “F.” Here’s one of several examples: The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is “reasonable.” Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a “domestic” program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs, such as protecting us from attack, against other constitutional interests.
Lest there be any doubt as to whether Keith supported Judge Taylor’s view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”
While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”
Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge’s missive.
Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion.
Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’
Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.
Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention:
—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context (seizure of U.S. steel mills in the face of a union strike);
—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or
—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.
Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.
Trivial Pursuit. Perhaps most disturbing about the judge’s opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal “Schoolhouse Rock” episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP “regulates.” FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.
Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge’s oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.
Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.
Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2” British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.
As Judge Taylor’s new favorite justice, Robert Jackson himself, warned, the courts should not “convert the constitutional Bill of Rights into a suicide pact.” I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor’s giant step in that direction to stand.
— Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.
Comment by JPS3L — August 23, 2006 @ 2:01 pm
Professor Friedman:
I am writing to respond to your last sentence that “[i]n the face of his expressed course of reasoning from the outcome to the opinion, the Constitution be damned, instead of reasoning from the Constitution to the opinion, why is it not necessary that Posner be impeached?”
I believe the beginning point is Judge Posner’s cryptic comment to the effect that a bare majority in Hamdan rejected the argument that “our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs.” This can be read as an ultra-conservative and radical judge’s open hostility towards so-called activist (read:liberal) Justices for putting the rights of criminals and terrorists above those of law-abiding Americans who want to be protected by their government. On the other hand, given that the only provision he cites in his article is the Fourth Amendment, and that the NSA case involved constitutional claims arising primarily under the Fourth Amendment, I believe he is referring to that provision and its jurisprudence. If so, then his article makes much more sense.
I respectfully must disagree with your assertion that Judge Posner’s solution follows a “course of reasoning from the outcome to the opinion, the Constitution be damned, instead of reasoning from the Constitution to the opinion.” Rather, if I am correct about Judge Posner’s article, then he is suggesting a reassessment of our Fourth Amendment jurisprudence in the national security context — an argument that indeed flows naturally from a “living Constitution” textualist approach.
Indeed, Judge Posner never disagrees with the result or reasoning in Hamdan, although his tone admittedly suggests that he may be omitting his opinion sheerly out of obedience to the Code of Judicial Conduct. Rather, his article suggests that our legal system has not participated in the War on Terror in the most effective way that they can. First, he points out that the military commissions in dispute in Hamdan were never put into practice. Second, he observes the advisory-opinion difficulties that would be encountered, should pending legislation require the FISC to issue an opinion as to whether the NSA wiretapping program is legal. In sum, Judge Posner argues that “now, in the wake of Hamdan and the Detroit case, we learn that we do not have a coherent judicial dimension to our efforts to combat terrorism.”
Turning (at last!) to your argument, I must conclude that Judge Posner had in mind “[t]he dilemma of defeating terrorism while respecting essential civil liberties” — a problem that he suggests is not resolved particularly effectively by criminal prosecutions and search warrants. I agree with him on that point. It is safe to say that jails and lethal injections do not deter those who would strap bombs to themselves so that they may kill a few of their enemies. Terrorists are defeated when their organizations are infiltrated and their operations defused by timely intelligence. But for those of us in the judiciary who want to help fight terrorism, what should we do?
Judge Posner indicates a critical role for courts to play in the War on Terror. Courts must protect “essential civil liberties” while allowing intelligence and military agencies the flexibility needed to perform their jobs. The obligations and needs of the legal community and the military/intelligence community are in equipoise, and both must solve their very difficult tasks if we are to prevail in this new Age of Terror.
As I understand his argument, Judge Posner simply has suggested a reassessment of what is “reasonable” under the Fourth Amendment in the contemporary national security context. He aims his frustration at the fact that the “revered 18th-century Constitution as interpreted by the Supreme Court” has hindered our efforts in the War on Terror — but I see this as a narrow critique of certain elements of our pre-9/11 jurisprudence, not a wholesale rejection of the Constitution. The most extreme version of his argument is the one you pose: a court must examine a given act for its subjective reasonableness (that is, whether the officer “might reasonably want to do it”) and then permit it if such an act can be justified. I acknowledge that a judge fixated on a particular result can twist the reasonableness inquiry into whatever shape he or she desires. But, that is the nature of the Fourth Amendment — and not so long ago, the reasonableness inquiry gave rise to greatly expanded individaul rights. While I may disagree with one or another judge’s analysis of a Fourth Amendment national security issue, I think the balancing pragmatism suggested by Judge Posner hardly deserves a call for his impeachment.
As an aside, I must tell you that I am a great fan of your scholarship (your opinions on Judge Posner notwithstanding). I would be very appreciative to hear your response.
Best regards,
primary_source
Comment by primary_source — August 23, 2006 @ 5:26 pm
Primary –
Thanks for your kind words. I am not a professor or a lawyer, I just play one on the Internet.
It does appear that Posner has honed his arguments from those he presented on television. Perhaps his book, devoted solely to security issues, gives an even better view. And I suppose you are right, it could be interpreted as the application of a subjective reasonableness test (which leads Posner to question, why should it be the subjective interpretation of federal judges that counts).
I have never liked the uses to which the phrase from Katz that “the Fourth Amendment protects people not places” has been put. This has led to a jurisprudence of standing to challenge an unlawful search, of subjective v. objective expectations of privacy, and of expectations of privacy that society is willing to treat as legitimate. All of these have allowed police intrusions into clearly private areas. I prefer to read it as “the Fourth Amendment protects people not only places”; the Fourth Amendment protects “persons, houses, papers, and effects.” But in the heat sensor case, the Court considered it simply a plus factor that the invasion was of a house.
There was a time a few years ago when the Chief Justice of the Israeli Supreme Court was being feted around Washington as an example of how the rule of law could be maintained in the midst of a war against terror. In fact, it was a jurisprudence of caving in to the security establishment and defining as civil rights whatever was left, which permits indefinite detention without trial, waterboarding and stress positions. Let us hope that our 18th century constitution protects us against that fate.
Comment by r.friedman — August 24, 2006 @ 8:54 am
Friedman quoting Bryan Cunningham:
Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’
Ummm, the In re: Sealed Case [2002] decision’s language was also dicta.
Cheers,
Comment by Arne — August 25, 2006 @ 2:22 pm