The Bloggerati response to Judge Taylor's ruling in the NSA Case

Guest Blogger

Laurence Tribe



[This posting was based on an e-mail addressed to Adam Liptak at the New York Times]



Dear Adam,



Good story on this morning's front page about Judge Taylor's unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program,. However, I have a reaction that may not be exactly what the "doctor" ordered -- or what you might have anticipated -- that I wanted to share with you and with some of those you quoted, as well as with a couple of other friends and that you should feel free to use as you wish.



It's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.



Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. I also would have been less ready to find standing on the part of the complainants without much more meticulous analysis than Judge Taylor undertook; I would obviously have grappled with the "special needs" exception if I had reached the Fourth Amendment claim; and I can't imagine not addressing the 2002 decision by the FSIA Court of Review. But as legal academics many of us -- and I don't exclude myself from this observation -- sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.



When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.



My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But It's those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.



Even at the level of legal analysis, it's a bit much to treat Judge Taylor as though she idiotically and gratuitously injected the Constitution into her argument when all she needed to do was rely on the FISA. Even the FISA, after all, is subject to constitutional restictions to the degree that a particular presidential maneuver that it purports to forbid is arguably immune under Article II from the particular exercise of Article I power on which the FISA prohibition rests. And although Judge Taylor's opinion doesn't do a good job of explaining just why the administration was wrong in arguing that FISA would be unconstitutional to the degree it has the effect claimed by the critics of the NSA program, it remains the case that no explanation of that conclusion would be possible without undertaking a constitutional rather than entirely statutory dissection of the relevant materials.



Moreover, it seems to me misguided to say that Judge Taylor's reliance on the chilling effects of the government's eavesdropping program represents poor legal argument simply because it isn't deeply rooted in settled precedent or entails what Jack Balkin described as a "rather innovative" line of argument. Before many of us grew accustomed to the Rehnquist Court's unfortunately dismissive reaction to "chilling effect" arguments of the sort that were routine in Justice Brennan's day and that came to seem adventuresome only in an era that could take decisions like Laird v. Tatum more or less for granted, the argument that struck Judge Taylor as compelling would have been regarded as altogether routine.



Finally, it's something of a cheap shot to chide Judge Taylor for her failure to exploit Justice Stevens' more than mild hint, in his Hamdan v. Rumsfeld opinion, that the administration's reading of the AUMF was too sweeping by a country mile. Of course Hamdan offered a major crutch that Judge Taylor failed to grab. But, by all accounts, she is no fool. My immediate assumption -- an assumption that explains why I praised her opinion and not just her result in my remarks to Charlie Savage of the Boston Globe the other day -- was that Judge Taylor was being rather clever in her seemingly deliberate and rather daring decision to reject the administration's far-fetched construction of the AUMF without relying on the Supreme Court's June 2006 pronouncement on the subject.



Although my good friend Cass Sunstein, whom I admire in more ways than I can count, seems to remain of the view that the administration's invocation of the AUMF was at least a plausible way around the prohibitive effect of the FISA prior to the rejection of that reading in Hamdan, I was among those -- including some of those whom you quote as critical of the Taylor opinion -- who had no doubt whatsoever, long before Hamdan was handed down a couple of months ago, that the administration was reading the AUMF for vastly more than it could conceivably have been worth and, in the bargain, was twisting Justice O'Connor's words and the Court's conclusions from Hamdi v. Rumsfeld in treating that earlier decision's analysis of the AUMF as support for the far-reaching use the administration sought to make of it. I took the view, in talking with the Boston Globe, that the principal effect of Judge Taylor's admittedly risky decision to go after the government's reading of the AUMF without relying on Hamdan was to make the point, none too subtly, that the administration had been not just skating on thin legal ice all along but had been skating well below the surface of the water, and that it didn't take any hint from Justice Stevens this June to establish the point.



That's a matter of more than academic interest, for it bears on the bedrock question whether the President and his advisors were merely failing to anticipate an invariably controversial recent ruling of a closely divided Supreme Court or were instead, as I believe, betraying a contemptuous disregard for law and a willingness to grasp at legal straws in order to mask a naked assertion of boundless power.