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Posner in The New Republic:
Over at The New Republic, Richard Posner has a piece on the NSA surveillance program that includes this provocative paragaph:
Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation's defense, and its impingements on civil liberties are slight. That would not prove the program's legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry. We would search harder for grounds to affirm its legality, and, if our search were to fail, at least we would know how to change the law--or how to change the program to make it comply with the law--without destroying its effectiveness. Similarly, if the program's contribution to national security were negligible--as we learn, also from the Times, that some FBI personnel are indiscreetly whispering--and it is undermining our civil liberties, this would push the legal analysis in the opposite direction.
  I find this paragraph rather peculiar. It seems to me that several different questions might be asked about the legality of the NSA surveillance program. First, there is a descriptive question: Is the program consistent or inconsistent with existing law? Second, there is a predictive question: How would the Supreme Court likely rule if presented with this question? Third, there is a normative judicial question: How should a judge rule on the legality of the NSA program if it came before him? Fourth, there is a normative policy question: Is the program effective enough that the law should allow it?

  Posner, being a pragmatist appellate judge, is naturally interested in the third and fourth questions. Indeed, his argument is that the answer to the fourth question should inform the answer to the third question. But I think Posner is wrong to dismiss the importance of the first two questions, and especially the first one. A lot of people are interested in knowing whether the Bush Administration bent the rules to allow this program, and if so, how much. Some will condemn any rule-bending as lawless rule-breaking, while others will applaud it as appropriate aggressiveness needed to wage the GWOT effectively. But in both cases, assessing the legality of the NSA program as a "Platonic abstraction" serves an important political function: It gives people information about whether any rule-bending occurred, which individual citizens can use as they wish to inform their view of the program as a whole. It's not the only question, of course, and it may not be of particular interest to a federal appellate judge. But I do think it's an important question.
frankcross (mail):
It is an important question and for reasons entirely consistent with Posner's pragmatic approach. If this violates the law, that is an important bit of information about the actions of this Presidency or Presidents generally. If this law is broken, surely we need be concerned about other laws. Posner puts the cart before the horse when he suggests the issue is how to modify the law -- a question of little meaning if the law is not followed. Conversely, if the action is legal, that is also relevant information about the role of the various branches.
1.30.2006 6:47pm
alkali (mail) (www):
Posner's claim is peculiar in the further sense that the thing he wants us most to discuss -- the practical utility of what the NSA is doing -- is "off limits" from debate. Unless something very unusual happens, we will not know anytime soon what benefits or what harms are associated with this NSA effort; everything is classified and will remain so. Accordingly, Posner provides us with very little to discuss, other than perhaps our entirely subjective opinions of whether to credit White House statements about the nature of the program.
1.30.2006 6:50pm
MikeC&F (mail):
It's well known that Judge Posner strongly believes that a judge or lawyer should a) reach a conclusion and then b) justify that conclusion. So this most-recent article is yet another application of his jurisprudential principle. Why is it again that people care what Posner thinks? There are lots of smart people, and lots of people smarter than Posner. What makes his form of reasoning (reason from the conclusion to the premises) so special?
1.30.2006 6:55pm
Kovarsky (mail):
I suspect maybe I'm not understanding something about Posner's argument, but it seems to me that he's addressing this argument to this program as though it were enacted by congress.

it sure makes perfect sense to me that "platonic abstraction" would be an awfully silly way to balance the variety of fourth amendment and national security interests in play.

it makes considerably less sense to me why the underlying efficacy of the prgram should influence the institutional question about what branch should be the one passing it. to apply posner's point to the institutional question rather than the substantive one, you would have to buy that you can't say that this is congress's area of expertise without first knowing how good the program is. those two ideas seem to be disconnected to me.

i'm posing an honest question, and i'd love to hear why either (1) i misunderstand posner or (2) why i'm not misunderstanding posner, and the efficacy of the program does matter to the institutional question.
1.30.2006 6:57pm
Just an Observer:
I am very pleased that neither new justice on the Supreme Court follows Posner's results-oriented approach to jurisprudence. The man really should run for the Senate.

The legislative domain is the right place to answer the fourth question posed by Prof. Kerr.

For guidance on the first three questions, one could hardly find a better starting point than a close reading of the record in Samuel Alito's confirmation hearings, followed by study of the cases discussed there -- principally Youngstown and Hamdi. Alito outlined a bottom-up analytical approach to the NSA matter that made eminent sense.
1.30.2006 7:24pm
Christopher M. (mail):
First, there is a descriptive question: Is the program consistent or inconsistent with existing law? ... Third, there is a normative judicial question: How should a judge rule on the legality of the NSA program if it came before him?

Is there some jurisprudential theory on which these two questions could have different answers? Formalists and originalists of various stripes give priority to the question of meaning, and say that judges should rule accordingly. Pragmatists like Posner give priority to the question of what the ruling should be, and say the law's meaning should be defined accordingly. But I can't think of anyone who says that judges should sometimes rule contrary to the law.
1.30.2006 7:27pm
Bryan DB:
Mr. Kerr,
This isn't all that peculiar. Having read a number of things Posner has written on this topic, it's clear that he's not just being a pragmatic appellate judge. This is just another example, with many others showing up in 7th Circuit cases, that economics comes before all else for Judge Posner. In his view, the Constitution is just a set of writings that are to be balanced against the efficient result in each case.
1.30.2006 7:29pm
steveh2 (mail):
I hope that if I ever have to commit a federal crime, I can do it in the Seventh Circuit, where Judge Posner will be more concerned about whether my actions were a "good idea" than whether my actions were a "felony."
1.30.2006 7:34pm
Christopher M. (mail):
I suppose doctrines of judicial deference provide one answer to my question above, at least when they aren't conceptualized as delegation doctrines. (That is, if judges must defer to the legal opinions of other branches, then one could believe that the law means X but that judges should hold that it means Y in deference to other branches.)
1.30.2006 7:35pm
A.S.:
Speaking of that first question, did Orin ever get around to telling us what he thought of the DOJ's White Paper? I thought he promised us an analysis. Or did I miss it?

(Yes, I'm perfectly happy demanding more free candy!)
1.30.2006 7:37pm
John (mail):
Let me say as some one who has practiced on the other side of the bench for 25 years before my retirement that Posner's description of the judicial process fits about 99% of all judges and opinion-writing. Judges, like people, reach their conclusions first and then rationalize why they are right. Fortunately, or unfortunately, the law is usually too fuzzy to prevent this. Hell, even when it isn't particularly fuzzy judges do this (Brown v. Board, Roe v. Wade, etc.).

In the case of FISA, for example, what exactly does "target" mean when one violates the law by "targeting" a "U.S. person" in certain circumstances? I don't know, and I haven't researched whatever cases may have spoken on the subject, but I assure you that some judge some time will have to decide whether targeting a cell phone of unknown location is "targeting a U.S. person" when, unknown to the targeter, the phone is being used by a U.S. person. Well, maybe I'm speaking too soon here, and that already is decided. I am sure there is something else fuzzy to be interpreted as well. And Posner is right that whoever judges this will approach it--whether he admits it or not--in just the way Posner says. Remember the "Brandeis Brief" we learned about in law school? There was a reason it worked.

Finally, I do not discount the "Platonic" discussions that go on--they are helpful and possibly influential. But it is naive to think that they have a lot to do with how decisions get made. They have something to do with it. But not a lot.
1.30.2006 7:41pm
A.S.:
But I think Posner is wrong to dismiss the importance of the first two questions, and especially the first one.

Is he "dismiss[ing]" the importance of the first two questions? Or just weighing them against the possibility of catching terrorists who might otherwise fly a jetliner into his office. I think the latter. And he's right.
1.30.2006 7:47pm
Bruce Wilder (www):
"a descriptive question: Is the program consistent or inconsistent with existing law?"

What do we ask of existing law? When lawful authority is legally granted, what is necessarily in the written law? What level of specificity? Do definitions and concepts have to exist in the written law, and where in the written law do they have to exist? In legislation? In judicial decisions and opinions? In the regulations promulgated by executive departments and independent regulatory agencies? These are the kinds of questions that confront the Platonic explorer of the legal cave.

The controversy is entirely over whether the President is authorized by the Constitution or by a very broad authority to use force from Congress to authorize all manner of conduct, from torture to surveillance. (And, no, we cannot ignore torture, because the expansive claims of Presidential authority to ignore treaties and laws relating to detention and torture hang over the surveillance controversy.) There is little political controversy over whether the government should be seeking to monitor known terrorist communications. A naive view of politics would lead one to call in the Platonists.

Posner's view, though, is eminently practical, politically, because it serves as a means to ignore the Platonic questions of the reach of Presidential authority. Attach issues of political substance to the President's authority, and you run the risk of either fatally disabling the Office of President, or raising it to the level of Caesarian Dictator. Far better to focus on the non-controversial, and move directly to crafting appropriate legislation or judicial interpretation. Take it entirely out of the realm of Executive Orders as quickly as possible, without ever trying to address whether it should have been there to begin with.
1.30.2006 7:49pm
A.S.:
One last comment. Is Posner really being that unusual?

Who among us doubts that the same type of analysis went into Brown v Board, for example? Surely the Justices' conviction that striking down segregation had "great merit" "shape[d] and hone[d] the legal inquiry" in that case too. And it turned out that the case was a pretty crappy job of legal reasoning. Who cares? It was of profound importance for the nation, and the Justices acted accordingly.

All Posner is saying is that, if judges believed the NSA program was similarly important to the country, they might act in the same way. Big deal.
1.30.2006 7:55pm
Brian M:
I can't issue a reaching comment on what Posner means or does not mean in the context of a judicial theory, but perhaps what he says is correct in at least one regard. The president has been granted wide authority by Congress in the authorization of use of millitary force, and constitutionally the executive has the affirmative obligation to defend the citizens of the United States. If the program really were vital to that defense, it's more likely that the court would rule it constitutional. If the program is not vital to defense, that seems a much less likely outcome absent other law authorizing the surveillance.
1.30.2006 7:59pm
Just an Observer:
A.S.:All Posner is saying is that, if judges believed the NSA program was similarly important to the country, they might act in the same way. Big deal.

On the other hand, if the President's nominees to the court really will not, in his words, "legislate from the bench" -- and I think Roberts and Alito will not -- the big-deal joke will be on Bush. If the court ever does get this matter, the President's two nominees are likely to join majorities that reject his case decisively.
1.30.2006 8:08pm
Antares79:
I think Posner can fairly reach the pragmatic conclusion that he does here. The NSA wiretapping issue necessarily implicates areas of unsettled law, which have no "Platonic" bright line answer. What powers are inherant to the Executive and what additional powers the (appropriately onomatopoeic) AUMF or FISA confers or denies are not spelled out, at least regarding the NSA program, in any precedent or legal document. The decision necessarily depends on the judicial philosophy of the decision-maker (whether it be textualism, traditionalism, originalism, or any other -ism).

Posner, being Posner, uses a law-and-economics approach, and I think that's fair in the absence of other guiding principals. This is not to say that Posner hasn't innapropriately used this approach in cases (e.g. Criminal Cases) where binding authority commands otherwise, but I don't think that's the case here.

Professor Kerr would have Posner instead rely on how SCOTUS would rule on the issue instead of applying his pragmaticism, but we rarely ask appellate judges to do this in similarly unsettled areas of law. In asking how the Supreme Court would potentially rule in this case, and any other case without precedent or a logical "Platonic" conclusion, requires the questionee to apply the jurisprudential philosophy of the majority of justices. While lower judges can and should apply precedent and "Platonic" logic, rarely do we require them to adopt (or even consider) alternate interpretive philosophies, to the degree that these philosophies are not embodied in precedent. Must Posner abandon his pet Pragmaticism except where the Supreme Court has specifically endorsed it?
1.30.2006 8:08pm
A.S.:
JaO: do you think Brown v. Board was "legislating from the bench"?
1.30.2006 8:25pm
Pendulum (mail):
Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake.

If I'm reading this correctly, this is an absolutely shocking statement. Suppose a Federal Judge considers the drug war to be a detrimental social policy, with tremendously high costs to civil liberties. Is he then justified in applying an extremely high level of scrutiny, and "searching harder for grounds" to invalidate the law (as opposed to "searching harder for grounds" to uphold a law crucial to the GWOT)?

Is this anything more than a fancy way of saying "We'll search extra hard to find grounds to uphold our policy preferences"? Or, "We'll try really hard to come up with some plausible BS, if we deem the stakes to be large"?
1.30.2006 8:42pm
Just an Observer:
A.S.,

I wouldn't call it that. I would prefer John Roberts' description of Brown as an example of "modest" jurisprudence.

But back to the point here, I do think the results-oriented methodology Posner advocates for the NSA controversy could be called "legislating from the bench."
It certainly is not the methodology Alito outlined at his hearing.
1.30.2006 8:43pm
David Sucher (mail) (www):
Perhaps I am misreading what Posner is saying (and what others seem to accept with sophisticated nonchalance) but I find it remarkable that anyone -- especially any conservatives -- should be so blithely accepting of activist results-oriented {"We'll recognize the law when we see it.") judging.
1.30.2006 8:48pm
David Sucher (mail) (www):
Perhaps I am misreading what Posner is saying (and what others seem to accept with sophisticated nonchalance) but I find it remarkable that anyone -- especially any conservatives -- should be so blithely accepting of activist results-oriented {"We'll recognize the law when we see it.") judging.
1.30.2006 8:48pm
Dave Hardy (mail) (www):
Let me say as some one who has practiced on the other side of the bench for 25 years before my retirement that Posner's description of the judicial process fits about 99% of all judges and opinion-writing.

With 30 yrs in the trenches -- Amen!

I have exceptional respect for the judges I have known who reached legal conclusions contrary to the result they desired in fact. It's not hard to hold 2-3 people in exceptional respect (and that's counting trial court judges). Other than that handful, "it sounds like a good idea to me" = "it is in conformance with the law and the constitution."
1.30.2006 9:01pm
Wonderland (mail):
What strikes me about the article is that Posner is making a normative argument based upon the utility of a surveillance program about which he knows virtually nothing. Posner's argument only makes sense if you believe every word about how great this program is and how tailored its use is.

But, in my view, the very essence of this controversy is about whether the Constitution (or laws passed pursuant to that Constitution for the purpose of protecting rights in that Constitution) countenance unilateral Executive power to engage in such surveillance when, in part at least, American citizens in the US are targeted. While Posner's arguments depend upon whether the Administration is telling the whole truth, I was under the impression that the Consitution (and FISA) protect us from having to divine whether the Executive is being truthful -- by placing a federal judge between an aggressive Executive and a wiretap that would (absent that judge's permission) otherwise violate my Fourth Amendment rights.

Anyway, it just seems to me that Posner has missed the crux of issue: it's not about whether the surveillance is useful -- even necessary -- it's whether we're going to allow the President the unilateral authority to authorize it and then oversee it.
1.30.2006 9:12pm
Anderson (mail) (www):
What an insipid intellect Posner displays.

Question: pragmatically, what results can we expect from allowing the President to ignore the law whenever he can expect good results from doing so?

(Cf. Orwell, "Politics &the English Language," on breaking eggs ----> omelet.)
1.30.2006 9:17pm
A.S.:
But back to the point here, I do think the results-oriented methodology Posner advocates for the NSA controversy could be called "legislating from the bench."


Except that it is clear that Posner is NOT advocating "results-oriented methodology". He is advocating PRAGMATIC jurisprudence... of exactly the kind we've had from Justice O'Connor for the last X years. Gigantic difference.
1.30.2006 9:18pm
magoo (mail):
In Posner's world, "no man is above the law" becomes "every man is above the law." The trouble with pragmatism is it doesn't work.
1.30.2006 9:32pm
TP:
Where in the Constitution does it allow the Legislative Branch to give the Executive Branch any authority to declare war, or use the military as it sees fit? Or for that matter, doing whatever it sees fit to "protect" the people from terrorists? The Legislative Branch cannot delegate its power as that would defeat the whole concept of "separation of powers" that was the intent of having three separate branches in the first place. If we allow this, we just may as well call the President a dictator right now!
1.30.2006 9:34pm
Just an Observer:
A.S.:He is advocating PRAGMATIC jurisprudence... of exactly the kind we've had from Justice O'Connor for the last X years.

So, you think O'Connor would rule for the prez on his assertion of exclusive executive war powers?

I would remind you that it was O'Connor's plurality opinion in Hamdi that emphatically rejected the administration's claim to such power, and delivered a stern lecture to that effect.

In fact, the only vote Bush got on that point was Thomas (the famous pragmatist - not).
1.30.2006 9:35pm
A.S.:
So, you think O'Connor would rule for the prez on his assertion of exclusive executive war powers?

I firmly believe that O'Connor would avoid reaching a decision on the merits of that question at all costs.
1.30.2006 9:38pm
Kieran (mail) (www):
"The trouble with pragmatism is it doesn't work."

To properly quote Sidney Morgenbesser, the problem with pragmatism is that it's a fine in theory but doesn't work in practice.
1.30.2006 9:38pm
breen (mail):
Opening up the discussion a bit, what's going on in this passage:

If the NSA just wants to listen to his calls to others abroad, fisa doesn't require a warrant. But it does if either (a) one party to the call is in the United States and the interception takes place here or (b) the party on the U.S. side of the conversation is a "U.S person"--primarily either a citizen or a permanent resident. If both parties are in the United States, no warrant can be issued; interception is prohibited. The problem with fisa is that, in order to get a warrant, the government must have grounds to believe the "U.S. person" it wishes to monitor is a foreign spy or a terrorist. Even if a person is here on a student or tourist visa, or on no visa, the government can't get a warrant to find out whether he is a terrorist; it must already have a reason to believe he is one.

First, he provides a definition of "U.S. person" only to junk it several sentences later. Which is it? Is a "U.S. person" primarily a citizen/permanent resident or can they be students, tourists, or out of status? Further, does anyone believe that communication with suspected or known terrorists abroad wouldn't prima facie give reasonable suspicion for a warrant? He seems to be saying that even if I were talking with OBL, the FISA court wouldn't grant a warrant to listen to my conversations unless they had better dirt on my weekend activities. Am I missing something here?
1.30.2006 9:50pm
Just an Observer:
A.S.,

You are talking about O'Connor as minimalist, not pragmatist. That is one of the things that made her opinion in Hamdi remarkable. In that case, on the constitutional separation-of-powers issue, she and the other three justices at the center of the courtdid decide against Bush, and opined more broadly than the case required.

On the other issue in Hamdi, which was the specific question of whether Hamdi could be held as an enemy comabatant, what distinguished O'Connor's opinion (joined by Rehnquist, Kennedy and Breyer) was its minimalism. It narrowly interpreted the AUMF to authorize that detention, avoiding the broader constitutional claim, but strictly limited the ruling to the factual context of a foreign battlefield. Which is why the administration is afraid to have the court rule on Padilla.

That AUMF interpretation, based on a doctrine of "incident to the use of force," was grounded strictly on several points of law and precedence, not "pragmatic" claims about how the detention program was working.
1.30.2006 10:01pm
elisabeth:
I think that Posner is being dishonest. As mentioned, Posner's "issue" - the efficacy of the wiretapping - is virtually off the table. A real pragmatic view would consider the policy implications of a positive or negative ruling on the president's power. In the specific case of NSA wiretapping, the outcome seemingly won't have much of an effect (unless the administration is doing something really bad), since the secret FISA courts have shown to be rubber stamp courts. But the ruling could have a great impact on the President's approach towards the USA PATRIOT Act and the general rights of his citizens in the face of the interminable GWOT.
By the way, Posner is debating this issue tomorrow against Geoff Stone at the University of Chicago. Even if Posner refuses to address the real issue, a Legal Affairs debate redux would still be extremely entertaining.
1.30.2006 10:07pm
Fishbane (mail):
Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake.

If I'm reading this correctly, this is an absolutely shocking statement. Suppose a Federal Judge considers the drug war to be a detrimental social policy, with tremendously high costs to civil liberties. Is he then justified in applying an extremely high level of scrutiny, and "searching harder for grounds" to invalidate the law (as opposed to "searching harder for grounds" to uphold a law crucial to the GWOT)?


Exactly my thought upon reading that. I'm personally surprised that Posner phrased that so loosely - I suspect that "[...] a flexible tool of social policy [....]" will be quoted, in many contexts, for a long time to come.
1.30.2006 10:09pm
Scott Scheule (mail) (www):
But in both cases, assessing the legality of the NSA program as a "Platonic abstraction" serves an important political function: It gives people information about whether any rule-bending occurred, which individual citizens can use as they wish to inform their view of the program as a whole. It's not the only question, of course, and it may not be of particular interest to a federal appellate judge. But I do think it's an important question.

There's a favorite quote of mine from Futurama that comes to mind.

RICHARD NIXON: Computers may be twice as fast as they were in 1973, but your average voter is still as drunk and stupid as ever. The only thing that's changed is me. I've become bitter and, lets face it, crazy over the years, and once I'm swept into office I'll sell our children's organs to zoos for meat, and I'll break into people's houses at night and wreck up the place! Mwahahahahahaha!!

Professor Posner is, I believe, of the opinion that voters are rationally ignorant about politics. I think he's right; within that paradigm, it's somewhat easier to be sympathetic to his technocratic views (and perhaps, as well, his antipathy towards legislature-created law).
1.30.2006 10:39pm
Medis:
Posner has an odd habit of assuming away some of the most important issues in this sort of debate.
1.30.2006 11:20pm
Anonymous Liberal (mail) (www):
To second what Wonderland said, the truly ironic thing about Posner's article is that he attempts to apply his pragmatic/policy-based approach to a program which he knows absolutely nothing about! He's making policy assessments in a vacuum. Talk about platonic abstractions. If there's ever an area where we need to rely on the law itself, this is it. The law and the constitution are a matter of public record. The intricacies of the spy program are not.
1.30.2006 11:38pm
Mitchell Freedman (mail) (www):
Orin,

It's not complicated. Richard Posner has no "integrity" in the sense Ronald Dworkin uses the term. Remember Posner's inability in Slate.com to defend Bush v. Gore other than with the talking points that came from Karl Rove's office? Dershowitz cleaned the floor with him to the point where pro-Republican commenters were disappointed, if not alarmed.

For Posner, like William O. Douglas, it's the politics that count. This latest writing of his is merely the latest "Exhibit A".
1.30.2006 11:57pm
Kovarsky (mail):
Forget whether or not pragmatism is correct or not, is anybody else just floored that many conservatives adopt this as a rationale for the NSA program on the eve of confirming a beloved "strict constructionist."

Twilight Zone.
1.31.2006 3:35am
Shahid Alam (mail):
I'm just curious, Professor Kerr: What is the point of your posting? Only that you regard whether the surveillance is consistent with existing law to be the most important question? As you noted in your own analysis, there is a controversy as a matter of law on this point.

While you seemed to conclude on balance that the surveillance was probably illegal with respect to FISA, I seem to recall you used the term probably and not clearly. Perhaps since then, this controversy has further resolved in your mind. But since your analysis seems to assume that FISA would be controlling in this case, which the administration doesn't argue, and given that intelligence gathering has always been considered part and parcel of warmaking, a fact you largely disregard in your analysis, I'm not sure the controversy can be easily dismissed or that the courts are as likely to do so as some. I hope you will follow up if I misrepresented your perspective on this in any way.

Given that the controversy does exist, and given that Posner is looking at the controversy not so much as a justiciable matter but as a matter of policy, I'm not really sure what you were expecting of him. Sure, your questions are important. But you seem to suggest the questions he asks are not. And further, you seem to suggest that in an unsettled area of law, with competing legal principles and compelling interests, the questions you ask can even be authoritatively answered without recourse to the policy-related questions and balancing tests he discusses. This seems a little odd.
1.31.2006 5:46am
Public_Defender:
In the real world of lawyering, there are two ways to win cases:

1) Convince the judge to want to rule for you and demonstrate that there are no obstacles preventing such a ruling.

2) Convince a judge that he or she has no choice but to rule for you.

As a criminal defense lawyer, I spend most of my time in Category 2 ("Judge, you have no choice but to release this convicted child molester without supervision.") But the occasional Category 1 case is fun because I get to pound the table a bit.

One of the biggest mistakes lawyers make is thinking they are in Category 1 when they really are in Category 2. To be effective, lawyers must understand which category they're case is in.

When I have a strong technical argument to keep a recidivist child molester out of prison (no question of guilt), the prosecutor has a Category 1 case and I have a Category 2 case, and we both have to adjust accordingly. The prosecutor's job is to find a plausible fig leaf that a judge can use to allow my client to be sent to prison. My job is to calmly show that the judge has no choice. (I won that argument, by the way, but the ex-prosecutor judge made it clear that he was very unhappy about having to rule for my client. )
1.31.2006 5:59am
davod (mail):
I cannot get over how so many of you automatically believe the President is a lier who is abusing his powers by defying Congress. And just above we have Scott quoting Nixon? from Futurama? I do not now what Futurama is but, while I cannot be sure, I would suggest that Nixon never actually said what was quoted.

So here is the nub of it.

a. If something, anything, is not approved by Congress then the President must be in the wrong (I can just imagine the next bill that comes out with instructions for exactly how to enact the law.) No separation of powers. The Congress is the power (The Congress is not the only elected branch of Government, The President and Vice-President are elected by the people.)

b. No separation of Powers except when the Supreme Court sides with the Congress, or with your social policy of the day that cannot be reached through Congressional action. (No Stare Decisis unless it suits your views.)

d. If we do nont know about it then it must be illegal.

C. Quoting fiction is legitimate way to portray the views of real people (Even in the case of Nixon, who surely must have said something in the real life record which would have supported the argument. But then again, maybe not.)

A wonderful debate but I wouldn't want to bet my life on the everyone needs to know everything society. Just think of getting up in the morning and, after mandatory excercises, attending the mandatory morning lecture on how the trash man should empty the trash. Oh! I forgot. There are already countries where they do or have done that.
1.31.2006 6:04am
Pendulum (mail):
Let me ask again: Under the Posner Theory, is there anything stopping me, Federal Judge Pendulum, from deeming the drug war to be "a program without merit" and "searching harder to justify striking down" drug war legislation piece by piece?
1.31.2006 6:22am
Public_Defender:
Let me ask again: Under the Posner Theory, is there anything stopping me, Federal Judge Pendulum, from deeming the drug war to be "a program without merit" and "searching harder to justify striking down" drug war legislation piece by piece?
No, but maybe not in the way you meant.

Federal judges have been looking for ways to get around mandatory minimum sentences that hammer low-level people and give great deals to the higher ups who have information to trade.

Most search and seizure cases come down to some sort of "reasonableness" determination, and the competing values inform that decision. Many judges would find the same search more reasonable if it turned up a truckload of cocaine than if it turned up a little marijuana residue.

"Pragmatic judging" is probably good for the system as long as it is confined to close cases.
1.31.2006 7:42am
Medis:
davod,

This is just an aside, but many of us are actually assuming that the Administration is telling the truth when it says that it was conducting electronic surveillance within the meaning of FISA without following FISA procedures. The subsequent conclusion that doing so is illegal follows from an analysis of the relevant laws.

So, I'm not sure it is true that anyone is assuming that the President is a "liar". Rather, I think many people are concluding that the President is simply wrong about what the law requires.
1.31.2006 8:16am
breen (mail):

And just above we have Scott quoting Nixon? from Futurama? I do not now what Futurama is but, while I cannot be sure, I would suggest that Nixon never actually said what was quoted.

Greatest post ever.
1.31.2006 8:22am
Scott Scheule (mail) (www):

And just above we have Scott quoting Nixon? from Futurama? I do not now what Futurama is but, while I cannot be sure, I would suggest that Nixon never actually said what was quoted.


I take great offense at having my sources drawn into question.
1.31.2006 8:56am
Freder Frederson (mail):
Considering Posner's view of jurisprudence (and his legion of 2L devotees who just worship him) I would think all he would care about is the economic benefit of the program. In his world, it should be a simple process of adding up the X billion of dollars spent on the program, subtract the Y dollars saved by the terrorist plots foiled (including the future value--both positive and negative--of lives lost). If X - Y >= 0 then the program is legal, moral and constitutional. If not, then it is not.

I think that if Posner were asked to decide if methods of execution were cruel and unusual punishment, the cost of the electricity to run the electric chair and the cost of the chemicals for lethal injection would enter into his decision.
1.31.2006 9:01am
Scott Scheule (mail) (www):
I think that a rather gross strawman of Posner's views.
1.31.2006 10:00am
Anderson (mail) (www):
In fairness, Posner is not really even that much of a pragmatist, as many pragmatist philosophers will be happy to tell you.
1.31.2006 10:19am
Wit H. Held (mail):
I think Orin's disagreement with Posner simply shows the difference between someone in the academy and someone who actually has to deal with real-world applications and consequences of the law.
1.31.2006 10:57am
srg (mail):
Harvard Law School Professor Philip[ B. Heymann and Posner are debating the article at:

http://www.tnr.com/doc.mhtml?i=w060130&s=heymannposner013106
1.31.2006 11:25am
Public_Defender:
Thanks for the link. One of Posner's comments mirrors my point made at 5:59am above. Posner writes:
The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.
I wrote:
In the real world of lawyering, there are two ways to win cases:

1) Convince the judge to want to rule for you and demonstrate that there are no obstacles preventing such a ruling.

2) Convince a judge that he or she has no choice but to rule for you.
"My" idea is hardly novel. I'm pretty sure I learned it in law school or at some CLE. But it's one of the most useful practice tools I've picked up.
1.31.2006 11:36am
Medis:
This is a somewhat abstract point, but let's suppose that descriptively, it is true that most judges, most of the time, end up acting in practice as Posner describes. I still wonder if something would be lost if judges actually consciously adopted such an approach. In other words, it may already be the case that judges are more results-oriented in practice than they are in theory. So if the theory itself becomes more results-oriented, where will judges end up in practice?
1.31.2006 11:55am
Neal Lang (mail):
Forget whether or not pragmatism is correct or not, is anybody else just floored that many conservatives adopt this as a rationale for the NSA program on the eve of confirming a beloved "strict constructionist."

Twilight Zone.

A better question might be: Had prior Supremes followed the "strict constructionist" idea, vis-a-vis the Constitution, would "electronic surveillance" of telecommunications even require a "probable cause warrant" under the 4th Amendment?
1.31.2006 12:04pm
byomtov (mail):
For all his talk of pragmatism, Posner urges the following:

Permit surveillance intended to detect and prevent terrorist activity but flatly forbid the use of information gleaned by such surveillance for any purpose other than to protect national security.

Now this is laughable on its face. One of the important reasons we dislike government snooping is the reasonable fear that information, whatever the ostensible purpose of gathering it, will be abused.

But it also makes Posner's argument self-defeating. If the President can authorize the NSA program, despite contrary legislation, on the ground that it is clearly in the national interest (in the President's sole discretion) then why could he not also violate any restrictions of the type Posner suggests on the same basis? Surely it is in the national interest to enforce tax laws, or intercept drug deals, etc.
1.31.2006 12:10pm
ficus:
Medis,

Don't you think that the men who wrote the constitution and ratified it assumed that judges acted pragmatically, and that they were sanguine about granting the judiciary independence because they thought that? A judiciary that was not results-oriented, at least sometimes, would be an encumbrance on the government, or, alternatively, would have to be ignored by the executive.

The judiciary that we have is the one that we, as a people, have permitted to evolve; and it is pragmatic because that is the way the country is.
1.31.2006 12:16pm
Kovarsky (mail):
Neal,

I wasn't purporting to frame "the most important question," so your one-upsmanship is sort of misplaced. I was just pointing out an irony.

But for the sake of comprehension, I don't understand your point? Is your point that Katz was wrong, and that the 4th amendment has nothing to do with wiretaps?
1.31.2006 12:24pm
Kovarsky (mail):
Ficus,

I don't think the framers contemplated any particular interpretive methodology, save ARGUABLY a textualist interpretation for STATUTES.

I really hope people are reading the O'connor thread, where pragmatism is getting roughly the opposite treatment.
1.31.2006 12:27pm
Medis:
ficus,

The question is a bit more subtle than that. Of course some elements of pragmatism are part of adjudication, particularly in a common law system. The more interesting question is what role those elements of pragmatism should play in adjudication, particularly where there is relevant written law (not just judge-made law).

As Posner articulates his theory, policy determinations should be the initial and dominant consideration. Things like the texts of relevant written laws play a secondary, "side-constraint", role in his theory--eg, it is only if those texts clearly block the judge's preferred result that they play a role in his analysis.

In essence, this is simply a reversal of the more conventional priority of analysis. Most judges will say that they start with the texts of the relevant laws, and if the written laws mandate a certain result, then policy considerations are largely irrelevant. It is only if the written law is truly ambiguous, or if the written law explicitly makes the issue a matter of judicial discretion, or perhaps if the result in a given case is truly absurd (not just unreasonable), that policy considerations may come into play.

I think this issue of prioritization likely is in fact important in practice, including for the reason that I suggested (eg, I believe that judges are likely to weight the relevant texts even less in their analysis given Posner's prioritization, as opposed to the more conventional prioritization). And from what I have seen in terms of the Founder's theories of adjudication, this was also their preferred prioritization. Indeed, this is essentially the prioritization that existed in the common law.
1.31.2006 12:34pm
Michael B (mail):
Posner is not even offering a legal opinion, he's addressing and focusing upon practicalities (e.g., threats, reforming FISA, histories). As such, it's a well grounded and eminently argued piece, without presumption or animus. From the standpoint of legal opinion he strongly indicates neutrality by the end of the opening graph and throughout the piece he transparently acknowledges his (and our) knowledge gaps. It's an informed and thoughtful piece, lending perspective.
1.31.2006 1:05pm
ficus:
Medis,

Thank you for a very thoughtful response.

I see your point: a judge whose theory of judging calls for him to place his desired result at the top of his criteria will reach decisions that are more idiosyncratic, less statute- and precedent-based, than one who places textual interpretation (e.g.) at the top, even if the second judge will in practice reach his desired result much of the time.

Hmmm. Maybe there are two ways for a judge to prioritize his desired result. One way is for him to consult his personal predilections. The other way is for him to consult his intuition of how "the country" or "the educated public" would prefer to see the case come out. In the latter case, if he has good insight into how the public thinks, his result will probably be not so idiosyncratic as in the former case.

It seems to me that idiosyncratic judging is clearly bad, but judging based on knowing how the public thinks is not clearly bad, although not clearly good. How the public thinks, even in cases where the statute is clear, should play some part, don't you think? It is a murky topic; but my point is that the best law-school exam answer to a case may not be the best answer for a judge to give.
1.31.2006 1:29pm
srg (mail):
Medis,
You wrote:

"Most judges will say that they start with the texts of the relevant laws, and if the written laws mandate a certain result, then policy considerations are largely irrelevant. It is only if the written law is truly ambiguous, or if the written law explicitly makes the issue a matter of judicial discretion, or perhaps if the result in a given case is truly absurd (not just unreasonable), that policy considerations may come into play."

But these issues have not (yet) entered the courts at all. Posner was writing as a citizen of a country attacked on 9/11, in addition to explaining his judicial philosophy, and the policy questions are at least as important as the legal and constitutional ones. This brings me back to the point I was trying to make about Bush. Given the high stakes, if he was told by his legal counsel either that what he was doing was perfectly legal and constitutional, or that there was a plausible case that it was, or that it would probably never get to the courts anyway, I think it was understandable that he would put the question of what was the best way of dealing with Al Qaeda first and go ahead with the warrantless wiretapping on grounds of national security. I am far from claiming that Bush should be cmpared to Lincoln, but just as Lincoln expected Congress retroactively to approve his suspension of habeas corpus, which it did, I think Bush could have expected Congress eventually to ratify his wiretapping, or at least not to pass a new law against it.
1.31.2006 1:31pm
Mylar Thomson (mail):
Posner is not speaking as a judge. He is speaking about an approach toward public policy-making, not adjudicating any case with specific-facts.
1.31.2006 2:35pm
Neal Lang (mail):
I wasn't purporting to frame "the most important question," so your one-upsmanship is sort of misplaced. I was just pointing out an irony.

But your question "begged the question" of when should "Strict Construction be applied? Before the precedence or after.
But for the sake of comprehension, I don't understand your point? Is your point that Katz was wrong, and that the 4th amendment has nothing to do with wiretaps?

My point is that Olmstead was right.
1.31.2006 3:12pm
Medis:
ficus,

Unfortunately, I think there is a natural human tendency to conclude that most people likely believe the same things we believe. In other words, I'm not sure there is going to be much of a distinction in practice between a judge's personal predilictions and his or her "intuition" about what the public would want.

srg,

I certainly don't question Posner's right to make policy arguments, although elsewhere I note the limits of his analysis. But I took the issue at hand to be how he describes the relationship beyween policy considerations and other possible legal considerations. So, I think we can comment on that aspect of his argument without accepting or rejecting his actual policy analysis.

As for the President, I think the problems arise in your second and third alternatives. "Plausible" can cover a lot of ground, and I would suggest that the President's duty to faithfully execute the laws requires him to believe more than that there is some "plausible" legal rationale for his actions. Rather, I would suggest that he has a good faith duty to ascertain, to the best of his ability, what the law actually requires, and to execute the law accordingly.

Similarly, because the President has his own constitutional duty to faithfully execute the laws, it is not particularly relevant whether an Article III court will be reviewing his actions. Indeed, for the most part the President is immune to personal legal liability within Article III courts. But that immunity does not relieve the President of his duty to faithfully execute the laws. Rather, it just means that the constitutional remedy for any such failures would be impeachment and removal, not adjudication in an Article III court.

Finally, as I have noted before, I do think there are cases in which a President could constitutionally violate some federal law in response to an unanticipated emergency, asking Congress for a retroactive amendment afterwards. But I don't think the President can constitutionally do so without seeking such a retroactive amendment as soon as practicable. And in this case, we know a date by which it had become practicable for the President to seek an amendment to FISA--the date of the passage of the USA-PATRIOT Act, which actually amended FISA.

Of course, the Administration is suggesting that it could not have sought such retroactive authorization, either because to do so would reveal too much to the terrorists, or simply because Congress may not have given it. But neither of those rationales has anything to do with exigent circumstances. Rather, each essentially rationalizes bypassing Congress indefinitely, and so we are back to the President's basic view that Congress should have no role at all in regulating the conduct of war.
1.31.2006 3:47pm
srg (mail):
Medis,

Thank you for your replies; I am sort of playing devil's advocate here.

I would qualify your last statement, though, by saying that the administration may think that Congress should have no role in regulating the war on terror (we can probably agree that it is misnamed), not on all wars. They may be wrong, but they have a better case than they would in a more typical war, since this war may last indefinitely and is more amorphous than most wars.
1.31.2006 4:15pm
Neal Lang (mail):
As for the President, I think the problems arise in your second and third alternatives. "Plausible" can cover a lot of ground, and I would suggest that the President's duty to faithfully execute the laws requires him to believe more than that there is some "plausible" legal rationale for his actions. Rather, I would suggest that he has a good faith duty to ascertain, to the best of his ability, what the law actually requires, and to execute the law accordingly.

Actually, it is the sworn "duty" of the President to "execute the office of President", the "laws" aren't even mentioned, to wit:
Article. II. [Section 1.]Before he enter on the Execution of his Office, he shall take the following
Oath or Affirmation: -- "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Obviously the Framers of the Constitution thought that the President feality was to Constitution, which he swears "to the best of (his) Ability" to "preserve, protect and defend". In cases where some law of Congress conflicts with the President ability to "faithfully execute the Office of President of the United States", it would seem that the Framers expected his Oath to "kick-in" and for him to what was necessary to "preserve, protect and defend the Constitution of the United States".

Seeing how the Supremes unconstitutionally amended the the Constitution in Katz, outside of the Article V requirements, by changing the 4th Amendment to include "wiretaps", the case that the President violated the Constitution by approving "warrant-less wiretap" does not hold water.

This leaves only FISA - a law written specifically to prevent the President from using "electronic surveillance" against his "political enemies". Unless a case can be made that al Qaeda is really part of the DNC, the rationale for the application of FISA is not met.

Additionally, the President has a great case that his 2001 Authorization to Use Military Force specifically applied to situations involving "enemy agents" within the US when they were in contact with suspected terrorists overseas, thus over-riding FISA.

BTW, if the Framers intending for the Congress to micro-manage the "conduct of war", they would have named the Speaker of the House, Commander-in-Chief, instead of the President.
1.31.2006 4:32pm
ficus:
Medis,


...I would suggest that the President's duty to faithfully execute the laws requires him to believe more than that there is some "plausible" legal rationale for his actions. Rather, I would suggest that he has a good faith duty to ascertain, to the best of his ability, what the law actually requires, and to execute the law accordingly.


Why? Is the president bound to follow the actual law more closely than the Supreme Court? The Supreme Court habitually uses transparent rationalizations to explain its decisions. The doctrine of the enumerated powers of Congress, for instance, has become all but meaningless, as the Court has made a practice of upholding nearly any statute that does not violate the Bill of Rights. You seem to be saying that the president is held to a higher standard.

The duty to see that the laws are faithfully enforced has not historically been honored in a strict sense. Many laws have gone unenforced, or weakly enforced, without much complaint. How sharp is the president in seeing that perjury in federal court is prosecuted? How careful in scrutinizing acts of Congress for unconstitutionality before he signs them? And how strictly have presidents scrutinized the legality of their own acts? Not very.

The system works as it does because the players play as they do. You want it to work as written, which could be a disaster.
1.31.2006 4:35pm
TP:
Two comments:

1. Pure pragmatists are unprincipled. They believe ideas, theories, and principles have no role in human life. Action is all that matters.

2. "War on Terror" is a marketing jingle. You can't have a "war on terror," any more than you can have a "war on drugs." Terrorists are thugs, and should be dealt with by police, not the army. These "war on " are merely ploys to allow the state to gain more control over citizens.
1.31.2006 5:28pm
Medis:
srg,

Hmm--I would have thought the indefinite and amorphmous nature of the "war" in question would actually weaken the President's case for excluding Congress, since that starts sounding less and less like a temporary exception to our basic separation and balance of powers and more and more like a comprehensive and permanent reordering of our system of government. And the latter is what the Supreme Court has rejected.

ficus,

I don't think that Article III judges are any less bound "to ascertain, to the best of [their] ability, what the law actually requires." Of course, people can have good faith disagreements about what the law actually requires, and the courts will naturally become most famous (or rather infamous) for their most difficult and contentious decisions. But that doesn't change their basic duty.

On enforcement: I think you might be talking about prosecutorial discretion. Interestingly, in some criminal systems there is very limited prosecutorial discretion, and if Congress expressly limited prosecutorial discretion in the federal criminal system, I think the President would be bound to obey those limits. But in any event, Congress has not done so in the federal system. So, I don't think there is an actual conflict here.

On Presidents in general: you are right, some Presidents have, at one time or another, consciously ignored or even violated their duty to faithfully execute the laws. A couple have even been impeached on such a charge. But I actually think the history is not quite what you are suggesting. I think many Attorney Generals--and members of the OLC, and so on--have taken their duty to provide legal advice to the President very seriously. I also think that many Presidents have taken that advice very seriously.

Of course, obviously the President ultimately has to decide what the law actually requires (and thus ultimately he should be held accountable for such decisions). But I don't think it is right to imply that Presidents have systematically ignored this duty--although, again, people can have good faith disagreements about what the law actually requires.
1.31.2006 5:33pm
Bruce Hayden (mail) (www):
I have very much enjoyed this discussion. Much of it is by legal scholors much more skilled than I.

But the later posters have brought something up that I posted about in other fora. The Supreme Court has a duty above and beyond that of Judge Posner in that they also have to maintain the power of their branch of government. The Judiciary has what some have called "soft power". They don't have soldiers, FBI agents, etc. Rather, their power is in their moral authority. In law school, I was taught (I think) that this really started with Marbury v. Madison, that they took upon themselves the power to decide what the Constitution means.

The Executive on the other hand has both "soft power" and "hard power". It has both moral authority and guns. So, to a very great extent, the Judiciary is dependant upon its "soft power" to make the Executive do what they wish it to.

Now, let us accept, arguendo, that FISA, by its language, would ban the NSA surveilance, or at least an important part of it. Let us also assume, arguendo, that the President is honest when he says that the reason that Americans are being surveiled by this program is that the NSA is trying to identify people being called by Al Qaeda. Also, lets accept, arguendo again, that the President believes that this is very important for national security and in preventing another 9/11. Finally, let's assume that a majority of Americans (and, in particular, a significant majority of Red State voters) back this.

So, what happens if the dispute (such as the pending ACLU lawsuit) gets to the Supreme Court? Do the Justices blindly interpret the laws and Constitution here, and let the chips fall as they may?

I submit that this is unlikely. Rather, I suggest that it is much more likely that they interpret the AUMF to effectively amend FISA to the extent that the NSA program is legal. Why? Because ruling against the President would jepardize their "soft power". Why? Because of what happens if the President calls their bluff (and a lot of people have suggested that it is foolish to play poker with this President). What happens if he refuses to terminate the NSA program? How are they going to enforce their decision against him? After all, he is the one for whom all the FBI agents, soldiers, et al. work. Not the Judicary. He is the one with the "hard power". Not them.

Can they afford to take the chance that he would defy them? I would suggest not. They can't take the chance that he would do that, because that would establish that they were not the final arbitors of what laws and the Constitution means. Maybe a bit like Marbury v. Madison in reverse.

One poster asked then what are the limits on a president's power to ignore the other branches of government. My answer is the same as that an 8th grade civic student would give - impeachment. Nixon ended up obeying the Supreme Court because of the real possibility that he would become the second president in history to be impeached (obviously, that honor ultimately fell to Mr. Clinton).

Here you have a situation where a majority of the people seem to support the President in the NSA surveilance. Plus, his party controls both houses of Congress. Absent more, the chances of President Bush being impeached for this are quite low.

I should add that Mr. Nixon forfeited a lot of his "soft power" (and moral authority) when his people burgled the DNC. That was personal and venal. Mr. Bush on the other hand can go to the American people and plausibly claim that he is protecting them from another 9/11 with this program. That arguably puts him in the position of having both all the "hard power" plus a surplus of "soft power" in any showdown with the Judicary.

The way this ties into Judge Posner's "pragmatism" is that the power dynamics between the different branches of government are likely to affect the place where the Justices start. With probably a majority of the people behind the President, and, more importantly, a vast majority of Red State voters behind him, I don't see the Justices calling his bluff. They can't afford to bet 200+ years of "soft power" on this.

That then gives them the implicit choice of either expanding FISA via the AUMF or finding for the President on his Article II powers. But that later would truly interject them into a Balance of Power dispute, and end up increasing the power of the Executive, vis a vis the Legislature. Something I think they would do to prevent betting their "soft power", but not preferable to finding the program legal on narrow statutory grounds.
1.31.2006 8:42pm
Neal Lang (mail):
I don't think that Article III judges are any less bound "to ascertain, to the best of [their] ability, what the law actually requires." Of course, people can have good faith disagreements about what the law actually requires, and the courts will naturally become most famous (or rather infamous) for their most difficult and contentious decisions. But that doesn't change their basic duty.

Of course, Judges, like members of Congress are merely sworn to support the Constitution, to wit:
Article VI. The Senators and Representatives before mentioned, and the Members of the
several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Please note the prohibition against any "religious test" being required for any office or public Trust under the the United States, no matter what Sen. Dick Durbin might think.

Congress actually takes the following oath of office:
"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

Federal Judges and Justices take the following oath of office:
"I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God."

I do see where Federal Judges have a sworn "duty" that they are bound "to ascertain what the law actually requires".

Interestingly, any idea that Federal Judges are bound "to ascertain, to the best of [their] ability, what the law actually requires" cannot be found in Article III or anywhere else in my copy of the Constitution of the United States of America. Perhaps you might kindly point it out to me.
1.31.2006 9:03pm
Neal Lang (mail):
Can they afford to take the chance that he would defy them? I would suggest not. They can't take the chance that he would do that, because that would establish that they were not the final arbitors of what laws and the Constitution means. Maybe a bit like Marbury v. Madison in reverse.

Ah! "Mr. Marshall made his decision, now let him enforse it!" President Andrew Jackson.

"Old Hickory's" final insult on the Supreme Court was his nominating a Chief Justice named Roger Brooke Taney.
1.31.2006 9:14pm
Neal Lang (mail):
Terrorists are thugs, and should be dealt with by police, not the army.

Tell that to the Marines that took Fullujah - TWICE - because they turned it over the "police" after the first time!
1.31.2006 9:19pm
Neal Lang (mail):
Interestingly, in some criminal systems there is very limited prosecutorial discretion, and if Congress expressly limited prosecutorial discretion in the federal criminal system, I think the President would be bound to obey those limits.

So Congress passes enhanced Federal penalties (Class D Felonies) for criminal felons in possession of firearms the same time they passed the Brady Bill in 1994. Federal prosecutors refuse to endict and try felons arrested in with firearms. Is President Clinton disregarding the law because his Justice Department refuses to enforce it? Or did Congress pass a law they knew wouldn't be enforced?
1.31.2006 9:36pm
Just an Observer:
Bruce Hayden:

... Why? Because of what happens if the President calls [the Supreme Court's] bluff (and a lot of people have suggested that it is foolish to play poker with this President). What happens if he refuses to terminate the NSA program? How are they going to enforce their decision against him? After all, he is the one for whom all the FBI agents, soldiers, et al. work. Not the Judicary. He is the one with the "hard power". Not them.


I write this as I watch the three branches of our republic united under one roof to hear the President's State of the Union address. I am saddened to read your suggestion that he would muscle his way past a lawful ruling of the federal courts, if it came to that. I have noticed this spectre raised anonymously in blogs, and I certainly hope it does not derive, even indirectly, from any veiled suggestion from the White House.

Bruce Hayden:

... With probably a majority of the people behind the President, and, more importantly, a vast majority of Red State voters behind him, I don't see the Justices calling his bluff. They can't afford to bet 200+ years of "soft power" on this.


The polls I have seen have showed the public about evenly split over this controversy, and the majority shifts depending on whether the poll question emphasizes "terrorism" or "warrants." I believe the support for Bush would evaporate dramatically if we found ourselves in the scenario you raisie -- a President openly defying both the Congress and the Supreme Court. Respect for the law, and for the courts, runs broad and deep in this country.
1.31.2006 9:44pm
TP:
Neal,


Terrorists are thugs, and should be dealt with by police, not the army.

Tell that to the Marines that took Fullujah - TWICE - because they turned it over the "police" after the first time!


Well, if they hadn't taken Fallujah the first time (and in the process, destroying the previous governemnt and law enforcement already in place), there wouldn't have been any need to turn their mess (anarchy) over to the police. Fallujah had nothing to do with terrorism and Al-Queda until AFTER invaded. Now it is a nest of anti-american terrorists. US policy at its' finest.

And, yes, I still believe that terrorism is still a police matter. Armies are supposed to be used to war against other nations. With what nation are we at war? (Hint, it's not Iraq.)
1.31.2006 9:52pm
Neal Lang (mail):
Well, if they hadn't taken Fallujah the first time (and in the process, destroying the previous governemnt and law enforcement already in place), there wouldn't have been any need to turn their mess (anarchy) over to the police. Fallujah had nothing to do with terrorism and Al-Queda until AFTER invaded. Now it is a nest of anti-american terrorists. US policy at its' finest.

By "law enforcement" of the "previous government" do you mean the one that employed "rape houses" to maintain "law and order". I suppose it depends on how you define "mess". Frankly, it is a stretch to call the "mass murder machine" known as Saddam Hussein's Ba'athist Regime a government, IMMHO. But I am sure you supported Mussolina too, because made the trains run on time. Of course, the between 300,000 to 1,000,000 Iraqis murdered by Saddam and his thugs might object to your glowing endorsement of "Butcher of Baghdad".

As for terrorists in Fullujah before the Coalition of the Willing overthrow your ideal, Saddam Hussein, what do you call his Fedayeen. Perhaps it is time that you stop and smell the stench of your hero's mass graves. Whether you like it or not, the people of Iraq prefer the US Marines to the Republican Guard.

BTW, new intelligence show the tie between Saddam and al Qaeda:
"In August 1998, the detainee traveled to Pakistan with a member of Iraqi Intelligence for the purpose of blowing up the Pakistan, United States and British embassies with chemical mortars."

U.S. government "Summary of Evidence" for an Iraqi member of al Qaeda detained at Guantanamo Bay, Cuba

FOR MANY, the debate over the former Iraqi regime's ties to Osama bin Laden's al Qaeda network ended a year ago with the release of the 9/11 Commission report. Media outlets seized on a carefully worded summary that the commission had found no evidence "indicating that Iraq cooperated with al Qaeda in developing or carrying out any attacks against the United States" and ran blaring headlines like the one on the June 17, 2004, front page of the New York Times: "Panel Finds No Qaeda-Iraq Tie."

But this was woefully imprecise. It assumed, not unreasonably, that the 9/11 Commission's conclusion was based on a firm foundation of intelligence reporting, that the intelligence community had the type of human intelligence and other reporting that would allow senior-level analysts to draw reasonable conclusions. We know now that was not the case.

John Lehman, a 9/11 commissioner, spoke to The Weekly Standard at the time the report was released. "There may well be--and probably will be--additional intelligence coming in from interrogations and from analysis of captured records and so forth which will fill out the intelligence picture. This is not phrased as--nor meant to be--the definitive word on Iraqi Intelligence activities."

Lehman's caution was prescient. A year later, we still cannot begin to offer a "definitive" picture of the relationships entered into by Saddam Hussein's operatives, but much more has already been learned from documents uncovered after the Iraq war. The evidence we present below, compiled from revelations in recent months, suggests an acute case of denial on the part of those who dismiss the Iraq-al Qaeda relationship.

There could hardly be a clearer case--of the ongoing revelations and the ongoing denial--than in the 13 points below, reproduced verbatim from a "Summary of Evidence" prepared by the U.S. government in November 2004. This unclassified document was released by the Pentagon in late March 2005. It details the case for designating an Iraqi member of al Qaeda, currently detained in Guantanamo Bay, Cuba, as an "enemy combatant."

1. From 1987 to 1989, the detainee served as an infantryman in the Iraqi Army and received training on the mortar and rocket propelled grenades.
2. A Taliban recruiter in Baghdad convinced the detainee to travel to Afghanistan to join the Taliban in 1994.
3. The detainee admitted he was a member of the Taliban.
4. The detainee pledged allegiance to the supreme leader of the Taliban to help them take over all of Afghanistan.
5. The Taliban issued the detainee a Kalishnikov rifle in November 2000.
6. The detainee worked in a Taliban ammo and arms storage arsenal in Mazar-Es-Sharif organizing weapons and ammunition.
7. The detainee willingly associated with al Qaida members.
8. The detainee was a member of al Qaida.
9. An assistant to Usama Bin Ladin paid the detainee on three separate occasions between 1995 and 1997.
10. The detainee stayed at the al Farouq camp in Darwanta, Afghanistan, where he received 1,000 Rupees to continue his travels.
11. From 1997 to 1998, the detainee acted as a trusted agent for Usama Bin Ladin, executing three separate reconnaissance missions for the al Qaeda leader in Oman, Iraq, and Afghanistan.
12. In August 1998, the detainee traveled to Pakistan with a member of Iraqi Intelligence for the purpose of blowing up the Pakistan, United States and British embassies with chemical mortars.
13. Detainee was arrested by Pakistani authorities in Khudzar, Pakistan, in July 2002.

Interesting. What's more interesting: The alleged plot was to have taken place in August 1998, the same month that al Qaeda attacked two U.S. embassies in East Africa. And more interesting still: It was to have taken place in the same month that the Clinton administration publicly accused Iraq of supplying al Qaeda with chemical weapons expertise and material.

But none of this was interesting enough for any of the major television networks to cover it. Nor was it deemed sufficiently newsworthy to merit a mention in either the Washington Post or the New York Times.

The Associated Press, on the other hand, probably felt obliged to run a story, since the "Summary of Evidence" was released in response to a Freedom of Information Act request filed by the AP itself. But after briefly describing the documents, the AP article downplayed its own scoop with a sentence almost as amusing as it is inane: "There is no indication the Iraqi's alleged terror-related activities were on behalf of Saddam Hussein's government, other than the brief mention of him traveling to Pakistan with a member of Iraqi intelligence." That sentence minimizing the importance of the findings was enough, apparently, to convince most newspaper editors around the country not to run the AP story.

It's possible, of course, that the evidence presented by military prosecutors is exaggerated, maybe even wrong. The evidence required to designate a detainee an "enemy combatant" is lower than the "reasonable doubt" standard of U.S. criminal prosecutions. So there is much we don't know.

Indeed, more than two years after the Iraqi regime of Saddam Hussein was ousted, there is much we do not know about the relationship between Iraq and al Qaeda. We do know, however, that there was one. We know about this relationship not from Bush administration assertions but from internal Iraqi Intelligence Service (IIS) documents recovered in Iraq after the war--documents that have been authenticated by a U.S. intelligence community long hostile to the very idea that any such relationship exists.

We know from these IIS documents that beginning in 1992 the former Iraqi regime regarded bin Laden as an Iraqi Intelligence asset. We know from IIS documents that the former Iraqi regime provided safe haven and financial support to an Iraqi who has admitted to mixing the chemicals for the 1993 attack on the World Trade Center. We know from IIS documents that Saddam Hussein agreed to Osama bin Laden's request to broadcast anti-Saudi propaganda on Iraqi state-run television. We know from IIS documents that a "trusted confidante" of bin Laden stayed for more than two weeks at a posh Baghdad hotel as the guest of the Iraqi Intelligence Service.

We have been told by Hudayfa Azzam, the son of bin Laden's longtime mentor Abdullah Azzam, that Saddam Hussein welcomed young al Qaeda members "with open arms" before the war, that they "entered Iraq in large numbers, setting up an organization to confront the occupation," and that the regime "strictly and directly" controlled their activities. We have been told by Jordan's King Abdullah that his government knew Abu Musab al Zarqawi was in Iraq before the war and requested that the former Iraqi regime deport him. We have been told by Time magazine that confidential documents from Zarqawi's group, recovered in recent raids, indicate other jihadists had joined him in Baghdad before the Hussein regime fell. We have been told by one of those jihadists that he was with Zarqawi in Baghdad before the war. We have been told by Ayad Allawi, former Iraqi prime minister and a longtime CIA source, that other Iraqi Intelligence documents indicate bin Laden's top deputy was in Iraq for a jihadist conference in September 1999.

All of this is new--information obtained since the fall of the Hussein regime. And yet critics of the Iraq war and many in the media refuse to see it. Just two weeks ago, President Bush gave a prime-time speech on Iraq. Among his key points: Iraq is a central front in the global war on terror that began on September 11. Bush spoke in very general terms. He did not mention any of this new information on Iraqi support for terrorism to make his case. That didn't matter to many journalists and critics of the war.

Of course, there were al Qaeda working with Saddam - only political partisanship, or a fetish for mustached mass murderers would cause anyone to deny it!
1.31.2006 11:32pm
Medis:
Bruce,

The Supreme Court seemed willing in Hamdi to reject the government's exclusive powers argument, and so I suspect that they would do so in this case if given the opportunity. And like JaO, I strongly suspect that the public would not support the President if he decided to defy the Supreme Court on this issue.
2.1.2006 12:06am
Bruce Hayden (mail) (www):
I respectfully disagree. The President has the bully pulpit, and has been using it this last bit to make the case that this program is essential for national security, and, in particular, to prevent another 9/11 type attack.

When framed as a choice between protecting us against known terrorists and the vague 4th Amdt. type claims made by his opponents, a large number of people in this country seem right now willing to accept that sort of vague intrusion.

Add to this that the people who really matter are not those screaming most about this program from a civil liberties point of view, because most of them probably voted for John Kerry and live in Blue States. Rather, the people he needs most to convince are the Red State voters who sent a majority of Republicans to Congress. That is because the ultimate redress for presidential overstepping is always impeachment, and, as it stands right now, most of those Red State voters would turn out any Republican Congressman voting to impeach.

What must always be remembered about this President is that he doesn't care what the elites in media, law schools, etc. think. He has a job to do, and isn't looking at public opinion or his legacy when doing it, except to the extent that lack of approval hurts his ability to do what he thinks is required.
2.1.2006 12:02pm
Bruce Hayden (mail) (www):
Let me add that the Supreme Court doesn't have a bully pulpit and has traditionally be very reluctant to speak out on any issue. Some of this may have been seen in what appears to some here to have been communal responses to the President's SOTU speech last night.

In any case, that leaves the exact same people to yell and scream about him ignoring the Supreme Court as have been yelling and screaming about the NSA program over the last couple of months. Add that many of them have lost serious credibility by attacking pretty much whatever he does, esp. in the War on Terror. Why would the American people start listening to these opponents who have been crying "wolf" so long anyway?
2.1.2006 12:07pm
Bruce Hayden (mail) (www):
Another point. The President, et al., have been making a case that the NSA program has helped prevent some attacks, and if it had been fully in place, without the "wall", then maybe 9/11 itself could have been prevented.

Besides selling the public, this sort of evidence is, IMHO, precisely the sort of thing that would sell the Supreme Court on any Article II or AUMF claims. He can go into court and claim, most likely with a straight face, that this program, indeed, is necessary to his doing his job as president in protecting the American people from terrorists. And he appears to have the evidence to back this.

Which is another point relating to the Posner article. Faced with this, I don't see the Supreme Court taking the chance that he is wrong, because if there were another major terrorist attack after they forbid the NSA program, the American people would look at them as part of the cause. For their "soft power", they can't afford to take that chance either.
2.1.2006 12:16pm
Medis:
Bruce,

As a general note, you seem to be assuming that if the President claims something "with a straight face", everyone will assume that whatever he is claiming is the plain, unvarnished truth. I'm not sure that is a valid assumption.

However, I agree that this becomes a political issue if it gets to the impeachment stage, and obviously the President is in a much better position if the GOP controls the House. Still, I think you are overlooking at least three points in your analysis.

First, I think most people understand that something can be a good idea but might still be illegal. So, just because the President says--or even proves--that this program was a good idea doesn't mean people will assume that it was legal.

Second, I think most people understand the appropriate remedy for a law like that (a law which prevents people from doing good things). The appropriate remedy, of course, is to change the law. So, again, just because the President proves the law should be different doesn't mean he is excused from actually trying to change the law.

As an aside, ironically, the fact that the GOP controls Congress actually heightens this problem. I suspect that for good or ill, some people would be more inclined to accept the President's decision to bypass Congress if the Democrats were in control of Congress. But the idea that even dealing with a Congress controlled by his own party is too burdensome for the President is a little hard to swallow.

Third, I think most people accept that when it comes to issues of legal interpretation, the Supreme Court has the final say. In other words, they intuitively understand that once the executive gets to decide for itself what the law requires, a dangerous concentration of powers has occurred. And again, the President has another choice, particularly when it comes to statutory issues: he can ask Congress to change the law.

So, does all that mean that enough people would support impeachment if the President insisted on violating the law as decided by the Supreme Court? I'm not sure, but I don't think you can rule it out simply because the President is trying to make the case that this was a necessary program. And I might note that as of now, this is not a terribly popular President. Accordingly, adding flagrant defiance of the Supreme Court to the list of his political problems might well be enough to push his popularity ratings to Nixonian levels.

And as a final aside--keep in mind that even Republican members of Congress have a lot at stake, particular those members of Congress who contemplate the possibility of serving during a Democratic Presidency. In the long run, they may not be so happy with the idea of the President nullifying their laws and daring them to do something about it. So, for some of them at least, this may become less of an issue about whether their voters are requiring impeachment, and more of an issue about whether their voters would accept impeachment.

But, of course, this is all speculative at this point. On the other hand, your point is inherently speculative, and I don't think the Supreme Court will be willing to endorse a legal position they would not otherwise accept on the basis of mere speculation that the President might try to defy them and might subsequently get away with it (eg, without being impeached).
2.1.2006 1:59pm
Just an Observer:
Bruce Hayden,

I don't disagree that the President will wage an aggressive political campaign in support of his position. That has been his entire strategy since the day after the NYT first revealed the existence of the NSA surveillance program.

But the venue where such political factors weigh heavily is in Congress, which is also where the next moves will be made. The outcome I predict there is some sort of compromise, probably brokered by moderate Senate Republicans. If you are right, and the "Terrorist Surveillance Program" is an irresistible juggernaut, then Congress will capitulate.

As for the courts, Bush's lawyers obviously are counting on inertia and procedural barriers -- primarily the standing issue -- to keep the merits of the controversy from reaching 1 First Street NE anytime soon. The essence of their legal strategy is to keep such substantive matters out of court in the first place.

The "bring-it-on" hubris would melt if Paul Clement actually had to stand up there and defend the legal arguments that have been spun in the Court of Public Opinion. If things got that far, and the government lost in the Supreme Court, I have to believe that Bush would back down.
2.1.2006 1:59pm
Medis:
JaO,

I have to say that I'm not so sure the President would back down if it came to that. It would be an enormous, maybe even foolhardy, risk for him to take, both personally and for his party. But worrying about such risks really isn't his style.
2.1.2006 2:20pm
Bryan DB:
Way back up-thread, srg and Mylar said that Posner only approached the question of surveillance from the policy angle first, instead of the legal angle, because he was "writing as a citizen." Lest there be any doubt that Posner does believe that it's "policy first," even as a judge, here is a statement of his from the TNR debate:

"The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion."

As the great Gregg Easterbrook would say, I'm going to put that quote in my autotext for the next time someone rails about liberal activitist judges who only believe in policy first and the text second.
2.1.2006 2:35pm
Medis:
Bryan,

Interestingly, I have long heard arguments to the effect that the vast majority of people, regardless of political preference, don't want activist judges--which I think is true, although the tricky part is identifying which judges are truly "activist", and which are merely reaching different good faith conclusions about what the law requires.

Anyway, now some people seem to be arguing that the people won't tolerate anything BUT activist judges. As noted, however, I think the first people got it right.
2.1.2006 3:12pm
Just an Observer:
Medis,

When I said "I have to believe that Bush would back down," partly I meant that I prefer to believe such a brazen power grab would not really happen -- because it would be dumb and it would be wrong. I could be mistaken. I also prefer to believe that we will not see an impeachment proceeding result from all this. I could be mistaken.

(I also prefer to believe we will never have a Reichstag fire, but that is another few clicks up the scale of unthinkable things. On the other hand, I recall the chilling sight of a sandbagged machine gun on the Capitol steps in 1968, and I remember the Saturday Night Massacre a few years later. Extraordinary things can happen.)

I do wonder about the source of these wingnutty talking points pinging around the blogosphere. Some folks seem to be salivating for an extralegal confrontation. The real players have plausible deniability, and I don't discount the possibility that someone important doesn't mind if the threat of a real constitutional crisis gets floated. The credibility of those who pass on the meme is not so important.
2.1.2006 3:15pm
Michael B (mail):
Posner, as excerpted by Bryan DB, different emphases: "The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion."

Even at that point he's not indicating it's all concluded since he's referring to his approach. An approach, certainly so an initial, tentative approach, is not a conclusion.

Too, the fact remains - and it's both inherent and more overtly and repeatedly indicated as such throughout Posner's article as well as his response to Heymann - Posner was addressing policy, not a legal opinion, in fact he was positively avoiding the legal opinion per se.
2.1.2006 3:47pm
TP:
Neal,

You totally missed my point, which is that it was not our mess to clean up in the first place. Nice tirade though!
2.1.2006 3:48pm
Kosta Calfas (mail):
Because Richard Posner is encyclopaedically read in the history and philosophy of law, his propaganda passes for erudition amongst those too lazy to do their own research. He at once denounces "platonic abstraction" in law, and then uses "the good" to defend George W. Bush's domestic spying programme initiatives over and above the rule of law. Apparently, he's betting the apalling highschool dropout rates and low pedagogical standards in the United States has rendered the actual readership of Plato and Aristotle so small, he's permitted to err on the side of self-contradiction. This flabby piece of rhetoric should be denounced. It would be unacceptable for a freshman philosophy major (or *gasp* a law clerk) to make such an error much less a judge of Posner's standing.

Clearly Posner has views founded on something entirely other than an "economic calculus" or "pragmatic consideration." If he would just state them clearly instead of dazzling us with byzantine justification or mathematical pretense, he'd appear less evasive (although I suspect, sadly, no less contradictory). Incidentally, if the concept of the 'rule of law' does read as "platonic abstraction" to Posner, that's because it's consistent. When legal opinion is contradictory, you should immediately smell political ideology. A Platonic rule of thumb from an abstractionist.
2.1.2006 3:58pm
Michael B (mail):
Kosta Calfas,

Boorish sneers and in-your-face, low-brow intonations glossed with a pretension of "knowing" superiority - all of which continues to evade not only the policy interests of the initial article but also Posner's response to Heymann at TNR and, additionally still, Posner's soon to be released book on the subject: Uncertain Shield : The U.S. Intelligence System in the Throes of Reform.

Posner, focusing upon policy, wrote without political animus or presumption. For propagandists and sectarians/partisans, that's a political sin of the first order and magnitude and therefore calls for an ad hominem invested witch hunt and scourging. One and only one thing makes this worth commenting on, the profligate ubiquity of such displays of bilious, despising hate and contempt as an all too palpable, all too real and all too common social/political force, sophistical glosses and other pretensions not withstanding.
2.1.2006 5:05pm
Just an Observer:
Jack Balkin, a liberal proponent of legal realism, pounces on the ironies raised by Posner's approach to the surveillance controversy: The NSA program and the rule of law


... If this is how defenders of the NSA program must proceed in order to argue for its legality, they well fit the caricature of judicial activism that generations of conservatives have tarred liberals with when liberals argue for extensions of civil rights and civil liberties protections. That is, instead of being constrained by law in the first instance, defenders argue that a program would be good policy and therefore strain to find that it is not illegal or unconstitutional.


I point out again the converse irony. There are honorable, non-activist, conservative jurists whose law-first methods lead naturally to rejection of President Bush's legal apologia. He recently appointed two of them to the Supreme Court (to my delight) and now must hope they never hear his case.
2.1.2006 6:49pm
Michael B (mail):
Just an Observer,

Yes, and this post in that Balkin thread is more than adequate in sufficiently answering the presumption being forwarded against Posner's article, additionally the response to Heymann and, seemingly and further still, the soon to be released book. The fact remains, the article and response can be read, in their entirety, as an approach to policy and reform. Obviously, one can charge him with legal motives as well, there's certainly not a dearth of presumption, insinuation, etc., contemptuously displayed and otherwise, about people's motives in the political and related spheres; but that more basic fact remains - apologias and remonstrations professing sum certain knowledge or some type of ratiocinated, deductive proof to the contrary not withstanding.
2.1.2006 8:11pm
ficus:
One thing that no one has mentioned is that the key players in this little drama are all in the bullseye of Al Qaeda, which has shown an inclination to go after symbolic targets. The White House and the Capitol are the two targets in Washington, besides the Pentagon, that first come to mind. Any of us who don't live or work near them, or near some comparable landmark, have little reason to fear that an Al Qaeda bomb will kill us.

It is interesting to hear people who work in the Capitol district complain about aggressive surveillance. It could mean that they are brave, or it could mean that they think the odds of anything happening are low.
2.1.2006 9:43pm
Just an Observer:
Michael B,

I have no problem with Judge Posner or President Bush advancing legislative proposals to amend FISA to further their policy objectives. I, too, am interested in that issue.

I have a serious problem with President Bush skipping that step and substituting his own judgment for that of Congress, contravening a statute in the process, and claiming unilateral executive power not grounded in the Constitution.

I also have problems with the White House spin over this issue, which repeatedly conflates policy issues and legality.

I have less concern about Posner himself at this point. But for the record, his remarks clearly indicate that he does actually judge this way:

The way I approach a case as a judge—maybe you think it heresy—is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program.

I contrast that with the analytical framework for the same issue outlined in some detail by Samuel Alito, which was grounded purely in the law. The right guy just got elevated to the Supreme Court. Posner has not a chance of getting there.
2.1.2006 10:11pm
Michael B (mail):
Just an Observer,

Those are all opinions I can respect as such and variously agree with.

Outside of the policy/reform topic and onto the methodological issue, I'm pretty much in line with the opinion expresseed in the Balkin link provided in my prior post. Differently, I don't believe any judge is capable of being grounded "purely in the law," but that touches more on a set of philosophical and methodological issues rather than juridical in any strict or isolated sense. Perhaps most significantly and back onto the policy/reform subject, I strongly suspect Posner's article reflects his policy analysis and suggested solutions shortly to be released in his book on the subject, also linked in a previous post and which I will be purchasing, given the tone of his article. At any rate, these latter mentions are noted only in passing. Thank you and good evening.
2.1.2006 11:24pm
Medis:
ficus,

And a number of commentators over time have noted that the likely target areas for terrorists (DC, NYC, perhaps SF, and so on) tend to be politically "blue".

Anyway, I'm not sure what the explanation actually is for such correlations, but I'd add to your list the possibility that they think these measures are ineffective, or perhaps even counterproductive.
2.1.2006 11:38pm