I will be posting today at Crooks and Liars and will link here to those posts once they are up.
In the meantime, here are a couple of noteworthy items:
(1) Sen. Dianne Feinstein wrote a letter yesterday (.pdf - h/t Gator in Comments) to the Chairman of the Senate Intelligence Committee, Sen. Pat Roberts (with a copy to Sen. Arlen Specter, Chair of the Judiciary Committee), regarding the 2002 DeWine legislation to amend FISA, and she specifically asked about the Statement by the DoJ's James A. Baker conveying the Administration's refusal to support the liberalization of FISA because it was unnecessary and possibly unconstitutional. Sen. Feinstein clearly understands how those events so fundamentally contradict the Administration's explanation now regarding its FISA-violating eavesdropping program.
The Administration's explanation for why it created this eavesdropping program is beginning to unravel, and that should only fuel the zeal of the Senators on the two Committees which will hold hearings on the NSA scandal within the next couple of weeks.
(2) There was an excellent article published yesterday in The Washington Post regarding the DeWine issue and related issues by Dan Eggen and Walter Pincus. That article, which followed up on the Post's article from Thursday, makes clear that the Administration's rationale for the NSA program is squarely contradicted by its statements regarding the proposed DeWine amendments to FISA, and is one of the first significant articles which treats the NSA scandal as a serious scandal for this Administration.
And on top of all of that, there is this article today in the Post by Eggen which reports on amendments to FISA proposed by the Administration in 2003 which were designed to expand the Administration's eavesdropping authority - an obvious concession by the Administration that amendments to FISA were necessary in order to grant the Administration additional eavesdropping powers.
Although the New York Times originally broke the NSA story, the Post for the last several weeks has been in the forefront of advancing it, and it seems as though the Post is finally starting to wake up to the true seriousness and the magnitude of the threat which this scandal (deservedly) poses for the Administration.
* * * * * * *
My first post on C&L is up here, which discusses the new essay in The New Republic from the increasingly pernicious 7th Circuit Court of Appeals Judge Richard Posner, who advances his advocacy of law-breaking yet another step forward to a point where, in my view, he is really teetering on the edge of propriety and ethics for what a Judge is permitted to do under the Code of Judicial Conduct.
Posner is expressly defending illegal behavior on the ground that good results justify law-breaking. He's not the only one who is arguing that. There are lots of Bush followers who, by necessity, have resorted to that theory. But he's the only federal judge I've ever heard actually argue that the President (or anyone else) has the right to break the law, and that the virtue of obeying the law is really over-rated.
* * * * *
My second post at C&L reviews some miscellaneous items which I think are interesting. I'd be particularly interested in anyone's view of item (3) in that post. I mentioned once before here that there is an odd and clearly deliberate semantic formulation which the Administration uses when giving assurances that the eavesdropping program applies only to those associated with Al Qaeda and not to "innocent Americans."
At first, I mentioned it only in passing because I didn't want to be reading too much into something that might well be innocuous, but I've seen it repeated enough times now in various documents and by various Administration officials that I'm quite sure it is a consciously used formulation which has meaning.
* * * * *
I have a third post up at C&L regarding the disparity between the Beltway media's ongoing belief that George Bush is a popular and well-liked President with a slew of polls showing that the exact opposite is true and has been true for some time now. Even in the face of these polls, the reverent Bush lovers in the media like Chris Matthews continue to spit out statements like this:
"Everybody sort of likes the president, except for the real whack-jobs."
So, according to "journalists" like Matthews, only freakish, America-hating loons are against the war in Iraq, dislike President Bush, and believe that the Administration deliberately misled the nation into war -- even though polls continuously show that a majority of Americans hold these beliefs.
The first step back to power for Bush opponents is to stop trying to please and act in accordance with the judgments of the Chris Matthews, Tim Russerts, David Broders and Joe Kleins of the world. They know less than nothing about what Americans think, and it is these coddled, Beltway blowhards who are the freakish, warped ones even as they place that label on anyone who did not fall madly and permanently in love with George Bush and his post-9/11 protective prancing.
Frome the WaPo:
ReplyDeleteBartlett's deflection:
"Democratic leaders "briefed on these programs would be screaming from the mountaintops" if they thought the program was illegally eavesdropping on Americans"
Change the capital "D" to lower case, and I'd say that's precisely what Glenn and many others are doing.
Glenn: At some point, could you clarify the legal differences between:
ReplyDelete1. Using military force;
2. Being at war;
3. Being under martial law.
To my limited understanding, a clear example of 'using military force' outside of a state of war would be something like the rescue of the SS Mayaguez from Cambodia in 1975 (or the unsuccessful helicopter rescue mission of the Iranian hostages in 1980).
I am much less clear about the legal status of the military actions in Korea, Vietnam, and Iraq; the American Civil War; and the current 'war on terror'.
During World War II, we were clearly at war. But I am not at all clear if the U.S. as a whole was under 'martial law' at that time (presumably our military forces were?), or if there are legally delimitable degrees of 'martial law'. The anonymous commenter from 1:36 in yesterday's post cited a lot of 19th century legal rulings which -- to my uneducated mind -- seemed relevant, but it was hard to follow. (In particular, its absence of punctuation mandated a very close reading to try to distinguish when the writer was speaking and when he was presumably citing judicial commentary.)
You have touched on some of these issues in past posts with your allusions to the limitations imposed by the Supreme Court when Harry Truman attempted to seize the steel mills during the Korean conflict. But a more generic overview of the constitutional issues involved in these three different postures would be tremendously useful.
I am obviously interested because of the way the metaphorical phrase 'war on terror' has been invoked literally to imply that Bush's authorization suffices to render any administration activity legal and consitutionally protected if Bush himself claims it is undertaken as a means to prosecute that 'war'. Is the 'authorization to use military force' really legally equivalent to a declaration of war? Does it always follow that a 'state of war' generates 'martial law'? Can Congress end a state of war that it initiates, or is that the sole prerogative of the President? Is it possible to be in a 'state of war' against an ambiguously defined group of individuals with no formal hierarchy or clear terms of membership that might even allow such group to tender its surrender (never mind the remote likelihood that such an event would ever actually come to pass)? Does martial law negate the Constitution (i.e. Fourth Amendment) never, sometimes, always? In short, are we totally fucked?
Thanks for your excellent posts.
War Is Peace
Just as any well-organized campaign should evolve, the planned steps are moving along. Feinstein’s letter, then when the hearings start there will a “surprise” whistleblower who will have irrefutable evidence of some sort of surveillance activity that violates some regulation that can be pumped into a “if they are doing THAT, wheat else are they doing” story. From the commenters on this thread many are primed for the “news”. Better hurry, though, the good news is starting to leak through the MSM shield and soon the whole “Iraq war is a bad move” meme will be collapsing. And, of course, there remains the problem of the stupid people who know all of these facts and don’t seem to care. Whatever is wrong with them? Don’t they read the WaPo? Don’t they WANT Democrats to be elected? Sheesh.
ReplyDeleteGlenn, why not mention Russ Tice in your blog?
ReplyDeleteYou know, the whistleblower who told the NYT that real Americans were being wiretaped illegally WITHOUT OVERSIGHT!
REASON asks Tice: You've described technologies capable of sifting through vast numbers of communications and pinpointing very specific information that intelligence analysts are looking for. What can you say about how that kind of technology is being used?
Tice: "I can't say how an intelligence agency uses it, because that would be classified. Then the FBI would have shackles and cuffs waiting on me real soon, so I have to be careful what I say. But we can talk about the technologies and we can use hypotheticals and we can use wiggle words.
If you wanted to, you could suck in an awful lot of information. The biggest constraint you're going to have is the computing power you need to do it. You need to have some huge computers to crunch that kind of stuff. More than likely you're talking about picking it up in a digital format and analyzing it depending on how the program is written depending on whether it's audio or digital recognition you're talking about, the computing power is phenomenal for that sort of thing. Especially if you're talking about mass volumes, if you're talking about hundreds of thousands of, say, telephone communications or something like that, calls of people just like you and me, like we're talking now.
Then you have things like, and this is where language specialists come in, linguists who specialize in things like accents and inflections and speech patterns and all those things that come into play. Or looking for key phrases or combinations of key words within a block of speech. It becomes, when you add in all the variables, astronomical. "
It sounds like the NSA "by-pass FISA program" that is justified by the presidents AUMF Article II Martial Law powers is just what we need in order to perpetuate the never-ending state of WAR that will run our Industrial Military Economy of the future.
1:36 says, Sorry about the bad use of punctuation yesterday.
ReplyDeleteAuthorization for Use of Military Force
September 18, 2001
Public Law 107-40 [S. J. RES. 23]
107th CONGRESS
------------------------------------------------------------------------
JOINT RESOLUTION
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force'.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.
Approved September 18, 2001.
--------------------------------------------------------------------
you might find this "teachers resource interesting:
http://www.historyofsupremecourt.org/resources/lp_defines_Milligan.htm
I'd like to bring your attention to something that was not mentioned in the original article, nor in any of these comments:
ReplyDeleteNote this in Feinstein's second letter to the committee chairs (your attached PDF):
Today, I learned that the text [of James Baker's testimony] as posted [on the Internet by the Federation of American Scientists], differs from the original text maintained by the Senate Select COmmittee on Intelligence. The original text does not contain the paragraphs attributed to Mr. baker set off and quoted in my earlier letter, and differs in other respects.
I do not know why the two transcripts are different, and I have asked my staff to investigate. Nevertheless, the official transcript from Mr. Baker presents the same issues I raised in my letter...
Now why might there be two different versions of published Congressional testimony?? Does this suggest some scrubbing or editing took place? And if so, why, and by whom? I hope this tidbit won't go unnoticed.
Now why might there be two different versions of published Congressional testimony?? Does this suggest some scrubbing or editing took place? And if so, why, and by whom? I hope this tidbit won't go unnoticed.
ReplyDeleteThe Washington Post article from Eggen and Pincus which I linked to reported on this document discrepancy, and it's clear that the reporters were distrubed by it.
That's why I say - things like changing explanations, inconsistent excuses, document games - it's all starting to smell, look and feel a lot more like a serious scandal to these reporters.
I believe there is a noticeable change in tone and attitude among some of them - their reporting has become much more scepitcal and aggressive - not where it should be, but it's an improvement.
Regarding Russell Tice - I don't know what I think about Tice himself, but I think it's important not to link the NSA whistle-blowing to just one person. If there is one thing Bush followers are good at doing, it is destroying the character of anyone who delivers a message they oppose. It's happened over and over and over. Why give them that target?
ReplyDeleteRisen said he had multiple NSA sources, so there's just no reason to focus on Tice (particularly given the reported circumstances surrounding his departure from the NSA, the veracity of which I do not know).
As for the legal issues re: martial law and wartime powers, I have seen several interesting comments on this blog about that issue and haven't really had a chance to look in depth into the legal issues underlying it. But one thing to note - the Administration admitted in the DoJ's 42-page NSA brief that we are not at "war" in the sense that Congress has declared one under the constitution, and they admit that an Authorization to use Military force is not a declaration of war. Nonetheless, Yoo's theory of the Omnipotent Article II President doesn't require a declaration of war - the President has unchecked authority, according to this theory, to do anything intended to protect the nation against an external threat with or without such a declaration.
Posner tries, quite ineffectively, to immunize his behavior by declaring: But, if a provision of fisa that allows electronic surveillance without a warrant for up to 15 days following a declaration of war is taken literally (and I am not opining on whether it should or shouldn't be; I am not offering any legal opinions), Hayden was supposed to wait at least until September 14 to begin warrantless surveillance
ReplyDeleteRight, he is offering no legal opinions; merely arguing why breaking the law is kinda a good idea.
I've been a Posner devotee, but one aspect of his political/judicial philosophy has always bothered me, and it is coming into full flower here: he is a consummate pragmatist. To the extent he adheres to any principle, including a libertarian one, he explicitly states that he does so purely for pragmatic, results-oriented reasons.
So, I presume that as he parses it, law-breaking in this instance carries such benefits that law-abiding should not be demanded. (And as if we really had to be put to the choice of law-abiding on the one hand, or security on the other.)
Instapundit linked to Posner yesterday, without comment. That also bothers me. This situation is revealing that many people whom I have respected will defend the indefensible if (a) it is Bush doing it, and (b) he does it in the name of the war on terror.
That essay simply floored me. A federal judge setting forth the virtues of not obeying the law. Next, the Vatican opens a Hooters.
Hypatia, other commenters are more or less willing to be identified as political supporters of those other than Bush. You are careful to appear to be part of this crusade on principle alone. Given your position in this “scandal”, I assume that you are part of the “We’re not at war” claque. Do you argue with the fact that the threat to our homeland is every bit as deadly as if we were at war with a foreign nation? If the threat is real, is this the time to be ragging the CIC about the need to dot every “i” ?
ReplyDeleteSurely it is not a good principle to attack the CIC in wartime absent any victims of his alleged wrongdoing? Can you not wait for the “victims” to be revealed (as I am sure will be the case, one way or another, or the Democrats would not have chosen this path). Yes, it is a good ploy to have a pure supporter, such as yourself, untainted by partisanship, but you have come out way too early to be credible. You should have waited for the victims.
notherbob2: I don't take too well to people who lecture me regarding what I "should" do in terms of taking legal and political positions. And even less so from one who purports to judge my credibility but who thinks abiding by an important piece of federal legislation, and the 4th Am, constitute mere "napkin-folding" etiquette. Anyone who has been surveilled pursuant to this illegal scheme is, ipso facto, a victim; their privacy interests have been violated. That is true even if we do not know their identities, and even if many, most, or all are guilty of terror-related activities, which I highly doubt (but it is irrelevant).
ReplyDeleteAs for the question of whether we are at war: we are, but in a wholly unconventional sense. The war against nation-states, such as Afghanistan and Iraq, is over except for trying to establish peaceful democracy. The evil regimes we sought to depose are deposed.
What remains is an international jihadist terror movement that is not new, which precedes 9/11 by decades, and which will be with us for decades to come. I will not acquiesce in the institutionalization of unchecked, secret Executive power for that duration. Why would you?
You know, the Rosenbergs were guilty. Their convictions were just. But it is true that there were improprieties in their trial, including ex parte communications between the federal prosecutors and the trial judge. That is a stain on what is otherwise a just verdict in the war against Cold-War era domestic espionage. It was wrong for the judge to have done that, and it is wrong for Bush to violate the law. That does not mean we should not have aggressively pursued and prosecuted Communist spies, and it does not mean we should not eavesdrop on domestic AQ supporters. But we should not sacrifice what makes us the nation we are in the process.
Posner's latest, btw, casts a whole new light on the title of one of his more thought-provoking books, (ahem) Overcoming Law.
ReplyDelete"...and even if many, most, or all are guilty of terror-related activities, which I highly doubt (but it is irrelevant)."
ReplyDeleteGot it.
When was the last time we impeached a federal judge?
ReplyDeleteWell-said, Hypatia.
ReplyDeleteWhen was the last time we impeached a federal judge?
ReplyDeleteAlcee Hastings (D-FL) now serving in the House, in the mid '80's IIRC.
FAS speculates that there may have been two versions of Baker's statement circulated at the July 2002 hearing.
ReplyDeleteRegarding the fact that there are two different versions of James A. Baker's testimony, I did some research and conducted an interview with Steven Aftergood of the Federation of American Scientists yesterday for NYC Indymedia. FAS has been going to hearings and collecting written copies of witness statements for a long time. When asked if circulating "two versions" of testimony at a hearing was common practice, Aftergood said, simply, "no." When asked if this had ever happened to FAS before, he again simply said "no."
His final comment read:
"The fact that the most controversial portions of the Baker testimony are missing from the published official record naturally invites suspicion. But there may be a benign explanation. We're trying to find out."
Aftergood further noted that the story was still developing and that new information might emerge soon.
the whole story is here:
http://nyc.indymedia.org/en/2006/01/63921.html
cheers to Glen for getting the ball rolling on this story
Re: item (3) -- I think that you are on to something with that. I have puzzled, as have many others, over the question of why not go to FISA rubberstamp retroactive warrants for the rotating 500 wiretaps. The conclusion that I came to was that that list of 'Al Qaeda agents' that phone into the USA is itself generated by a larger non-warranted listening system.
ReplyDeleteThe other thing that seems clear is that almost none of these 'Al Qaeda agents' that call Americans are doing much of anything in doing so. Nor are the Americans. There are few if any arrests as a result. I suspect that almost all of the calls are from someone who was involved with Hamas, or someone unaffiliated with anything who had previously looked up NYC landmarks on google. They are calling some distant cousin to wish them happy holidays or to congratulate them on graduating from university.
I base this on the absense of arrests and on the reported deluge of useless 'suspects' generated by NSA for the FBI following Sept. 11.
My second post at C&L reviews some miscellaneous items which I think are interesting. I'd be particularly interested in anyone's view of item (3) in that post. I mentioned once before here that there is an odd and clearly deliberate semantic formulation which the Administration uses when giving assurances that the eavesdropping program applies only to those associated with Al Qaeda and not to "innocent Americans."
ReplyDeleteGlenn -- it's funny you should mention this.
I think what Tice has been saying is what i s important-- not Tice himself.
I believe Tice has said, in effect:
The NSA "FISA by-pass without Judicial OVERSIGHT program" is a massive "hoover-like" computer program that listens to "innocent Americans" but only identifies the ones who are "threats."
Even if you buy this -- the Executive (branch) has supercided its Constitutional powers!!!
We're certainly use military force whenever we attack someone else.
ReplyDeleteWe're arguably at war then as well, though we are not at declared war unless Congress says so. Yoo's thinking on this, for example, is that a declared war is a total war--it means that Congress is declaring their cooperation with the President. But it's possible, I suppose, that this is actually an intermediary step between use of military force and declared war. Somalia would have been a use of military force. But Korea would have been a war.
Declared war is of course whenever Congress declares war.
Martial law I don't completely understand, though I think it would take a declared war. But declared war doesn't necessarily imply "martial law"--my understanding is that suspending a law at wartime is additional step the President has to take. But that explanation might be too simplistic.
Mr. Greenwald, I think you're overreacting here--Posner's point doesn't seem to be what you make it out to be. Here's what he says after the passage you quote:
"[Supposing the NSA program were vital to our defense] 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."
Posner does not in fact say we should ignore the law. Instead he simply says, rather reasonably I think, that if it were a good idea, then we would (and should) try harder to see if it is in fact legal or not. Furthermore, he holds out the real possibility that it might not be legal--in which case, we would then know what changes would need to be made in order to make it legal.
Sounds to me like a perfectly sensible attitude for a judge to hold. He isn't calling for deregard of the law at all. In fact, he's calling for more careful attention to the law!
Glenn, Just wanted to let you know that your Dewine bill research has been cited in Sunday's NYT editorial:
ReplyDelete"The rules needed to be changed. In 2002, a Republican senator — Mike DeWine of Ohio — introduced a bill that would have done just that, by lowering the standard for issuing a warrant from probable cause to "reasonable suspicion" for a "non-United States person." But the Justice Department opposed it, saying the change raised "both significant legal and practical issues" and may have been unconstitutional. Now, the president and Attorney General Alberto Gonzales are telling Americans that reasonable suspicion is a perfectly fine standard for spying on Americans as well as non-Americans — and they are the sole judges of what is reasonable.
So why oppose the DeWine bill? Perhaps because Mr. Bush had already secretly lowered the standard of proof — and dispensed with judges and warrants — for Americans and non-Americans alike, and did not want anyone to know."
Screw Judges who "legislate" from the bench.
ReplyDeleteYou know what I don't like Glenn?
Executives (PRESIDENTS) who legislate from the OVAL Office!!!
1:36
Yesterday, I argued that the position taken by the administration is based on circular reasoning: we are at war solely because the president has interpreted the AUMF to mean we are at war.
ReplyDeleteIn the Saturday NYT, there is a discussion of this point.
"The administration's second argument is that that use of force resolution approved by Congress also authorized the surveillance program. In a section of the white paper making that point, the Justice Department quoted from a Harvard Law Review article last year by two former Bush administration lawyers to support its argument. The article discussed a 2004 Supreme Court decision, and the quoted sentence said that "the clear inference is that the A.U.M.F." — the authorization to use military force — "authorizes what the laws of war permit."" http://tinyurl.com/dlgct
Here is the actual quote from the white paper:
Hamdi thus establishes the proposition that the AUMF “clearly and unmistakably” authorizes the President to take actions against al Qaeda and related organizations that amount to “fundamental incident[s] of waging war.” Hamdi, 542 U.S. at 519 (plurality opinion); see also id. at 587 (Thomas, J., dissenting). In other words, “[t]he clear inference is that the AUMF authorizes what the laws of war permit.” Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2092 (2005) (emphasis added). At 13.
And here is the quote from the Hamdi decision:
In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
The Justice department starts with the "narrow circumstances considered here", the detention of prisoners captured on the battlefield, which is obviously incident to the purpose of the AUMF, which permits the use of military force against al Quaeda and its allies. The argument move from this narrow set of acts to the conclusion that the AUMF "clearly and unmistakably" authorizes whatever the laws of war permit.
Apparently I should have argued that the argument is bootstrapping at best, and meretricious to people who do not trust the administration.
Glenn,
ReplyDeleteI fully concur that the idea of other, even more unbridled programs warrants further inquiries.
There is, however, another explanation for the "as described by the President" locution. Since they are treating the original NYT article and the leaks leading to it as a series of criminal acts, they can't/won't give it credence by referring to it. Plus, to them, the President's disclosures are, per se, authorized. So his statement was very carefully vetted, and he stayed on message, and everyone else pretends the program itself doesn't independently exist except "as described by the President". In some statements, the "terrorist surveillance program" takes on an almost abstract quality. Anyway, that is the innocent, and quite possibly naive explanation for what is a curious locution.
Had to jump in on Posner here. Having read (some) of his debates with Ronald Dworkin, I think it's important to note that, for him, there's no conflict between "good social policy" and "the law". For Posner, the law is good social policy. If it isn't good policy, then it's not really law at all. So, putting his opinion as "it's okay to break the law if it serves some policy goal" is, as I read him, simply inaccurate. The actual opinion is "if x serves a policy goal, then any 'law' which seems to prohibit it is not really a law". (And that is what makes him a legal pragmatist.)
ReplyDeleteSo, putting his opinion as "it's okay to break the law if it serves some policy goal" is, as I read him, simply inaccurate. The actual opinion is "if x serves a policy goal, then any 'law' which seems to prohibit it is not really a law". (And that is what makes him a legal pragmatist.)
ReplyDeleteWhat you claim is an inaccurate characterization of Posner's view is, in reality, what you then go on to describe as his view.
If the law says "It is a crime to do X" - and Posner thinks that X yields good results and therefore will interpret the law to allow X - that is precisely the same thing as saying that one can break the law as long as there are good policy results.
In both cases, one can do exactly that which the law prohibits as long as the action yields good results. Whether you want to describe that theory as (a) "disregarding the law when doing so yields good results" or (b) "interpreting the law to allow for actions which yield good results even if the actions are expressly prohibited by law" doesn't matter at all. That is just a meaningless semantic distinction. The substance of those two viewpoints is exactly identical.
Posner's essay was deliberately sent out so the Republican side can have some judicial "support" for Gonzales upcoming sales job to the Judiciary Committee.
ReplyDeleteYou can bet that the likes of Kyl, Graham and Sessions will be quoting it "liberally" in defense of the president's intentional lawbreaking.
"Conservative" federal judges are now providing cover for the Brownsuits on the Judiciary Committee. Every development of this scandal portends greater disaster.
Glenn: "Meaningless semantic distinction"? Hardly. Perhaps I expressed the view badly, but your interpretation goes right by Posner's point. The issue has nothing to do with playing semantic games; it has everything to do with what one counts as the law. Posner's view of what the law is has a very strong role for the judiciary, a role that can (and often does) allow the judiciary to trump what comes out of the legislative branch. In other words, just because the legislature passes it, doesn't make it law. What makes it law is a judge's not striking it down because it fails to serve a policy goal (or, alternately, a judge's endosring it because it serves some policy goal). That is the test for whether something is or is not law, according to Posner.
ReplyDeleteSo, he's not advocating "breaking the law". What he's saying is, approximately: "Look, if a judge has a policy goal that he thinks is violated by this piece of legislation, then that piece of legislation was never really law to begin with." (Perhaps it was the legislators' personal opinion or their non-binding suggestions to a judge.)
You seem to be thinking, naturally enough, that some act's passing a legislature is sufficient to make it law -- although it may later lose that status (if, for example, a judge rules that the law is unconstitutional). That's not what Posner says at all.
And this makes all the difference in the world to what his view amounts to vis-a-vis judges breaking the law. For Posner, as I understand him, judges can't break the law if they rule -- and are correct in ruling -- that a particular piece of legislation violates a policy goal. And the reason they can't break the law is because that piece of legislation was never law at all.
This is, of course, a very weird view of law. And it's one that I don't think Posner's ever adequately argued for. I think we can, and should, really question whether that's a good account of what law is. (For instance, it leaves judges a ridiculous amount of latitude in deciding which pieces of legislation to adopt and which to reject.) But, you seem to be running right by the issue Posner's latching on to, which is the difference between law (i.e., what a judge decides supports a particular policy or decides does not violate a particular policy) and pieces of legislation. The latter are not, in and of themselves, law.
So, then, your description here is a mistake: In both cases, one can do exactly that which the law prohibits as long as the action yields good results. Posner, I think, would deny this. If the action yields good policy results, then nothing that prohibited it was ever really law. So, then, this description is also not accurate: Whether you want to describe that theory as (a) "disregarding the law when doing so yields good results" or (b) "interpreting the law to allow for actions which yield good results even if the actions are expressly prohibited by law" doesn't matter at all. Neither is an accurate rendering of what Posner has defended. Again, he doesn't suggest judges should "disregard the law" because what they are disregarding was never really law. And judges are not "interpreting the law" to allow for anything, because that thing that passed through the legislature was never really law.
I'm wondering if you're not seeing exactly how radical Posner's legal philosophy really is. He's not someone like Hart, who thinks law can be instituted as a matter of social practice, or even Dworkin, who thinks law can be passed by legislatures and interpreted by judges. Posner is putting judges right at the top (much in the style of so-called "legal realism"), and legislatures can only make law insofar as judges let them.