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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, August 19, 2006

Ongoing misconceptions about Judge Taylor's opinion

(updated below)

There are still some substantial misconceptions -- and some just outright factual inaccuracies -- regarding Judge Taylor's opinion in the NSA case as well as arguments I and others have made as to why criticisms of her opinion are overblown and ultimately inconsequential. Orin Kerr responded to the post I wrote yesterday about the condescending and misinformed Post editorial criticisms of Judge Taylor. The exchange I had with Kerr in the Comments section to that post (along with other comments there, as well as plenty of posts from overnight pro-Bush legal experts in the blogosphere) highlighted some of the more important and pervasive misconceptions:

(1) There is a fundamental difference between (a) a judicial ruling which reaches the correct legal conclusions but explains and/or analyzes the issues poorly, and (b) a judicial decision which reaches the wrong legal conclusions by using poor legal reasoning, but nonetheless produces desirable political or practical results. The decision from Judge Taylor is in category (a), not category (b), and nobody (at least that I have heard) is arguing that the decision should be celebrated despite its having reached the wrong legal conclusions.

(2) Nobody is arguing that it is "irrelevant" whether a court does a good job analyzing the issues before it or in explaining its decision. It is always preferable for a judge to do a good job in that regard, and a better opinion with regard to several issues would have been preferable here. The point is that, in the scheme of things, the quality of the judge's opinion is entirely inconsequential both in terms of the ultimate outcome of this case (which will be decided by a higher court) and in terms of the systematic law-breaking powers this administration has seized.

(3) What I argued yesterday -- that the correctness of the court's legal conclusions matters much more than the quality of the opinion -- is not some exotic theory I invented in order to criticize the Post editorial or defend Judge Taylor's opinion. To the contrary, that is the core principle on which appellate review in our country is premised.

Appellate courts cannot and do not reverse judicial decisions because the opinion was written poorly or because the reasoning was unconvincing. If the Sixth Circuit ends up thinking that this was the worst and most erroneous written opinion ever, but nonetheless agrees with the conclusions the Judge reached but for completely different reasons (on standing, the Fourth Amendment, FISA, etc.), the District Court's decision will be affirmed, not reversed. A bad or poorly reasoned opinion is not grounds for reversal. Only a wrong conclusion constitutes such a ground.

The issue on this appeal -- on every appeal -- is: "Are the court's conclusions correct?," not "do we agree with what the judge said and did in reaching that conclusion?" In a garden-variety lawsuit, a District Court opinion might have a significant impact on persuading appellate judges, but with issues of this magnitude, the appellate court will review the issues from scratch, no matter the quality of the lower court opinion. And if the Sixth Circuit concludes that the NSA program is unconstitutional and in violation of FISA, Judge Taylor's decision will be affirmed regardless of how pretty or complete its analysis is.

(4) The army of legal "scholars" who have spent the last couple of days patronizingly dismissing the Judge's decision have pretty substantial argumentative holes and misunderstandings of their own. Particularly with regard to some of the law professors (and definitely the editorialists and pundits), I question their familiarity with how civil litigation actually works and is supposed to work (as opposed to how the profound, high-minded constitutional debates play out in academia and Congressional hearings).

Unlike a law professor who searches out "the literature" in order to find every argument on an issue about which they opine, courts -- especially District Court Judges -- decide issues on the facts and arguments before them, i.e., those that are raised by the parties. If a party does not raise a certain legal defense, then the judge is under no obligation to address it (and it is arguably improper if she does). If a party fails to dispute a particular fact, then it is improper for the court to do anything other than treat the fact as undisputed.

Although a judge might go searching for legal arguments to consider if, for instance, there is a pro se litigant as part of the case, where, as here, the DoJ is before the court arguing in favor of presidential powers, the District Court has every right to assume that the issues raised by the DoJ are the ones that need to be addressed, and no others.

The DoJ's Brief was filed under seal and was not even publicly available. But by all appearances, it seems that the DoJ made the choice to not take very seriously the substance of the constitutional and legal challenges to the NSA program in this case, because it basically took the position that the court had no right even to rule on those issues (because of the "state secrets" doctrine and because of standing issues, to which the DoJ devoted the bulk of its efforts -- i.e., basically telling the court it had no power to decide these constitutional and other legal issues). [See UPDATE below for confirmation of this point].

Thus, the Plaintiffs' Reply Brief (.pdf) noted that Defendants "have failed to offer any formal defense to their violation of the law." The DoJ's principal arguments in defense of its lawbreaking appear to be focused on claims that (a) the AUMF authorized the FISA violations and (b) the President's Article II powers cannot be restricted by Congress. See pp. 11-12. But the parts of the court's opinion rejecting both of those arguments are solid (if not stellar) and, in any event, the Supreme Court itself in Hamdan almost certainly precluded argument (a) and dealt a severe if not fatal blow to (b).

But those who have been attacking the court for failing to consider certain arguments actually have no idea whether the Justice Department made those arguments in a thorough way or whether they even raised the arguments at all. I have seen, for instance, oh-so-knowing expressions of shock that the court did not consider the so-called "border inspection exception" to the Fourth Amendment when ruling that the NSA program is unconstitutional. But those who are criticizing the court for failing to address that argument have no idea if the DoJ even raised it, thus revealing the very analytical incoherence of which they accuse Judge Taylor.

If, as appears to be the case, the DoJ chose not to dispute certain factual claims (such as the claim that the president's eavesdropping falls within the mandates of FISA), then the court was absolutely correct to treat that as an undisputed fact. And if the DoJ failed to raise certain legal issues thoroughly or even at all, then the fault lies with the DoJ, not the court, for the fact that those issues played no role in the ruling.

Anyone who is (a) attacking Judge Taylor for not considering particular arguments even though (b) they have no idea if the DoJ raised those arguments, is in no position to criticize anyone for poor legal reasoning.

(5) As a very general proposition (with lots of exceptions), opinions from District Court Judges are typically less thorough and comprehensive than decisions from appellate courts and certainly from the Supreme Court. In fact, District Court Judges often issue rulings orally, or in one-paragraph declarations that are completely conclusory and devoid of any reasoning.

This is due to many institutional factors. Unlike multiple-judge appellate panels that (a) have a relatively light work load that is attended to without much urgency and (b) have the benefit of large staffs composed of the best law clerks in the country, District Court Judges have overstuffed dockets filled with time-urgent criminal cases and typically two law clerks to help research and write their opinions, for which the Judge has sole responsibility.

Some District Judges who are nonetheless very smart simply do not write good judicial opinions. Some who are dumb or intellectually dishonest write beautiful written opinions that are just wrong. The quality of judicial opinions varies wildly in every court. The venerated Supreme Court has produced some transparently dishonest junk panned by the vast bulk of commentators, including a decision which arguably decided the 2000 presidential election.

The expectation that Judge Taylor was going to unveil some comprehensive new legal picture of these issues -- the type of legal document which, for instance, 14 different top-level law professors and government lawyers had to band together to produce without having to also manage a huge caseload -- is quite unrealistic. And, as noted, much of it may very well be the fault of the poor advocacy of the DoJ, not that anyone attacking Judge Taylor bothered to find that out first.

(6) While it is hard to dispute criticisms of Judge Taylor's opinion on the First and Fourth amendment issues, the opinion is perfectly competent, at times eloquent, on the state secrets issue, the standing issue, and most importantly, the Youngstown FISA violations. It is the state secrets and Youngstown/FISA issues which lay at the heart of the overarching political and legal disputes composing the NSA scandal, and on those issues, the court's decisions were not only correct, but solidly reasoned as well.

(7) Finally, if Judge Taylor had written the perfect legal opinion -- if she simply copied the words passed down from whoever is reputed to be the High Constitutional Scholar to whom we look for elevated legal reasoning -- what would that have actually changed as a practical matter? Nothing. Those who think the President has the right to violate FISA would still have attacked the decision as the mischief of out-of-control, terrorist-friendly, U.S.-hating liberal subversive judges (see, for instance, their attacks on Justices Stevens and Kennedy in the wake of Hamdan, or any other ruling the political results of which dislike), while those who believe the opposite would have hailed the decision.

Everyone has been debating these legal issues for the last 8 months. Everyone knows what the issues are, what the arguments are, what the relevant cases are, etc. Judge Taylor was not going to convince anyone of anything new even if she unleashed some sterling legal opinion. And no matter what she said, the Sixth Circuit -- and probably the Supreme Court after that -- is going to look at all of these issues anew, from scratch, without regard to what the District Court said about these matters.

Look at any judicial ruling of any significance -- Youngstown, Brown, Hamdan, Miranda, whatever one's favorite case is. Nobody knows, remembers, or cares what the District Court even ruled in those cases, let alone the quality of the reasoning, because it does not matter.

The significance of Judge Taylor's ruling lies in the act itself -- the re-affirmation of the principle that the President's conduct is subject to judicial review and is subordinate to the laws enacted by the American people through their Congress. This administration, while claiming it has substantial legal authority for its radical executive power theories, has desperately tried to avoid judicial review of the President's conduct at every turn --- with the abuse of the "state secrets" doctrine, the Specter bill, the denial of judicial review to detainees, the refusal to ask the FISA court for a ruling on the legality of its program.

The significance of Judge Taylor's ruling lay not in the quality of her judicial opinion (which everyone gets to feel really smart by demeaning), but instead it is the resounding rejection of the extremist and dangerous theory that the President, because of the "war" we are fighting, has the right to operate without constraints of any kind, including those imposed by the Constitution and Congressional statutes. On that key issue, the court's analysis was correct and even powerful. But by all means, let's get on with some more fun, self-glorifying attacks on the lack of scholarly depth of this single opinion from Judge Taylor. That is really the issue on which the fate of Republic depends.

UPDATE: The Government's Brief in support of its Motion to Dismiss or alternatively for Summary Judgment is available on the ACLU site, here. Marty Lederman has read it (unlike, it appears, those oh-so-thorough, smart and serious scholars criticizing Judge Taylor's decision), and Lederman confirms what I argued above. He writes (emphasis in original):

What's interesting is that although DOJ alluded to the Article II argument, it did not quite advance or support in any detail that argument -- or any other merits argument, for that matter -- because the theme of its brief was that the state secrets privilege makes it impossible to adjudicate such arguments in court.

The DoJ practically avoided making arguments on the merits of the constitutional and even statutory claims, opting instead to invoke secrecy doctrines (and standing objections) in lieu of advancing arguments that went to the merits of the claims in any meaningful way. It is hardly surprising -- and nobody has any ground to complain -- that the court did not address non-existent arguments or arguments which were made in only the most cursory manner. For that reason, "poor legal reasoning" and lack of scholarly thoroughness is evident at least as much in many of the criticisms of Judge Taylor as it is in the opinion she produced.

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