If You Use The Constitution, They Can't Complain

My views on the current illegality of the NSA warrantless survelliance program are well-established. I think the program needs to be squared with FISA and Congress. However, I've also gone on record as opposing the ruling by Judge Taylor that strikes the whole program down as unconstitutional. My main problems with the ruling are that it goes too far, not providing any legal remedy to square the program with the Constitution, and that the ruling is pure sloppy jurisprudence. Ann Althouse has written a brilliant op-ed in the New York Times (pause for irony), that makes a solid case against the ruling.

Her piece has gotten a lot of heat, from commenters at her own blog, and from commenters at The Volokh Conspiracy. Keep in mind, that she's not defending the DOJ's argument (I don't know her actual views on the program's legality-she never says), but rather criticizing the judge for not providing a clear constitutional response:

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations ... much of it incomplete and some of it simply incorrect.”

For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

The President isn't asserting that he's above the law, rather he's asserting that he has inherent authority in wartime to do these things. The argument is a serious one. It's totally wrong, and at war with the Constitution, but it deserves to be approached, and it must be correctly attacked. The problem is, the whole affair has the appearance of an unelected judge, who just happens to be a liberal, who just happens to have been appointed by a Democratic President, and confirmed by a Democratic Senate, overriding the decision of a popularly elected Republican President, in a time of war, based on her own opinion. It looks like she just hid the argument under the robe, and laid down the result she wanted. This is a parody of what right-wingers complain about with so-called "activist judges." It looks like she's a rogue judge trying to attack Bush.

These apppearances matter, because they undermine the trust that the Judiciary has. It only emboldens the partisans. It's not just about how it looks though. Judicial opinions need to be solid, in order to hold up on appeal, and establish good precedent. As critics of the program know, this is about more than just this program. The underlying argument needs to be struck down. This is about more than Bush. It seems like Taylor forgot that. Her point about "hereditary kings" is ironic, because judges themselves are just as suspectible to monarchical tendencies as the Executive, being that they're unelected.

The point to all this is the question of why we should defer to unelected judges in these matters, over the elected Executive. We do, because the Constitution says we do. We do because of judicial review, and airtight legal arguments, based on clear Constitutional support, and not what could be interpreted to be simple Bush-bashing. There is a clear case to be made that this program is illegal, and that Bush exceeded his authority. It needs to made clearly, to withstand scrutiny. That way, Bush supporters can't complain about activist judges, or anti-Bush Democrats, or East-Coast lawyers running the war, or election year stunts, or the usual pro-Bush blather over this. All that won't matter. If you use the Constitution, they can't complain.