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December 21, 2005

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But the resembelance is bizarre. Or so I'm told.

Lederman on Posner on FISA

I suppose everyone would get to Posner at WAPO and Lederman soon enough, but maybe this link will make it convenient.

Shorter Posner:If Bush is breaking the law, it's the darn law's fault.

Shorter Lederman:WTF? This is a Federal Judge?

In defense of Posner, I'm not sure it would be appropriate if he wrote an op-ed that specifically accused a sitting President of violating the law, he is, as you say, a federal judge (OTOH perhaps he shouldn't have written the editorial at all).

I would say that it's desperately inappropriate of him to write such an OpEd. His expertise and perceived authority is as a law professor and judge. The OpEd states that the program is good policy, and says not a blessed thing about its legality. He is giving the program the stamp of approval from a legal authority, without actualy opining on its legality. I consider this offensively deceptive: if he thinks it's legally permissible, he should say so; if he doesn't, he shouldn't be out there saying, "I, a law professor and judge, think it's a good idea."

Of course, it's the same thing he did on Bush v. Gore, so I don't know why I'd be surprised.

my favorite Posner line:

    Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

America: it's the government's country; you just live here.

"America: it's the government's country; you just live here."

So far as I can see, this simply doesn't logically follow, unless we assume that either a) all claims that the government is "entitled" to something means the government is saying it is entitled to everything; or b) the government can never be said to be legitimately entitled to anything.

(Whether the government in this case is entitled to that particular something, or not, is irrelevant to whether Cleek's half-syllogism follows, of course.)

Am I missing something?

For instance, by law, the governments of the U.S. are legally entitled to duly owed tax money. The federal government is entitled to payments, as instituted by statute, for certain uses of federal land. And so on. Is there something strange or objectionable about this?

Could you clarify the nature of your complaint, please, cleek?

As usual Hilzoy great post. It's important to keep the fight going against this administration.

Undermining the administration is the important thing. The fact that it makes it easier for terrorists to attack and kill Americans is unfortuante, but will most certainly allow the Democrats to claim Bush was ineffective at providing security to Americans and ensure a Democratic president in 2008.

Kudos to you.


I'm not cleek, but the complaint is that Posner states the entitlement without legal justification, and no such justification seems to exist. If he thinks the government is entitled to anything without a basis in law, one wonders where he draws any line.

I'm not cleek, but the complaint is that Posner states the entitlement without legal justification, and no such justification seems to exist.

Seemed clear to me, too.

As usual Hilzoy great post. It's important to keep the fight going against this administration.

Undermining the administration is the important thing. The fact that it makes it easier for terrorists to attack and kill Americans is unfortuante, but will most certainly allow the Democrats to claim Bush was ineffective at providing security to Americans and ensure a Democratic president in 2008.

Kudos to you.

Welcome once more, creek/credence/zzz (or whatever it is you're calling yourself today - ah, the nom du jour is crcb.) I'm sure your trolling on this thread will be inane, vindictive and completely slanderous as per usual.

:-)

crcb: "Undermining the administration is the important thing. The fact that it makes it easier for terrorists to attack and kill Americans is unfortuante, but will most certainly allow the Democrats to claim Bush was ineffective at providing security to Americans and ensure a Democratic president in 2008."

Support this statement, please.

"Shorter Posner:If Bush is breaking the law, it's the darn law's fault.

Shorter Lederman:WTF? This is a Federal Judge?"

Posted by: bob mcmanus

University of Chicago, Law and Economics. Does anything further need to be said?

Support this statement, please.

Conversely, DNFTT

LB:(re: cleek - "America: it's the government's country; you just live here") "If he thinks the government is entitled to anything without a basis in law, one wonders where he draws any line."

Check your sarcasm meter, LB. Might be on the fritz.

Sorry, what the heck does "DNFTT" mean.

john miller: DNFTT=Do Not Feed The Troll ;-)

DNFTT = do not feed the trolls.

Thank you. Even at my advanced age I find myself learning things every day.

By the way, john miller, wrt internet/blogosphere acronyms such as this one, google is your friend.

And while a lot of them are just repeating things they have heard elsewhere, I find it hard to understand how the people who come up with these arguments in the first place are operating in good faith.

As if operating in good faith has anything to do with the arguments justifying this bad behavior. And just to annoy Slarti, the modus operandi here is hero worship of whatever Dear Leader does.

The Fourth Amendment and warrants -- such pre 9/11 thinking.

Could you clarify the nature of your complaint, please, cleek?

it is unfortunate that little bits of "relevant data" might be floating around in the conversations of innocent people. but nobody is entitled to any of it unless the relevant parties want to share it, or a judge provides a warrant.

a government that claims it is entitled to sift through every conversation its citizens have, just in case, is totalitarian*.

* : pedants take careful note of what the inflammatory adjective describes.

xanax-

My sarcasm meter is working -- 'he' in the sentence you quoted was Posner, not cleek. I agree with cleek about Posner.

LB - cool. hate to imagine you going into the "holidays" w/out a finely-tuned and fully-functional sarcasm meter. ;)

PS: I too agree with cleek about Posner.

Quoth Posner: "[FISA] makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities."

Your honor, it's not a bug, it's a feature. At least, the Founding Fathers thought that this was a feature...

To go on-topic for a sec, it seems to me that both the Carter and Clinton EO's were essentially implementation of Congress' mandates in FISA: Carter's of the statute itself, Clinton's of the 1994 amendment.

(With an ordinary regulatory statute, you'd have a rulemaking, but since NSA isn't an ordinary agency, it's done through EO).

Correct me if I'm wrong.

"Support this statement, please."

Alternatively, the basic lesson of online communication learned decades ago is: Don't feed the trolls.

Thanks.

"University of Chicago, Law and Economics. Does anything further need to be said?"

Well, yes. Either one is familiar with the vast body of Judge Posner's work, whatever one may think of it in whole or part, or one thinks that it's news to point his perfectly well-known affiliation.

This is a much smaller scale version of announcing that you've discovered that G. W. Bush works at 1600 Pennsylvania Ave. Aha!

Commentonary on people from people who indicate they've never heard of the person they're talking about, despite said person being extremely prominent and prolific, quite possibly is likely to be worth what the commentary of anyone who knows nothing about their subject is.

It's ever so much more useful to hear from people who are familiar with the subject they are discussing, perhaps. This may be an overly-harsh attitude of mine, to be sure. And, honestly, nothing personal intended.

"By the way, john miller, wrt internet/blogosphere acronyms such as this one, google is your friend."

With almost any question of fact or meaning, Google is our friend. People used to yell at me for being mean when I pointed that out. (Though I am, of course, mean, mean, mean.)

Gary,

"This is a much smaller scale version of announcing that you've discovered that G. W. Bush works at 1600 Pennsylvania Ave."

Not really. U Chicago Law School had (when I was in law school in the mid-1980's) a reputation for being ground zero of the "law and economics" movement, which IIRC viewed the primary purpose of law as making economic transactions work smoother, rather than any notion of justice, following the founders' understanding, following established precedent or other overarching theories. Posner, while active on the U Chicago faculty prior to being appointed to the 7th Circuit, was not the primary exponent of this movement; Frank Easterbrook was.

A fairer comparison would be noting G.W. Bush is a Republican as if that ended all discussion. It shows lazy thinking, but not as much as your response suggests.

OT: Judge Posner was a guest lecturer for a day at my first year Property class, about Nuisance. He and his L&E ideology lost me forever when he told us that, yes, you would have a viable cause of action against a neighbor thought to be engaging in witchcraft,* provided that fear of witchcraft brought down property values in the neighborhood.

His opinions are always fun to read, and he gives great lines to quote in a brief.


* I don't mean of the modern Wicca flavor, but of the Salem flying-on-a-broomstick-to-sign-the-devil's-book variety. He understood my question.

Guess that throws the faculty blog into disrepute.

So much for the "anti-statist" right.

I posted this on last night's thread, but I will post it here again:

Hilzoy --

You didn't excerpt the first part of that quote from the FISA court review. Here's a wider quote:

[...] we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution.

[...] the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.

The target is BOTH an agent of a foreign power and a US person. But BECAUSE he is an agent of a foreign power, the restrictions imposed by FISA are not required by FISA or the Constitution.

The language you quote doesn't say that the government was entitled to proceed without a warrant on that basis, it says that the FISA court should have granted a warrant on that basis. No one's saying you can't tap an American's phone with a warrant, FISA and the Fourth Amendment just prohibit doing it without a warrant.

the restrictions imposed by FISA are not required by FISA or the Constitution

Don't you mean "the restrictions imposed by the FISA court"? And aren't those restrictions the guidelines that were at issue in this case: the extent to which law enforcement people and foreign intelligence people within the Justice Department had to be kept separate from eachother? And don't those restrictions, struck down in 2002, have nothing whatever to do with the discussion at hand?

Just trying to catch up.

Gary: Our goverment has powers; our citizens have rights.

Rights create entitlements. See, eg, the bill of rights.

Powers enable the use of force for non-cooperation. See, eg, criminal penalties found in the US tax code.

For a lawyer, especially one as qualified as Judge Posner, to say that the government is "entitled" to anything is beyond wrong; its either stupid or intentionally deceitful.

Given the context, I go with intentionally deceitful. Posner is clearly trying to implicate, without saying directly, that the executive has the inherent power to wiretap, which power is implemented through FISA. This is simply wrong, as the 4th amendment gives citizens the right not to be wiretapped except in accordance with laws duly adopted by the legislature. And since FISA explicitly states that it provides the exclusive means for the federal government to engage in the kind of conduct that we're talking about, its pretty much indisputable that the entitlement argument is a piece of sh*t.

"U Chicago Law School had (when I was in law school in the mid-1980's) a reputation for being ground zero of the "law and economics" movement,"

Well, of course. Part of my point. This is little-known? (If it were, then the comment I was responding to would, of course, make no sense.)

Am I wrong in thinking that the guy who wrote "Public Intellectuals," and who comes out with a book every other month (I exaggerate faintly), and whose op-eds constantly appear, and whose journal/magazine pieces have been everywhere for years, is not one of the Five Most Famous Judge/Law Professors In The Land? If so, I'd love to see the list that beats him (I can name plenty of famous working judges; I can name plenty of famous working law professors; how many famous combos are there?).

Sorry, that was a bit unclear; I know he's retired as a judge, of course.

On the other hand, this is too trivial a point -- about Posner's fame level -- to be worth defending or arguing about. So no more from me on it.

For a lawyer, especially one as qualified as Judge Posner, to say that the government is "entitled" to anything is beyond wrong; its either stupid or intentionally deceitful.

Not only deceitful, but it is the sneaky unsupported twist upon which Posner's bases his argument.


Sorry, that was a bit unclear; I know he's retired as a judge, of course.

Which, being quite false, perhaps undercuts your argument that everyone already knows all the essential facts worth knowing about Posner.

People might want to click on the 'Lederman on Posner' link above, read the original column, and Marty's comments, and the blog-reader comments.

I always click through to the originals to check what people are saying, at least if I care enough about the subject to want to have an informed opinion. I'm just that kind of person. But even if I weren't that kind of person, I would click through every link on arguments on this topic right now, because there's a lot of misinformation flyng around.

Here's a second, equally effective, and much less time-consuming technique: click through arguments until one of them reveals itself to be deceptive rubbish, at which point you can disregard anything coming from that source ever, ever again (except for mockery). You can also disregard anyone who ever relies on these sources, and anyone who ever relies on anyone who every relies on these sources, etc. This technique sounds a bit strict, but, as there are approximately 10 trillion sources of information out there, it's really quite efficient.

"...click through arguments until one of them reveals itself to be deceptive rubbish, at which point you can disregard anything coming from that source ever, ever again...."

This works only if it's a safe assumption that people's credibility should be judged for the rest of their lives because of a single statement.

I know I'd never pass such a test. Hell, I'd likely be failed weekly.

Yes, I know A-, The Editors, aren't being Quite Entirely Serious. But I really do wish more people worked the way Hilzoy described -- god knows it's been the way I've been all my life, and the primary lesson on the topic life has only endlessly retaught me more emphatically, is to be stricter and stricter and stricter, about checking things out for one's self. Always notch it up, never down.

It's not so efficient, but it tends to lead to the least wrong results.

You've been subject to this standard for years, Gary, and you're still not on the blacklist. And, while I may miss out on the odd diamond-in-the-stupid, you would be amazed how little Powerline-level wankery I am forced to endure.

Come on now, Editors, admit it - you like the wankery. You get on that leather 'protective' suit, and wade right in there, whip lashing :)

Uhh, hilzoy, sorry if I kinda hijacked the thread. It was a good post.

"Either one is familiar with the vast body of Judge Posner's work, whatever one may think of it in whole or part" ...GF

I know who he is, and have read some of his work, but if I am to be familiar with his vast body, I better get busy. Skinny little guy, if I remember. Not that there is anything wrong...

Off-Topic (but nevertheless of interest to folks here, IMHO), Fourth Circuit refuses to transfer Padilla out of military custody.

Okay, I don't engage in "deceptive rubbish."

Just rubbish. (I like the word "rubbish," don't you? Rubbish. Rubbish. Rubbish.)

"...you would be amazed how little Powerline-level wankery I am forced to endure...."

And yet they give meaning to your sad, yet plural, life.

(I'm working under the assumption that The Editors know I wuv them, too.)

But I have to go, I'm in the middle of concluding a post that will BLOW THE ROOF OFF THE WHITE HOUSE!!!!!!!

Nah. But it will mock.

Caught me, Bob. Revise to: "Either one is familiar with the existence of the vast body of...."

Skinny. But vast.

Ugh:

The Padilla thing seems to reflect the judges smacking the Justice Dept in the limited way that they are able. I wonder if the USSC would still take the case, now that it has this weird twist to it; i.e., the Justice Dept.'s tactic may have worked no matter what the Fourth Circuit says. If the Supremes decline review, then there is not much more to this, and Padilla would presumably be sent off to Florida.

dmbeaster -

I don't think Padilla gets shipped off to Florida unless the Supreme Court agrees that the petition is moot, vacates the 4th circuit opinion, and agrees to the government's motion to transfer Padilla (none of which I think they are in position to do).

Even if they deny cert, the 4th circuit opinion stands and we return to the district court to determine whether the president properly classified Padilla as an enemy combatant (unless the government can convince that judge to dismiss and transfer to Florida).

Plus the order (pdf can be found linked to here) notes news reports that one of the reasons for the government's actions is news reports that they took their decision because of worries about disclosure of how they got their information about Padilla (torture or warrantless wiretaps anyone?).

In any event, what little commentary I've seen seems surprised at this turn of events.

"Which, being quite false, perhaps undercuts your argument that everyone already knows all the essential facts worth knowing about Posner."

I said I wouldn't say more about this, but since I'm accused of saying something "quite false," I'll point out that I didn't mean that Judge Posner wasn't still sitting on the Seventh Circuit, hearing cases and writing opinions. I was referring to his having retired as chief judge of the circuit. (I'd have to Google to see if he is emeritus or not, and in this case I won't.)

And I said nothing about "everyone already knows all the essential facts worth knowing about Posner." You're just making that up. I asserted that he was famous, and that's all. But I'm definitely sorry I raised the molehill.

Gary: your last is pretty bad. Earlier, you wrote: "I know he's retired as a judge, of course."

That's nowhere close to saying that he's no longer Chief Judge of the Circuit.

btw, the Seventh Circuit's website here does not designate him sitting as emeritus.

i'd could have sworn i read, just recently, somebody on this very blog saying that posters and commenters should be more willing to admit mistakes. hmmm.

"That's nowhere close to saying that he's no longer Chief Judge of the Circuit."

Apparently you never words out. I'm just different.

And, incidentally, if you've never seen me say on this blog "whoops, I was wrong, sorry," or "You're right; I got that wrong; sorry," or some other variant, a number of times, you've not been paying attention (I'd say there would be no reason you should be, save for your implictly saying that I haven't done so).

geez, gary. talking about mountains out of molehills. i'm not implicitly saying you've never apologized; i was implicitly saying that an admission of error in this case might be appropriate.

however, since reading comprehension seems to be the point of the day, you'll have to explain how:

"I know he's retired as a judge, of course." 3:05 pm

leads to

"I'll point out that I didn't mean that Judge Posner wasn't still sitting on the Seventh Circuit, hearing cases and writing opinions. I was referring to his having retired as chief judge of the circuit" 7:36 pm

which then leads to

"Apparently you never [sic] [leave] words out. I'm just different." 9:15 pm

as opposed to leading to something along the lines of "oops. Posted without googling."

because, frankly, I find it far more believable that you thought, without checking, that he was retired than it is that you thought, without checking, that he was no longer Chief Judge of the 7th Circuit and yet wrote "retired as a judge".

it's odd. Gary, you have obtained, in my view, a certain reputation for ruthlessness for tolerating sloppiness from others, both in posting factual errors and in writing poorly. Now that you've been forced to confess that you're guilty either of being wrong on a minor factual error or of writing poorly, you choose the latter. Your own history of precise writing suggests that you made a simple factual mistake yet somehow you expect me to believe that you were correct but mis-typed.

what's odd is that by making such a mountain out of this utterly tiny molehill is that you, formerly one of the most credible writers on this blog, have diminished yourself in my eyes by refusing to admit a mistake.

i'm saddened.

I'm tired of lawyers.

And yet they give meaning to your sad, yet plural, life.

Well, I don't know about any of that, but their tragicomic antics do create a temporary distraction from the gnawing void that haunts my arbitrary and absurd existence. And from the fact that the Patriots are only 9-5.

you'll have to explain how:

"I know he's retired as a judge, of course." 3:05 pm

leads to

"I'll point out that I didn't mean that Judge Posner wasn't still sitting on the Seventh Circuit, hearing cases and writing opinions. I was referring to his having retired as chief judge of the circuit" 7:36 pm

which then leads to

"Apparently you never [sic] [leave] words out. I'm just different." 9:15 pm

Okay, you understood my last comment, but you didn't understand it.

Slowly: if one intends to type "I know he's retired as Chief Judge, of course," but is hasty and careless and doesn't proof, one can wind up with "chief" falling out, and "a" replacing it, and missing capping.

You have absolutely no idea how many typos come out of my fingers every sentence I type, and how many homophones accidentally come out, or sheer wrong words, or words fall out, due to my brain telling my fingers to type one thing, and my fingers typing something else. And the older I get, the more I do that. Lots. Lots and lots. Lots and lots and lots and lots and lots. Constantly.

And the tireder I get, the more I do that. (Did you happen to notice my comments yesterday about feeling "woozy and spacy, and a bit ill," perchance? [still subpar today, incidentally].)

This happens with every sentence I write. I type, in case you hadn't figured out how I'm kinda prolific, extremely quickly. And that's the first draft results I get. Then, if I'm not too impatient or tired or cranky or excited, I run through and correct everything so it's vaguely understandable.

But if you prefer to believe I'm just lying about this, be my guest.

Maybe I should put up a couple of comments that are completely unedited. But, no. That would be wrong.

I just said on Unfogged yesterday that I'd been erring too much of late towards speed and errors, so as to get more written and more points made, and so I should pull back in the other direction a bit and start slowing down a bit and proofing more. But I've not done that enough. I probably just wrote that to cover my tracks, though, and you can't find lots of other examples of words falling out in endless comments I've posted here, or endless other careless solecisms, typos, awkward phrasings, and unclear sentences. (Usually I wince, and assume people will figure out what's wrong and what I meant, and it's not worth posting another comment about it unless it's absolutely crucial, or someone is confused.)

The three e-mails I had to send this afternoon to correct semi-gibberish I'd not proofed out because I was frantically rushing were probably all part of my cover-up, too. So was trying to correct what I said here.

I'm saddened you are sad, and I know that, of all people, I have no grounds for complaint in having someone trying to pin me down, so I make no complaint. So I hope you find your happy feet again soon. I hope I do, too.

GF: "I hope you find your happy feet again soon. I hope I do, too."

Gee, Gary. I hope you do too. Really, I do.

I mean, "happy feet!" Who doesn't want that/those?

I know I do.

I am going to have a New Years Resolution to not look at blog comment sections, because although it is interesting it takes too much time. My company has been sold to another that might have tighter a$$h0les, so that may influence my decision somewhat, plus I need to get more sleep.

But it is fascinating to have a glimpse into other people's point of view, especially when they are smart and disagree with me. That way nobody's feelings are hurt very much by folks you have to see every day. Some of us rage and rant, or try to offer considered observations, or make jokes.

Now, I generally don't think that there will be some Voltaire on the internets, although certainly there are plenty of Kerouacs. But there are some people that I think are real treasures.

Now, all the posters on ObWi are smart, and I originally poked around here because I thought Edward_ was an interesting guy who had a different take from me. But there is one guy who lives for the life of the mind, accepts the fact that this is not a very profitable decision, and accepts this without bitterness about rich people.

Gary Farber has chastised me at times when I deserved it, and had fun with me when I am kidding. He really is a treasure on the internet, thinks clearly most of the time, is kind even when he is pedantic, is way more well informed in a general way and in specifics because he researches before he comments. He is a worthy person to check your assumptions against, and whenever he chastises me, I feel honored that such a person takes me seriously.

Now Gary has taken a vow of poverty to live the life of the mind, like a degenerate monk or some sort of wacky Ghandi Bhuddist. My impression is that the Buddhist folks, or even monk supporters take the attitude that, well I am so into day=to-day life that I cannot think so hard about everything, I might as well give a little tribute to someone who will serve as a stand-in for me.

I personally will do this and toss in a 20 to a misguided pervert who wastes his time thinking about things that dont give him any monetary rewards. From what I can tell there are quite a few lawyers that comment here and can afford to click on his PayPal button. Please do so, and wwish Gary a Happy Solstice or whatever those SciFiEntologists believe in.

Google Is Our Friend.

Yeah. I get it. But I was under the impression that some of the denizens of ObWi were also "Our Friends," and it was not totally out of line to ask them to explain some cryptic arcanum without being chided for it.

(Pardon my crankiness, but I've just realized I'm almost 15 years older than Gary Farber, and I somehow I feel even more exhausted than usual.)

Francis: what's odd is that by making such a mountain out of this utterly tiny molehill is that you, formerly one of the most credible writers on this blog, have diminished yourself in my eyes by refusing to admit a mistake.

It's not at all odd: it's typical Gary. We once went through an argument that exploded across two threads and ate up I-don't-know-how-many-comments because Gary did not want to admit he'd asked a leading question. That was the point when I decided that it was better just never, ever, to respond to his comments.

That was the point when I decided that it was better just never, ever, to respond to his comments.

Because of my character as well as Gary's, I hasten to add: after all, that long argument about whether or not Gary had asked a leading question would never have happened if, in the face of Gary's stubborn denial that the leading question he'd asked wasn't anything of the kind, I'd just shrugged and let it go: what did it matter if Gary couldn't bring himself to acknowledge it? But Gary's insistence on being right even when he's flat wrong doesn't sit well with me, and it's easier for me to just not get into those kind of endless discussions in the first place.


GF, no one on earth (OK, outside the courthouse) cares whether some judge or other is the chief of any US court other than the Sup. Ct. Cases are nearly always randomly assigned, and judges are very rarely deferential to their chief in matters having to do with the cases that come before them. It's an administrative position only. Well, 95%.

Now if he had taken senior status, that would be significant.

this will be my last comment on the matter:

my wife, who is a LA County public defender, brings home stories told by her clients which sound more believable.

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