Obsidian Wings

Not A Good Theory of Judging

--Sebastian

I'm not going to try to do an independent analysis of the recent NSA ruling when it has been done so well elsewhere  (see especially Volokh and Althouse).  In the fray, I noticed a post by a prominent legal scholar (and blogger) Jack Balkin which exhibits many of the characteristic attitudes toward the judiciary which I find troubling. 

The secret advantages of Judge Taylor's opinion in ACLU v. NSA

Marty and I have noted the problems with Judge Taylor's opinion, even though we both agree that it reaches the right result. Why did Judge Taylor rush out such a sloppy opinion in the way she did? Some people have speculated that it was to hog all the glory for herself. But that's not the only possible reason. Judge Taylor has been on the bench for many years, and, presumably, she knows how the appellate process works. In this post, I try to show that strategically, at least, Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal.

Judge Taylor knew that most of other lawsuits challenging the NSA program were being consolidated in California, and hers might be as well. She might have wanted to ensure that the 6th Circuit got to pass on the NSA case in addition to the 9th Circuit. The more circuit courts that passed on the case, the greater the chance that one of them would hold the way she thought the case should come out, and present a favorable record on appeal to the Supreme Court. But more important, she might have noted that the Supreme Court regularly reverses the 9th Circuit, and that the judges on the 6th Circuit might do a better job with the case, or, at the very least, their work would be viewed with less skepticism by the Justices.

Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal.

Judge Taylor's opinion did both of these things in her opinion. First, she raised as many claims on the merits as she could think of, even if her analysis skated over the surface and didn't provide the best arguments for both sides. This puts the Justice Department in an interesting position. The DOJ takes the view that courts can't possibly resolve the legal issues on the merits because state secrets are involved. But because of Judge Taylor's scattershot approach, it will have to make arguments on appeal showing why her arguments are wrong on each issue; that will undercut its claim that the legal issues can't be disposed of without revealing privileged information.

...

But here's where Judge Taylor's rather innovative First Amendment argument comes into play. To win on standing, plaintiffs need not win on the merits; they need only show that they raise colorable claims of rights violations that injure legally protected interests that courts can remedy. The first amendment argument-- that the secret program chills protected expression and association-- is not a very good argument in its current form, but it is a colorable argument. It will take some work to defeat it. And that fact helps secure the plaintiffs' standing. By making what is not a particularly good argument about the First Amendment, Judge Taylor enabled the 6th circuit to address what is really the best argument-- that the NSA program violates Congressional law, in particular FISA.

Judge Taylor's opinion isn't really very good as a discussion of the merits. But district court judges know that this isn't the only thing that matters....

This line of argument is very troubling.  I would be much happier to hear that Taylor's decision was the result of incompetence or some sort of righteous anger at the NSA program.  It certainly looks that way to me (Not because of the final conclusion which is fairly debatable, but because of the shoddy legal reasoning to get there). 

Ann Althouse exactly captured my thinking when she wrote:

I'm not talking about the normal way judges write result-oriented decisions, which is to layer in the scholarly and neutral-looking verbiage in the hope that most people will swallow it and the critics will seems like sore losers. This opinion -- beginning midway through the text -- does not even look like a rough draft. It seems as if the judge ran out of time and handed in something that was less than an outline. Much less.

That result-oriented decisions she describes are bad enough, what Balkin is suggesting is far worse than that. 

Appellate Courts aren't supposed to review a trial court's finding on purely factual issues.  Balkin is suggesting that Judge Taylor is attempting to use that to shape the appellate issues even though the legal reasoning is behind the decision is awful.  He is also suggesting that Judge Taylor made findings on more factual issues than she needed to for that same reason. 

He admits, on multiple posts, that the legal reasoning is poor, but thinks that Judge Taylor may have been attempting to secure the desired outcome by manipulating the record in other ways--and he seems to think this a good thing (the title of his post is "The secret advantages of Judge Taylor's opinion in ACLU vs. NSA").

That strategy (bad legal reasoning paired with nearly unreviewable manipulation of fact-finding to achieve a desired outcome) is exactly the opposite of how we should want judges to perform their duties.  We want neutral fact-finding and solidly logical reasoning.  Ironically, if Balkin is correct, Taylor is doing exactly what we fear the Administration is doing in the torture area--throwing up silly legal arguments and manipulating knowledge of unreviewable facts.

Balkin is an excellent analyst, but this time I hope my initial analysis of the opinion was more accurate than his. 

If Not Now, When?

by Charles

There are three facts about our situation in Iraq that should not mesh

• It's been 38 months since the end of major combat operations.
• The security situation in Iraq still sucks.
• Donald Rumsfeld is still the Defense Secretary.

Instead of Powell-like overwhelming force, we get Rumsfeld-like underwhelming manpower, with just enough forces to lose this endeavor.  So it went right after Saddam was removed, and so it is right now with the sectarian violence in Baghdad.  Max Boot:

To restore order in the capital, I suggested adding at least 35,000 U.S. troops — in line with Lt. Gen. Ricardo Sanchez's comment in 2004 that he needed two divisions to control Baghdad. But that's not what Bush is sending. To bolster the 9,000 U.S. troops already in the capital, he is sending another brigade from northern Iraq, for a total of 13,000 U.S. troops, or less than one division. There will be an equal number of Iraqi troops — along with 35,000 Iraqi police officers, who are so sectarian and corrupt that they are more part of the problem than the solution.

If Bush thinks that a force this size can secure a city of more than 6 million people, he's not listening to the best professional military advice. An additional problem is that moving troops around Iraq, instead of sending extra units, may improve the situation in one spot but worsen the environment elsewhere. As a "senior American military official" in Iraq told McClatchy News Service, "You can't do clear-and-hold with the force structure we have."

Rumsfeld should've been gone after Bush was reelected.  Why Bush or anyone else would think that his job performance would improve over time is a mystery.  The Iraqi ambassodor to the U.S. has a worthwhile read, offering some worthwhile suggestions.  We've been muddling along, adapting too slowly, not succeeding at bringing a stable security environment to Iraq.  If ever there's a time to push harder, smarter and faster, it's now.  The first step is to bring in some new thinking.  So far, Bush has not exercised sufficient judgment to do so.  He's going to regret it, as will the rest of the Republican Party.  (By the way, I was going to write this on Friday, before Lieberman made his call.)

Getting In Touch With My Inner Viking

by hilzoy

I'm off to the land of my forbears, about which Montesquieu said: "the frightful countries of the north continue always inhabited, from their being almost uninhabitable." (The point being that desirable locations are fought over and thereby depopulated, while "frightful" countries are left alone.) Curiously, since I was 10, I have only spent time in Sweden during the winter, when it is very very cold and very very dark. This time, I'm going pretty far north, so I should be able to catch the end of a near-arctic summer: quite new to me.

I never really believe that internet access exists abroad, so I don't know whether I'll be posting during the next ten days. However, I leave you with three articles. The first tells us that Bush has decided to adopt one of the worst ideas of pre-Revolutionary France: tax farmers!

"Within two weeks, the I.R.S. will turn over data on 12,500 taxpayers — each of whom owes $25,000 or less in back taxes — to three collection agencies. Larger debtors will continue to be pursued by I.R.S. officers.

The move, an initiative of the Bush administration, represents the first step in a broader plan to outsource the collection of smaller tax debts to private companies over time. Although I.R.S. officials acknowledge that this will be much more expensive than doing it internally, they say that Congress has forced their hand by refusing to let them hire more revenue officers, who could pull in a lot of easy-to-collect money.

The private debt collection program is expected to bring in $1.4 billion over 10 years, with the collection agencies keeping about $330 million of that, or 22 to 24 cents on the dollar.

By hiring more revenue officers, the I.R.S. could collect more than $9 billion each year and spend only $296 million — or about three cents on the dollar — to do so, Charles O. Rossotti, the computer systems entrepreneur who was commissioner from 1997 to 2002, told Congress four years ago."

It's not just more expensive; there's also a greater potential for abuse, and -- a sure sign that we are indeed replicating the tax system of the Ancien Regime -- the private tax collecters seem to be pretty shady:

"One of the three companies selected by the I.R.S. is a law firm in Austin, Tex., where a former partner, Juan Peña, admitted in 2002 that he paid bribes to win a collection contract from the city of San Antonio. He went to jail for the crime."

Great.

The second is an Washington Post piece by Daniel Byman and Kenneth "Why We Should Invade Iraq" Pollack, which lays out most of the dreadful possible consequences of our invasion of Iraq. Personally, I don't think they pay enough attention to the ways in which the war in Iraq has enhanced both Iran's influence and its freedom of action -- I think a pretty serious case could be made that absent the invasion of Iraq (and absent comments about invading Iran from members of the administration), Iran would not now be looking quite likely to get nuclear weapons. Still, it's a pretty depressing read.

The third is an article that CharleyCarp flagged in comments, about another set of Guantanamo prisoners who have been in Guantanamo for years, despite, according to the Post, next to no evidence of any actual wrongdoing. Examples:

"One detainee was judged a threat in part because he was a karate expert and had taught martial arts to Bosnian orphans, tribunal records show. He was also classified as potentially dangerous because he was familiar with computers.

Another detainee was flagged because he had performed mandatory service in the Algerian army more than a decade ago, as a cook.

Boudella was accused by the U.S. military of joining bin Laden and Taliban fighters at Tora Bora, Afghanistan, the mountain hideout where the al-Qaeda leadership escaped from U.S. forces in December 2001. In fact, at the time, Boudella was locked up thousands of miles away in Sarajevo, after his arrest in the later-discredited embassy plot."

Read it and weep. For my part, I'll be somewhere above the Atlantic.

The Third Principle of Sentient Life

by Andrew

"You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall.
We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand to post."

Colonel Nathan R. Jessup, A Few Good Men

Lieutenant General Mattis certainly doesn't need me to defend him. However, given commentary that suggests soldiers are trained to enjoy shooting people, that armies promote sociopathy, etc., I think perhaps a little time spent in explain what it is armies do would be worthwhile.

Above is probably the most famous line from Aaron Sorkin's excellent play and movie, "A Few Good Men," which chronicles the trial of two Marines accused of murdering their squadmate. For those unfamiliar with the plot, the Marines were ordered to conduct a 'Code Red,' disciplinary action between enlisted men intended to improve the performance of a substandard soldier or Marine, ordered by COL Jessup via the Platoon Commander. Something went wrong and the Marine in question died, and Jessup refused to acknowledge having ordered the Code Red, putting the Marines on trial for murder. In the course of being cross-examined by the defense attorney, COL Jessup gives the above soliliquy, followed by an admission that he did order the Code Red. While I am a fan of the film and I believe the outcome was the correct one, I am not alone among military personnel in acknowledging that while COL Jessup was wrong not to accept responsibility for his actions, the points he makes in the above speech are nonetheless valid.

Prostitution may be the world's oldest profession, but the profession of arms didn't come much later. Humanity has fought with each other as far back as recorded history, and almost certainly well before that as well. There have always been people who decided that it would be a lot easier to take what someone else has produced rather than doing the hard work of producing it themselves. Early on, that led to crimes like theft and robbery. As humanity formed into tribes that worked together, they moved on to war, the wars growing in scope as humanity developed larger tribes and then nations. As technology advanced and wars became more destructive, humans decided to try and create rules to reduce the destructive effects of war. We even trying forming institutions that would try to avert war, from alliances like the Triple Entente and the Triple Alliance (big failures) and NATO (a pretty big success) to international organizations like the League of Nations and the United Nations. But, contrary to what people like to believe, when it comes to fighting it doesn't take two to tango. On September 1, 1939, Poland would have been quite happy to remain at peace, but Germany wasn't willing to go along, thus kicking off round two of the First World War (and people think sequels are a relatively new innovation). Going to war isn't like launching missiles from a submarine; as long as one side is willing to turn its key, you have a war.

Many nations prefer to avoid war. From the historical perspective, this is probably an excellent strategy, as wars are expensive and destructive. But avoiding war is, as noted above, not merely a matter of choosing not to fight. As George Washington observed many years ago, "If we desire to avoid insult, we must be able to repel it; if we desire to secure peace, one of the most powerful instruments of our rising prosperity, it must be known, that we are at all times ready for War." Nations that have avoided war generally either have strong militaries that can repel potential invaders, or geographic advantages that make conquering them too difficult to justify. (Switzerland, the best example, combines excellent defensive terrain and a capable military to make it far cheaper for any European nation to simply go around them if engaged in war.) And even when nations are strong enough to make invasions unwise, history offers countless examples of leaders who made the mistake of believing they could win a fight despite strong evidence to the contrary. Armies are therefore a necessary evil. If everyone would agree to lay down their arms perhaps it would be otherwise, but there is no reason to believe such a state of affairs would ever obtain. It is therefore incumbent that nations maintain the ability to defend their citizens from the depredations of neighboring states.

War is not violence for the sake of violence. War is focused violence, killing and destruction aimed at a very specific aim. Historically, war's aim has been the conquest of territory. For the United States, war generally seeks to break the enemy's will to resist and therefore end the war. But the destruction and death that war inevitably requires are not random; they are aimed at the targets that strategists believe will lead to the preferred outcome. Sometimes those choices are good; in Kosovo, NATO was able to convince Serbia to withdraw from Kosovo (eventually) by bombing Serbian installations throughout Serbia, causing destruction that was eventually large enough that the Serbian government decided it was unwilling to accept that level of destruction to accomplish its aims in Kosovo. Sometimes those choices are bad; Israel's recent war with Hezbollah and Lebanon appears (and this may prove to be inaccurate as more information surfaces) to have hit many Lebanese targets that damaged Israel's reputation without harming Hezbollah. But in both cases, national militaries selected targets based on their belief that destroying them would end the war in their favor. Even much of the devastation inflicted on Germany and Japan during World War II was done on the mistaken assumption that such a high degree of damage would induce those governments to surrender. Successful wars are the result of violence placed in the correct places.

A good army, then, is one capable of fighting successful wars. This sounds like circular reasoning, but if we posit that successful warfighting requires certain characteristics, we can divine the characteristics of a successful army. As noted above, successful armies apply the appropriate amount of violence against the appropriate targets. Accomplishing this requires a number of things: good intelligence, intelligent leadership, an understanding of the art and science of war, and, above all, good soldiers. Good soldiers can overcome a lot of deficiencies. For those who enjoy a little history, studying the events early on the morning of June 6, 1944 is a good case study in the value of good soldiers. American airborne troopers jumped into Normandy and into a disaster. Due to the volume of German antiaircraft fire and the inexperience of the pilots, few if any of the paratroopers landed in their drop zones. Instead they were scattered far and wide across the Cotentin Peninsula, often alone or in groups of only 3-5 soldiers. Some had officer or NCO leadership, others were only groups of privates. They very easily could have done little more than mill about aimlessly, waiting for light or for leadership to find them. But they knew their objectives, and they knew the importance of their mission, so those small groups did whatever they could to find their objectives and complete their missions. The individual initiative of hundreds of soldiers made the airdrop a success despite conditions far worse than what the planners had envisioned, and helped to make D-Day a success. Creating a successful army, then, depends on getting good soldiers.

Despite humanity's proclivity for fighting, finding the right men for an army is not easy. One must find people willing to risk their lives for generally abstract principles. The number of people willing and able to accept those risks are not large. Then those individuals must be trained. On the one hand, soldiers have to be trained to kill other human beings, something that is thankfully quite difficult for most civilized people. On the other hand, soldiers have to kill the right people; armies that simply kill everything they see are not effective in modern war, not to mention the rather stark ethical issues such conduct would raise. So armies must train soldiers to be ready to pull the trigger, but who identify their targets before doing so to ensure they are killing the right people, something that goes against the self-preservation instinct. That requires something that can overcome self-preservation.

What makes people risk their life by going into combat? One possibility would be some kind of mental problem; sociopaths might well enjoy the opportunity to kill others with legal sanction. But even members of the military aren't always at war, and sociopaths have difficulty functioning normally enough to avoid suspicion when their unit isn't actually in combat. And because the military doesn't want people who kill for the sake of killing, sociopaths don't really last long. Even the man suspected of raping and murdering an Iraqi girl and her family was put out of the Army due to personality problems shortly after his return from Iraq. The military neither wants to recruit sociopaths, nor does it want to create them. So it must find another method, and the means most commonly used it a cause. That cause is, unsurprisingly, patriotism: while people have many reasons for choosing military service, it is rare that patriotism doesn't play a role. Military personnel believe, as a rule, that their service is in some purpose, that it is not simply killing for the sake of killing.

It is therefore wholly unsurprising to me that LTG Mattis would say that it's fun to kill some people. I don't believe he means it is literally fun to pull the trigger and see another human being die, but that eliminating the enemies of his country is a good feeling because his actions have real meaning. I understand, as I suspect does LTG Mattis, that some people will disagree with that meaning, but for us it exists. We are risking our lives in the service of something greater than ourselves, and that is a good feeling. (Particularly when you survive the experience.)

Which brings me back to COL Jessup's comments. I am quite confident that the comments to this post will include people who wish to inform me that I am foolish or stupid to believe that military service is a noble calling. Others will point out that what we're doing in Iraq is bad, and therefore our service there is not helping our country or that we're sick individuals because we look forward to the opportunity to eliminate the enemies of our country. Even in unambiguously good causes there will always be those who believe military service is a bad thing, and there are no small number of people who live in a fantasy world where we could all get along if it wasn't for military people instigating wars, as if the human race as a whole has a natural tendency for peace that the military undermines. I hope that, for those who actually seek understanding of the military, I have done some little good in explaining who we are and what we believe.

Why do you like them so much?
Because they stand upon a wall and say, 'Nothing's going to hurt you. Not tonight. Not on my watch.'

Lt. Gen. James Mattis

by hilzoy

One of the things that always worries me about blogs is this: it's incredibly easy for one incident to grab a lot of attention, and end up absolutely eclipsing everything else the participants have ever done. In some cases, this is perfectly appropriate: I do not know a lot about Jeffrey Dahmer's childhood, his relationships with his friends, or his work history, but I'm not sure what possible revelation could make me think that his being a serial killer and cannibal had just been blown out of proportion. In others, though, it's not.

I mention this because I was reading this post by Digby, who is one of my favorite bloggers ever, and it contains this from CNN:

"Lt. Gen. James Mattis, who commanded Marine expeditions in Afghanistan and Iraq, made the comments Tuesday during a panel discussion in San Diego, California.

"Actually it's quite fun to fight them, you know. It's a hell of a hoot," Mattis said, prompting laughter from some military members in the audience. "It's fun to shoot some people. I'll be right up there with you. I like brawling.

"You go into Afghanistan, you got guys who slap women around for five years because they didn't wear a veil," Mattis said. "You know, guys like that ain't got no manhood left anyway. So it's a hell of a lot of fun to shoot them.""

About which Digby says:

"This is just in keeping with Bush administration policy that all the most outrageous of his commanders and failed advisors must be promoted and commended."

I just finished reading Thomas Ricks' Fiasco, which has a description of Mattis that makes him sound a lot more complicated, and a lot more impressive, than the CNN article would indicate. (He also comes off pretty well in Cobra II, although the time period that book covers means that he has less of a role.) How that squares with the incident CNN reports (and which Ricks also notes) I have no idea. In Ricks' book, the impressive part comes first, and so when I arrived at the episode CNN describes, I didn't think "oh, a bloodthirsty neanderthal"; I though: how on earth did the guy I read about earlier end up saying that? I can imagine various possibilities -- for one thing, Mattis generally comes across as someone who thinks: you have to be very fair and very smart in wartime, and you have to think about the morality of what you do, but that said, sometimes you also have to kill people. He also comes across as someone who genuinely likes being in the Marines, and who also likes fighting. It's not impossible to think of ways in which a person like that might say something like what CNN reports, especially if you imagine that he really did mean the "some" in "It's fun to shoot some people."

I mean: I do not, myself, understand why someone would enjoy shooting any people. It's a mystery to me, the way it's a mystery that some people enjoy putting money into a machine that periodically spits small fractions of it back to them when cheesy pictures of fruit line up. But since there are people who genuinely like warfare, the armed forces is a good place for them, and I think a lot would turn on whether they recognize the importance of keeping that peculiar taste within extremely clear and well-structured limits. (The way it's really important for someone with the sort of go-for-the-jugular competitiveness that a world-class athlete would need to keep that feature of her personality confined to her sport, and out of, say, her marriage.) As I said, I don't know Gen. Mattis, so I'm in no position to say whether he does recognize that or not. But Ricks' description suggests that he does, and so, in the interests of context and fairness, I will summarize and excerpt some of what Ricks says below the fold.

Listen to the Music, Not the Song

by Andrew

Because we haven't had an open thread in a while, and because I'm currently acting battalion commander and I'm not going to have a lot of time for other activities while that's the case, and because someone asked, I'll post a few notes on some of my favorite tunes.

I'll start with the traditional listing of the top ten most popular songs on my iPod, although that's a poor proxy in my case because I don't have all of my favorite songs on there yet and I only have about six weeks of history to draw on.

1. There's the Girl, Heart
2. Walk Like an Egyptian, The Bangles
3. eBay, Weird Al Yankovic
4. Thunderstruck, AC/DC
5. Told You So, Barenaked Ladies
6. Heaven Is A Place On Earth, Belinda Carlisle
7. One For the Mockingbird, Cutting Crew
8. She Bop, Cyndi Lauper
9. Should I See, Frozen Ghost
10. Taking It All Too Hard, Genesis
11. Do You Wanna Touch Me? (Oh Yeah), Joan Jett
12. Pretty in Pink, The Psychedelic Furs
13. So Long, Farewell, from The Sound of Music
14. Blood & Roses, The Smithereens
15. Only a Memory, The Smithereens
16. I Loved You Once In Silence, from Camelot

I actually listed 16, since #4-16 have all been played an equal number of times. Interestingly, few of those songs are my favorites from the artists in question. Were I to select a favorite song from those artists, I think I would swap out Everything I Wanted for The Bangles, It's All Been Done Before by Barenaked Ladies, Leave a Light On by Belinda Carlisle, Girls Just Wanna Have Fun by Cyndi Lauper, and I Hate Myself For Loving You by Joan Jett. Of course, even then we're not really looking at my favorite songs, but that is at least a good start. Just for fun, I'll also offer the first ten songs off a random selection on my iPod.

1. Uptown Girl, Billy Joel
2. Old Friends/Bookends, Simon & Garfunkel
3. Emotion in Motion, Naked Eyes
4. Physical, Olivia Newton-John
5. Tonight She Comes, The Cars
6. Toccata and Fugue in D Minor, Bach (Ah, Bach.)
7. Hide and Seek, Howard Jones
8. Joe, The Cranberries
9. Vacation, The Go-Gos
10. Walking Down Your Street, The Bangles.

Talk amongst yourselves.

Court Strikes Down NSA Program

by hilzoy

From the Washington Post:

"A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," Taylor wrote in her 43-page opinion."

Here are the decision (pdf) and the injunction (pdf) (h/t ThinkProgress.) The injunction reads in part:

"IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter “TSP”) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III;

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III"

I have read the decision, and I think it's pretty scathing, in that understated way that judges have. For instance, consider this passage:

"In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation
has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in
violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution."

I am not a lawyer, so I am open to correction, but I read this passage, and especially its last paragraph (which I have quoted in its entirety, and which is repeated at least three more times elsewhere in the opinion), as the understated judicial version of fury and contempt.

Likewise, here is the conclusion of the opinion:

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.

"

God save this honorable Court.

Failures Of Will, Take 2

by hilzoy

Tom Friedman had a good column yesterday. Writing about "Dick Cheney & Friends focusing their public remarks on why Mr. Lamont’s defeat of Mr. Lieberman only proves that Democrats do not understand that we are in a titanic struggle with “Islamic fascists” and are therefore unfit to lead", he said:

"Oh, really? Well, I just have one question for Mr. Cheney: If we’re in such a titanic struggle with radical Islam, and if getting Iraq right is at the center of that struggle, why did you “tough guys” fight the Iraq war with the Rumsfeld Doctrine — just enough troops to lose — and not the Powell Doctrine of overwhelming force to create the necessary foundation of any democracy-building project, which is security? How could you send so few troops to fight such an important war when it was obvious that without security Iraqis would fall back on their tribal militias?

Mr. Cheney, if we’re in a titanic struggle with Islamic fascists, why have you and President Bush resisted any serious effort to get Americans to conserve energy? Why do you refuse to push higher mileage standards for U.S. automakers or a gasoline tax that would curb our imports of oil? Here we are in the biggest struggle of our lives and we are funding both sides — the U.S. military with our tax dollars and the radical Islamists and the governments and charities that support them with our gasoline purchases — and you won’t lift a finger to change that. Why? Because it might impose pain on the oil companies and auto lobbies that fund the G.O.P., or require some sacrifice by Americans.

Mr. Cheney, if we’re in a titanic struggle with Islamic fascists, why do you constantly use the “war on terrorism” as a wedge issue in domestic politics to frighten voters away from Democrats. How are we going to sustain such a large, long-term struggle if we are a divided country?

Please, Mr. Cheney, spare us your flag-waving rhetoric about the titanic struggle we are in and how Democrats just don’t understand it. It is just so phony — such a patent ploy to divert Americans from the fact that you have never risen to the challenge of this war. You will the ends, but you won’t will the means. What a fraud!"

For all that Bush, Cheney, et al talk about the cosmic importance of our struggle with "Islamic fascists", their own actions show that they do not care enough about that struggle to do it right. They are, and have always been, more concerned with their own political standing than with the interests of our country. If they were not, they could not have made such absolutely fundamental errors as failing to send in enough troops to do the job right, or failing to plan for the aftermath of the invasion, or failing to take even basic steps to secure our country after 9/11. Those are not the sort of errors that can be put down to stupidity; they are careless errors.

Just remember: you heard it here first ;)

I, For One, Welcome Our New Democratic Overlords

by Andrew

The rumblings can be heard on K Street. Steely-eyed men who put their money on the line are shifting where that money goes. Yes, Democrats are welcome again on K Street, a very good sign businesses think Congress's power base will be shifting in November. And if the Democrats are in power, or even close to it, lobbyists know that they're going to have to grease those skids in order to make sure they get the legislation they want through Congress. It is, after all, the American way.

While this hardly means it is certain that Democrats will take back one or both houses of Congress in November, it will be of no small help to them. As the article points out, a few Democrats who were considering moving into the lobbying end of governance are considering sticking around to enjoy potentially being in the majority. And a few Republicans are talking about making the move to lobbying even before the election returns in, a clear indicator of which direction the tide is flowing in. As Napoleon once observed, in war the moral is to the physical as three is to one: well-motivated troops can overcome significant shortfalls elsewhere, and as the first Tuesday in November grows closer, the Democrats' morale is surging while Republican morale, already sapped by years of defending President Bush, is sagging.

A lot can happen in two-plus months. But it's hard not to like the Democrats' odds right now. Here's hoping they live up to their supporters' promises.

Pledge Drive: Lebanon

by hilzoy

Jonathan Edelstein, aka the Head Heeb, writes:

"The next task in the Middle East is to rebuild what has been destroyed and to heal what can't be rebuilt: to restore the houses and the roads, to comfort and provide for the bereaved families. Rebuilding northern Israel is an urgent priority, reconstructing southern Lebanon much more so. Lebanon sustained more damage than Israel - environmental as well as structural - and it has fewer resources to rebuild. Lebanon, has also been under a blockade for the past month and is running short on humanitarian supplies in addition to its longer-term needs.

Some, Shimon Peres included, have proposed a massive international effort to rebuild Lebanon - a Marshall Plan of sorts. It's important, for both political and moral reasons, that this happen and that Israel take part in it. Such a program would be both a way to ensure that the south is rebuilt by someone other than Hizbullah, and a chance to make good on the promise that Israel is not at war with the Lebanese people. But aid programs, especially major ones, always take time to plan and implement, and there's a great deal that can't wait for the international community to get its act together.

For this reason, I will match up to US $1250 in reader donations for reconstruction of southern Lebanon and up to US $750 to rebuild northern Israel. I strongly encourage Israeli and Jewish readers to donate to Lebanese charities and vice versa, but that isn't mandatory; I will match all donations to non-extremist-controlled charities up to the stated sum."

I think this is a really good idea, so I have decided to do something similar. I will match the first $1000 (good Lord, did I really just type that?) that people give to non-extremist charities working to rebuild Lebanon. Since my ability to research charities is limited, I reserve the right to substitute one of the charities I list below for yours, in case of doubt. But I will match the money.

About the fact that I'm specifying Lebanon and not Israel: I wavered about this. I have already given money to charities for use in Israel, and urge everyone to do likewise. Here's a web site with links to charities working in both Israel and Lebanon; in addition, you could give to Magen David Adom (the Red Star of David), the Israel Emergency Campaign of the United Jewish Communities, or the B'nai B'rith Israel Emergency Fund.

However, I decided to match funds going to Lebanon for the following reasons. First, Lebanon suffered a lot more damage, and since it is a poorer country, it has fewer resources to deal with it. Second, I did some research before writing this post, and there are a bunch of stories about charitable giving for Lebanon being slow, in part because of political reasons. Third, I think it really matters, politically, that Americans help out in Lebanon. Our support for Israel is not in doubt, but after the events of the last month, our support for Lebanon definitely is. Also, we're not Hezbollah.

But for me, the most important reason is the extent of the need, and the apparent lack of resources with which to meet it.

So: a thousand dollars it is. If you want to post donations, fine; if not, just email me privately. I'll update this page if we seem to be getting near my limit.

Here are some charities working in Lebanon:

ICRC

World Food Programme

Doctors Without Borders [Note: they don't, as far as I can see, let you designate funds for Lebanon, so possibly another charity would be better.]

Mercy Corps

There's also the page I linked earlier, which lists several other charities.

I have no idea what will happen with this post, but it seemed worth trying. Thanks.

PS: Any other bloggers want to do this?

*** UPDATE: Within twelve hours of putting this post up -- twelve hours which included the middle of the night, US time -- I'm within several hundred dollars of the thousand dollars I pledged. Thanks to everyone who has donated so far. You all are really wonderful.