Wiretap-dancer in chief

Bush’s NSA Fetish
A Brief Hang-Up on Wiretaps
Pierre Tristam/Candide’s Notebooks, August 18, 2006

Eugene Volokh, in his usual sentences of Proustian lengths and pallid substance, goes for the defensively condescending: “You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it's likely that the decision will be appealed.[…] By that standard, the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion (‘[The orders] violate the Separation of Powers orained [sic.] by the very Constitution of which this President is a creature,’ emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges -- especially when the opinion is rich in generalities, platitudes (‘There are no hereditary Kings in America and no powers not created by the Constitution’), and ‘obviously’’s, and poor in detailed discussion of some of the government's strongest arguments.” Sorry for the turbid citation, but it illustrates how reactionaries don’t like it when liberals ape Antonin Scalia’s techniques, whose Ringling Bros.-like opinions, entertaining as they are, love their obviouslys and their rhetorical trickery.

Not that Judge Taylor is in it for the tricks. The opinion will get it from all sides, but it’s a section toward the end, on the administration’s arguments on the authorization for the use of military force, that caught my attention. A week after the 9/11 attacks, Congress passed this authorization that immediately became, to the administration anyway, a blank check to do anything and everything it pleased under the sun. Guantanamo? Use of force authorization. Rendition? Use of force authorization. Iraq? Torture? Black sites? Domestic spying? Lying? Use of force authorization.

The wording of the law is nowhere near that expansive, of course. It states 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.” The judge’s response: The authorization “says nothing whatsoever of intelligence or surveillance. The government argues that such authority must be implied. Next it must be noted that FISA [the Foreign Intelligence Surveillance Act, which requires warrants to be cleared by the secret FISA court before domestic wiretapping occurs] and Title III, are together by their terms denominated by Congress as the exclusive means by which electronic surveillance may be conducted. Both statues have made abundantly clear that prior warrants must be obtained from the FISA for such surveillance, with limited exceptions, none of which are here even raised as applicable.[…] Even if the [use of force] Resolution superseded all other statutory law, Defendants have violated the constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine.”

Last June it was the Supreme Court reminding the administration that the Geneva Conventions and due process do apply, even for “enemy combatants,” and that the “enemy combatant” designation is a figment of this administration’s fertile if evasive imagination. This ruling is obviously less consequential, having to go through the appeals process. The fact that the judge was a liberal appointee can’t be ignored, either. These are mendacious times. Judges somewhere up the splintered ladder must be rubbing their hands at the prospect of reversing this thing and getting their share of headlines. The question is whether they’re still in the majority. And if this makes it to the Supreme Court, unlike last summer’s case, Judge Roberts will take part, as will Alito. It’ll all depend on Justice Kennedy. Meanwhile, these words are, as always, under surveillance.