WHEN THE POWERS WERE SEPARATED., THIS ONE WASN'T LEFT TO HER:

The Constitution vs. Counterterrorism (RICHARD A. POSNER, August 22, 2006, Wall Street Journal)

Last week a federal district judge in Detroit ruled that the National Security Agency's conduct of electronic surveillance outside the boundaries of the Foreign Intelligence Surveillance Act is illegal. As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security.

A further strangeness is that the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (which hears appeals from FISC) have been bypassed, with regard to adjudicating the legality of the NSA program, in favor of the federal district court in Detroit. The reason is that the jurisdiction of those courts is limited to foreign intelligence surveillance warrants, and the NSA program under attack involves warrantless surveillance.

In June, the Supreme Court in the Hamdan decision invalidated the military commissions that the Defense Department had established to try captive terrorists -- commissions that had never succeeded in conducting any trials. And the pending Senate bill to revise the Foreign Intelligence Surveillance Act contemplates the submission of NSA programs to the Foreign Intelligence Surveillance Court for an opinion on their legality -- a problematic procedure because federal courts are not permitted to render advisory opinions. A court might even hold that a surveillance "program," as distinct from the surveillance of specific individuals, was a "general warrant," which the Fourth Amendment forbids.

Five years after the 9/11 attacks, the institutional structure of U.S. counterterrorism is in disarray. The Department of Homeland Security remains a work in progress -- slow and painful progress -- and likewise for the restructuring of the intelligence community decreed by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004. And now, in the wake of Hamdan and the Detroit case, we learn that we do not have a coherent judicial dimension to our efforts to combat terrorism. (One reason may be that there is no official with overall responsibility for counterterrorism policy.) Other than the judges assigned to the two foreign intelligence courts, federal judges do not have security clearances and, more to the point, have no expertise in national security matters. Moreover, the criminal justice system is designed for dealing with ordinary crimes, not today's global terrorism, as is shown by the rules, for example, that entitle a person who is arrested to a prompt probable-cause hearing before a judge and require that criminal trials be open to the public.

It's a national security matter, not a criminal matter.

MORE:
A Law Unto Herself (ANN ALTHOUSE, 8/23/06, NY Times)

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.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison.

The Republic's version of the original sin. Disposing of it would make George W. Bush the most significant president in our history.

Posted by Orrin Judd at August 23, 2006 8:59 AM