Judge nixes warrantless surveillance

[RandomGuy]

I think that the claims of venue-shopping were probably right. I would bet this makes it to the supreme court.

I would further bet that this wiretapping will eventually be found uncons utional, despite what Yoni and his own venue-shopped lawyers say.

[FromWayDowntown]

Hey Mr. Bloviator, I listed some commentary. So, show me some from the left that are defending the crazy judge.

I'm not defending the judge. I'm just pointing out that this issue will, undoubtedly, rehash the judicial activism cannard as the right makes outcome-oriented complaints about the qualifications and credentials of judges. Just my opinion. I've got no need to rely on others to tell me what to think about that.

I certainly respect the views of Eugene Volokh and Orin Kerr, among others. I've frequently cited both of them in this forum and don't quarrel with their conclusions about this case. But what they've said has little to do with the propriety of the outcome and much, much more to do with the rationale by which that outcome was reached. Volokh concedes that it's not the outcome, but the rhetoric that is problematic here. Carpenter readily admits that he thinks the outcome here is probably legally correct in some abstract sense, even if untenable given the specific facts of the case. And Kerr, who is clearly a 4th Amendment wonk, admits that he thinks the ultimate issue presented by the case will prove to be a close call while lamenting that extrinsic factors may have caused this judge to issue an opinion that could have been revised to provide a better rationale while still reaching the same outcome. Seemingly, all of the initial commentators you cited don't question the ultimate decision here; they question the style by which that decision was reached and explained. Those strike me as two very, very different questions.

[Yonivore]

I'm not defending the judge. I'm just pointing out that this issue will, undoubtedly, rehash the judicial activism cannard as the right makes outcome-oriented complaints about the qualifications and credentials of judges. Just my opinion. I've got no need to rely on others to tell me what to think about that.

I certainly respect the views of Eugene Volokh and Orin Kerr, among others. I've frequently cited both of them in this forum and don't quarrel with their conclusions about this case. But what they've said has little to do with the propriety of the outcome and much, much more to do with the rationale by which that outcome was reached. Volokh concedes that it's not the outcome, but the rhetoric that is problematic here. Carpenter readily admits that he thinks the outcome here is probably legally correct in some abstract sense, even if untenable given the specific facts of the case. And Kerr, who is clearly a 4th Amendment wonk, admits that he thinks the ultimate issue presented by the case will prove to be a close call while lamenting that extrinsic factors may have caused this judge to issue an opinion that could have been revised to provide a better rationale while still reaching the same outcome. Seemingly, all of the initial commentators you cited don't question the ultimate decision here; they question the style by which that decision was reached and explained. Those strike me as two very, very different questions.

What of Bryan Cunningham's analysis?

[FromWayDowntown]

What of Bryan Cunningham's analysis?

Eh. He disagrees. The ultimate issue is a close one. Disagreement on the ultimate issue is fairly unexceptional.

[Yonivore]

Eh. He disagrees. The ultimate issue is a close one. Disagreement on the ultimate issue is fairly unexceptional.

You call what he wrote merely "disagreement?" Fascinating.

[FromWayDowntown]

You call what he wrote merely "disagreement?" Fascinating.

He challenges this judge for both her conclusion and her rationale.

You seem to suggest that Cunningham is a foremost and unassailable expert on both the legal and political issues that the NSA program creates and that nobody could rationally challenge his conclusions about the feasibility and cons utionality of that program. Alas, for you, that's not how the judicial system contemplated by our Cons ution operates. I'm sure you'd prefer that all disputes about the legality of this President's foreign policy choices be submitted to Mr. Cunningham for resolution. Until he's confirmed to sit on a federal bench somewhere, though, that's not his province and his opinion, while certainly persuasive to some is hardly controlling to all.

Curiously, you've also cited legal experts with equally stellar credentials (Orin Kerr and Eugene Volokh were both Supreme Court clerks -- not a position one obtains without significant ability as a legal scholar) who concede that the legality of the program is at best a close call and admit (as Volokh does) that a well-reasoned opininon reaching this conclusion might very well stand up against appellate review through the Supreme Court.

Again, other than Cunningham, the commentary you've presented is less about the conclusion than it is about the means used to reach that conclusion. At the end of the day, the conclusion in any case will be far more significant to the fate of the NSA program than the rationale used to justify that conclusion. Cunningham obviously disagrees with, say, Dale Carpenter, about whether the program is ultimately cons utional. That's the debate we should be having here -- the propriety of the conclusion, regardless of the eloquence of the rationale.

You seem more inclined to castigate this particular judge as a partisan hack than to discuss the possibility that her ultimate conclusion might actually be correct. Insert judicial activism cannard (copyright 2000, GOP).

[Yonivore]

He challenges this judge for both her conclusion and her rationale.

You seem to suggest that Cunningham is a foremost and unassailable expert on both the legal and political issues that the NSA program creates and that nobody could rationally challenge his conclusions about the feasibility and cons utionality of that program. Alas, for you, that's not how the judicial system contemplated by our Cons ution operates. I'm sure you'd prefer that all disputes about the legality of this President's foreign policy choices be submitted to Mr. Cunningham for resolution. Until he's confirmed to sit on a federal bench somewhere, though, that's not his province and his opinion, while certainly persuasive to some is hardly controlling to all.

I'd never heard of him before today. He just makes a compelling argument about the rationale and probable motives behind Judge Taylor's decision. Just as did many other legal experts I have cited here. Again, can you find a legal expert that is defending her decision?

Curiously, you've also cited legal experts with equally stellar credentials (Orin Kerr and Eugene Volokh were both Supreme Court clerks -- not a position one obtains without significant ability as a legal scholar) who concede that the legality of the program is at best a close call and admit (as Volokh does) that a well-reasoned opininon reaching this conclusion might very well stand up against appellate review through the Supreme Court.

Without going back to all their written discourse on this topic, and I read Volokh daily, I believe his position is that not enough can be known, without compromising national security, to even allow a court to render a decision on this matter but that if the administration is conducting intelligence gathering operations as it claims it is (using the program for only foreign intelligence operations), what they are doing is perfectly consistent with the first and fourth amendments and FISA.

It's back to what I've contended before; without an injured party with standing, there's no reason for this to be in the courts right now.

Again, other than Cunningham, the commentary you've presented is less about the conclusion than it is about the means used to reach that conclusion. At the end of the day, the conclusion in any case will be far more significant to the fate of the NSA program than the rationale used to justify that conclusion. Cunningham obviously disagrees with, say, Dale Carpenter, about whether the program is ultimately cons utional. That's the debate we should be having here -- the propriety of the conclusion, regardless of the eloquence of the rationale.

I don't think Judge Taylore's decision will stand any serious scrutiny and, in fact, it was vacated by an appellate court -- pending the appeal -- the same day it was issued.

You seem more inclined to castigate this particular judge as a partisan hack than to discuss the possibility that her ultimate conclusion might actually be correct. Insert judicial activism cannard (copyright 2000, GOP).

She is a partisan hack and her decision isn't worth the paper it's written upon. Besides not offering any cons utional or precedental support for her finding, she made a mockery of the judicial system. If this is the best the ACLU can find in its pursuit of the NSA Program, I'm comfortable it will be upheld by a more competent jurist than Taylor.

As has been suggested, this is a problem with the federal judiciary; litigants can venue shop. And, if the all-powerful ACLU did their shopping and came up with Taylor, that tells me no one else thought they had a leg to stand on.

[FromWayDowntown]

I'd never heard of him before today. He just makes a compelling argument about the rationale and probable motives behind Judge Taylor's decision. Just as did many other legal experts I have cited here. Again, can you find a legal expert that is defending her decision?

Are you being purposefully obtuse? I've spent the last few posts distinguishing the problematic nature of her rationale from the seemingly supportable conclusion she reached. As I've repeated several times, Volokh, Kerr, and Carpenter all appear to concede the possibility that the ultimate conclusion may be correct, even if reached by poor reasoning. You seem either unwilling or unable to make that distinction. I don't see any particular utility in finding a legal expert to defend her rationale, largely because I am persuaded that the rationale is lacking. But, again, poor rationale does not make the ultimate conclusion incorrect.

Without going back to all their written discourse on this topic, and I read Volokh daily, I believe his position is that not enough can be known, without compromising national security, to even allow a court to render a decision on this matter but that if the administration is conducting intelligence gathering operations as it claims it is (using the program for only foreign intelligence operations), what they are doing is perfectly consistent with the first and fourth amendments and FISA.

That's a rather exceptional characterization, given that the post you originally cited in this thread readily admitted that better reasoning in this case could very well have been persuasive to upstream jurists, who might have chosen to uphold the reasoning AND the conclusion. At the very least, that would suggest either that Volokh: (1) has no faith in the ability of federal appellate court judges to reach correct legal decisions and the ease with which they might be persuaded to reach incorrect results by logical brilliance; or (2) isn't convinced that the resolution of the ultimate cons utional question here is particularly clear-cut. Having also read Volokh for some time, I'm rather inclined to believe that, on balance, he subscribes to the second view.

It's back to what I've contended before; without an injured party with standing, there's no reason for this to be in the courts right now.

Admittedly a concern for those who seek to establish that the program is uncons utional. That might very well be the basis for the reversal of this decision. But the absence of standing by a particular person who is willing to sue doesn't make the program cons utional.

I don't think Judge Taylore's decision will stand any serious scrutiny and, in fact, it was vacated by an appellate court -- pending the appeal -- the same day it was issued.

The decision couldn't have possibly been vacated by an appellate court. Vacatur is a remedy available at the conclusion of an appeal, not before any appellate review has occurred. The parties apparently agreed to stay enforcement of the orders attendant to Judge Taylor's decision -- very much different than an appellate court taking any action at all. And even if the appellate court itself was responsible for the stay, the fact of a stay in a case like this one is a rather unexceptional occurrence.

She is a partisan hack and her decision isn't worth the paper it's written upon. Besides not offering any cons utional or precedental support for her finding, she made a mockery of the judicial system.

Ah-ha!! Your argument.

If this is the best the ACLU can find in its pursuit of the NSA Program, I'm comfortable it will be upheld by a more competent jurist than Taylor.

As has been suggested, this is a problem with the federal judiciary; litigants can venue shop. And, if the all-powerful ACLU did their shopping and came up with Taylor, that tells me no one else thought they had a leg to stand on.

Litigants can shop for venue in almost every American judicial system. That's an inherent problem with permissive venue rules that create multiple bases for establishing proper venue. But those permissive venue rules are among the best protection that most litigants have in most cases. I don't know that there's any great uproar to fundamentally overhaul the venue rules, largely because the problems with doing so would substantially outnumber the relatively minor problems that currently exist, most all of which are remediable by existing protections afforded to defendant parties in litigation.

I wouldn't assume that a reversal of this decision would prove to be a death knell to litigation concerning the NSA program. There are several separate tracks of litigation occurring right now -- and in at least one of those cases, the rulings that have been made to this point aren't terribly favorable to the government. As Kerr's note points out, part of what may have hastened the release of the decision in this case is the looming possibility of an order consolidating all NSA program litigation into a single nucleus. We'll see.

[Yonivore]

Are you being purposefully obtuse? I've spent the last few posts distinguishing the problematic nature of her rationale from the seemingly supportable conclusion she reached. As I've repeated several times, Volokh, Kerr, and Carpenter all appear to concede the possibility that the ultimate conclusion may be correct, even if reached by poor reasoning.

I don't believe they do anything of the sort. They say the NSA Programs could be held to be uncons utional if, in fact, the program were engaged in practices that, up to this point in the debate, have neither been alleged nor shown to have occurred. That's the case with the application of any law; the applicant's behavior could be uncons utional if they acted outside the cons utional parameters allowed by the law.

That's all Volokh has ever suggested. And, he's made the caveat that, to his knowledge, no one has accused the administration of acting in this regard and, indeed, no one has claimed to have been materially harmed by the NSA Program.

I can't speak for the other guys.

You seem either unwilling or unable to make that distinction. I don't see any particular utility in finding a legal expert to defend her rationale, largely because I am persuaded that the rationale is lacking. But, again, poor rationale does not make the ultimate conclusion incorrect.

My point is this; given the facts we have -- and are likely to ever have -- there is no available rationale that would support such a finding.

That's a rather exceptional characterization, given that the post you originally cited in this thread readily admitted that better reasoning in this case could very well have been persuasive to upstream jurists, who might have chosen to uphold the reasoning AND the conclusion. At the very least, that would suggest either that Volokh: (1) has no faith in the ability of federal appellate court judges to reach correct legal decisions and the ease with which they might be persuaded to reach incorrect results by logical brilliance; or (2) isn't convinced that the resolution of the ultimate cons utional question here is particularly clear-cut. Having also read Volokh for some time, I'm rather inclined to believe that, on balance, he subscribes to the second view.

I think their points -- particularly Mr. Cunninghams -- are that better reasoning would have necessarily have had to include a more dutiful analysis of the first and fourth amendments to the U. S. Cons ution and FISA and that this would necessarily expose the jurist to having to deal with established court precedent that tends to defend the administration's position in the NSA Program.

Admittedly a concern for those who seek to establish that the program is uncons utional. That might very well be the basis for the reversal of this decision. But the absence of standing by a particular person who is willing to sue doesn't make the program cons utional.

No, but the absence of any evidence the administration is acting uncons utionally does tend to act in their defense. Surely, you would agree that just because a law can be abused is not a reason for it to be abandoned.

The decision couldn't have possibly been vacated by an appellate court. Vacatur is a remedy available at the conclusion of an appeal, not before any appellate review has occurred. The parties apparently agreed to stay enforcement of the orders attendant to Judge Taylor's decision -- very much different than an appellate court taking any action at all. And even if the appellate court itself was responsible for the stay, the fact of a stay in a case like this one is a rather unexceptional occurrence.

I'm not a lawyer. I believe it was a stay that was issued. In any case, the judge's order had no affect, beyond the political, and will, I am confident, be vacated or overturned or whatever has to happen for it to be null and void.

Ah-ha!! Your argument.

Well, yeah. That seems to be everyone's position on this crock of crap. What other possible explanation is there for a professional, such as Judge Taylor, to issue such an "amateurish" court ruling on such a potentially significant issue.

I also believe she has acted similarly in the past.

Litigants can shop for venue in almost every American judicial system. That's an inherent problem with permissive venue rules that create multiple bases for establishing proper venue. But those permissive venue rules are among the best protection that most litigants have in most cases. I don't know that there's any great uproar to fundamentally overhaul the venue rules, largely because the problems with doing so would substantially outnumber the relatively minor problems that currently exist, most all of which are remediable by existing protections afforded to defendant parties in litigation.

My point was that since this flaw exists the ACLU must have had a pretty weak case if Judge Taylor was the best they find to take their case. Seems to me they could have found a principled moderate, along the lines of a, say, Eugene Volokh, to take the case -- if, in fact, there was any merit to their claims.

I wouldn't assume that a reversal of this decision would prove to be a death knell to litigation concerning the NSA program. There are several separate tracks of litigation occurring right now -- and in at least one of those cases, the rulings that have been made to this point aren't terribly favorable to the government. As Kerr's note points out, part of what may have hastened the release of the decision in this case is the looming possibility of an order consolidating all NSA program litigation into a single nucleus. We'll see.

Yes, we will.

[RandomGuy]

No, but the absence of any evidence the administration is acting uncons utionally does tend to act in their defense. Surely, you would agree that just because a law can be abused is not a reason for it to be abandoned.

That is an odd thing to say about a program that abandons the law that required wiretapping to be vetted by a court in the first place.

If you are worried about abandoning laws, then you should be against the wiretapping.

I'm not a lawyer. I believe it was a stay that was issued. In any case, the judge's order had no affect, beyond the political, and will, I am confident, be vacated or overturned or whatever has to happen for it to be null and void.

Care to put some real money on it?

What other possible explanation is there for a professional, such as Judge Taylor, to issue such an "amateurish" court ruling on such a potentially significant issue.

I also believe she has acted similarly in the past.

Ad hominem, rinse, repeat.

My point was that since this flaw exists the ACLU must have had a pretty weak case if Judge Taylor was the best they find to take their case. Seems to me they could have found a principled moderate, along the lines of a, say, Eugene Volokh, to take the case -- if, in fact, there was any merit to their claims.

Weak logic at best.

The purpose of venue-shopping to increase the odds in your favor. One can increase the odds and reduce uncertainty but never eliminate it.

If the case is that weak, then surely the administration's case is that much stronger?

If it is that much stronger, then would a case that is, by this logic, a certain slam dunk in any other court, still have a good chance, even with a strongly leaning judge?

The real fallacy here is once again, an ad hominem one.

If a biased judge rules a certain way most of the time, it cannot be conclusively or logically proven that any particular case was ruled on because of that bias.

I liar can lie all the time, but when he tells you the sky is blue, does that then make the sky NOT blue?

[George Gervin's Afro]

why not just get a warrant? that would solve verything however this administration has made no bones about strengthening the excecutive branch. cheney has made it very clear that in his opinion the executive branch has ceded to much authority to Congress and the courts.. To me this is the primary issue.. the expanding of the powers of the executive branch otherwise the NSA could simply apply for warrants for which there is almost a 100% chance the warrants would be granted.


please save the hypothetical " what if there is no time to get the warrant' argument..from my understanding the party tapping the line has up to 15 days after the fact to get the warrant..I am surprised that the known republicans on this board are ok with giving the executive branch carte blanche when it comes to allowing this branch of govt to act in secret.. without any type of checks or balances.

[Yonivore]

Orin Kerr at the Volokh Conspiracy kind of states my argument on this issue:

First, the issues raised by the NSA domestic surveillance program are not easy. Granted, I think that the Administration's published legal defense of the program is weak. But that doesn't mean that the program is illegal; the Administration is giving the program only a very partial defense in its public do ents, so there is a lot more that we don't know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don't know enough of the facts to know if the program violates the Fourth Amendment. I can recite the arguments, but without the facts I can't tell.)

In other words, we don't know enough to know if the program is uncons utional or illegal. And, while Kerr doesn't state so here, others have said so in the past (on Volokh and elsewhere) that being able to know enough to make that determination might unnecessarily compromise national security in that methods and practices and possibly allies would have to be exposed in defending the program.

isn't the gist of Greenwald's argument [similar to that of From Way Downtown's regarding criticizing the judge's rationale over conclusion] somewhat similar to the arguments that the President's most zealous supporters have been making all along? In their case, of course, they have made such claims in response to criticisms of the Administration's legal defense of the NSA program, rather than in response to criticisms of Judge Taylor's opinion striking it down. But you've seen the argument many times, including in many VC comment threads: Rather than dwell on the "fascinating intellectual puzzle" of whether the NSA program is legal, we should focus on the really important question of defending the country against terrorists. In other words, stop quibbling over little legal issues and get back to the big picture. To be fair, this is often a very legitimate argument; legal niceties aren't everything. But it's not obvious to me why we would reject this advice when analyzing the DOJ's defense of the program but not when analyzing Judge Taylor's opinion striking it down.

Again, in other words, why is this argument not alright for defenders of the administration but okay for those who would support the conclusion of Judge Taylor, if not the means by which she reached it?

Once again, I argue that since we have no harmed party the issue shouldn't be before the courts in the first place.

[Obstructed_View]

It's funny that people only dislike legislating from the bench when they don't like the legislation.

[DarkReign]

It's funny that people only dislike legislating from the bench when they don't like the legislation.

Wait, wait....was that a moderate, rational comment?!

You sir are in the wrong forum.

[George Gervin's Afro]

Orin Kerr at the Volokh Conspiracy kind of states my argument on this issue:


In other words, we don't know enough to know if the program is uncons utional or illegal. And, while Kerr doesn't state so here, others have said so in the past (on Volokh and elsewhere) that being able to know enough to make that determination might unnecessarily compromise national security in that methods and practices and possibly allies would have to be exposed in defending the program.


Again, in other words, why is this argument not alright for defenders of the administration but okay for those who would support the conclusion of Judge Taylor, if not the means by which she reached it?

Once again, I argue that since we have no harmed party the issue shouldn't be before the courts in the first place.

So in other words just trust bush? or any president for that matter? we could have just trusted richard nixon but luckily we didn't..

[Obstructed_View]

You sir are in the wrong forum.

Yeah but I like you guys more than most because of the basketball team you root for.

[Mr. Peabody]

Jack Balkin felt the style of the opinion was more strategic than anything.

http://balkin.blogspot.com/

Friday, August 18, 2006
The secret advantages of Judge Taylor's opinion in ACLU v. NSA


JB


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.


Second, Judge Taylor found as a matter of fact that the secret materials she viewed ex parte don't affect the resolution of the case, except for the data mining claim. If that is a pure question of fact, it is subject to the clearly erroneous standard. Of course, if it is a mixed question of law and fact-- which I think it is-- it is subject to more searching appellate review. But either way, Judge Taylor made factual findings that help the plaintiffs on appeal, even if her analysis of the merits is rejected. It may not be accidental, then, that Judge Taylor spent more time on the state secrets issue than she did on the merits. She may have reasoned that the 6th Circuit would do the merits over anyway, but as a trial court judge she could have the most effect on the procedural issues.


Because Judge Taylor undercut the DOJ's state secrets arguments in the ways I have suggested, on appeal the DOJ will probably emphasize standing even more than it already has. 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. Time will tell whether Judge Taylor's work on state secrets and standing pays off and keeps her ultimate judgment-- that the NSA program is illegal-- from being overturned.


Posted 1:11 PM by JB [link] (1) comments

[DarkReign]

Yeah but I like you guys more than most because of the basketball team you root for.

[Yonivore]

So in other words just trust bush? or any president for that matter? we could have just trusted richard nixon but luckily we didn't..

Well, in the case of Richard Nixon, there was evidence of a crime.

[RandomGuy]

Jack Balkin felt the style of the opinion was more strategic than anything.

http://balkin.blogspot.com/

That makes more sense to me than Yoni's "she is an idiot" explanation.

Despite what many like to think about judges on the federal level, they generally don't get there by being intellectual slouches.

If one of them issues something that looks sloppy as Yoni's posted analysis' suggest, it is simply seems more probable to me that there might be some other factor at work.

Fascinating insight into the judicial process this is.

[Ocotillo]

[evil laugh]Sounds like a potential Supreme Court nominee.[/evil laugh]

[Yonivore]

Jack Balkin felt the style of the opinion was more strategic than anything.

http://balkin.blogspot.com/

It's interesting how the "judge" contrived standing for the plaintiffs.

"Standing" here was found by lawyers claiming they were speaking constantly to potential terrorist targets overseas, and their possibly-terrorists clients were too a-scared to speak freely. Even if you buy that, the harm is suffered by the non-citizen terrorist clients, not by the American laywers themselves.

Which brings up a couple of points. #1, made over at Patterico's Pontifications:

Yesterday’s Court Decision Proves the NSA Disclosures Harmed National Security

#2, by James Taranto at WSJ's Online Journal (see sixth item from top led, "Digs at Diggs"), in which it is suggested that the Plaintiffs' admissions are grounds for FISA warrants on the lot of them.

[FromWayDowntown]

I think there is a danger -- in the slippery slope sense -- in the position that Yonivore contends is the superior position. The notion that an Administration could so burden the facts of a case with claims of needed secrecy that it can effectively avoid judicial review of its actions strikes me as inherently problematic in a government of co-equal branches. In the abstract, the executive branch could offer seriatim rebukes to judicial review of virtually any executive-enacted program by simply claiming that the facts associated with determining the cons utionality of the program are state secrets or otherwise inadvisably made public. Certainly, there are some limitations on that and the right of judges to conduct in camera inspections of fact-oriented material that bears on the propriety of the secrecy claims might mitigate the concern. But if the executive chose to do so, it could essentially insulate its programs from any judicial meddling by being as obtuse as possible about the facts of a program and as strident as possible about claiming privilege. If it succeeds in this context, and in light of this Administration's constant carping about its dislike for judges who don't kowtow to the Administration's policy choices, it wouldn't surprise me to see an increased blanket of secrecy around executive branch programs -- a result that strikes me as an hetical to the spirit of a cons utional democracy.

[Yonivore]

I think there is a danger -- in the slippery slope sense -- in the position that Yonivore contends is the superior position. The notion that an Administration could so burden the facts of a case with claims of needed secrecy that it can effectively avoid judicial review of its actions strikes me as inherently problematic in a government of co-equal branches. In the abstract, the executive branch could offer seriatim rebukes to judicial review of virtually any executive-enacted program by simply claiming that the facts associated with determining the cons utionality of the program are state secrets or otherwise inadvisably made public. Certainly, there are some limitations on that and the right of judges to conduct in camera inspections of fact-oriented material that bears on the propriety of the secrecy claims might mitigate the concern. But if the executive chose to do so, it could essentially insulate its programs from any judicial meddling by being as obtuse as possible about the facts of a program and as strident as possible about claiming privilege. If it succeeds in this context, and in light of this Administration's constant carping about its dislike for judges who don't kowtow to the Administration's policy choices, it wouldn't surprise me to see an increased blanket of secrecy around executive branch programs -- a result that strikes me as an hetical to the spirit of a cons utional democracy.

If there weren't a whole buttload of Islamo-fascists trying to end our way of life, indeed, our very lives, you'd have a point.

Again, name one harmed party resulting from the conduct of the NSA Surveillance programs.

I think the whole thing hinges on the definition of "United States Person" under the statute.

[RandomGuy]

Yup. It is a hallmark of repressive governments worldwide, most notably China, to arbitrarily wave their hands and say "state secret" on things they find remotely embarassing.

Secrecy is NOT the hallmark of good government.

The "secret" energy task force comes to mind immediately.