It is good news that, along with her opinion in the case of American Civil Liberties Union et al. v. National Security Agency et al., United States District Judge Anna Diggs Taylor issued the following judgment on the NSA warrantless surveillance program:
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;
However, before there is too much celebrating, there are two weaknesses with this result so far.
The first is that the Bush Administration will undoubtedly appeal this ruling and, somewhere up the chain of command, he will certainly get to a judge or set of judges that he appointed who will accept the Bush Administration’s view that the President alone has sole authority to make, enforce, and judge the law.
The second is an issue that is too often overlooked in judicial decisions. Judges are supposed to render decisions on what the law does and does not say. They are not supposed to infuse their interpretation of the law with their own beliefs about what the law should or should not be. That is to say, a judge has an obligation from time to time to reach a judgment that says, “This is a bad law, but it is the law, and thus it is my decision.”
The people, on the other hand, are under no such obligation and tend to be a lot less reckless in this regard. Talk to any private citizen about any judicial decisions and you will find a very close match between what he things the law actually says and what he thinks the law should be. In fact, it is not unreasonable to hold that a vast majority of the time a person who comments on a judicial decision begins by making a judgment as to what the law should say, and proceeds from there to render an interpretation of the law that “coincidentally” (not really) brings the interpretation of the law into the speaker’s normative judgment.
The problem with this is that when a judge renders a decision that the people do not like, most people rush to the ill-founded conclusion that the judge did not interpret the law correctly. A fair assessment of the public train of thought would report it as being something like, “You did not reach a decision that conforms to what I think the law should be; therefore, your decision sucks and you are a poor judge.”
This immediately sets in motion a movement to replace those “poor judges” with those who are capable of interpreting the law correctly. That is to say, not according to what the law actually says, but according to what those who are passing the judgment want the law to say.
When we have good laws that are correctly enforced, it is not sufficient to say, “This is the law.” Anybody who has a genuine interest in the defending the law must go further and say, “This is the law, and it is a good law.” The judge in the case cannot add the latter part – this is not a part of her job. In fact, it is her duty to leave those judgments out of their opinion. Because they cannot include this part, we must make an extra effort in that regard, if we have an interest in making sure that the law stands.
I suggest that this is a significant strategic mistake that secularists make with reference to the First Amendment and the separation of church and state. They are quick to point out that particular actions are a violation of the First Amendment and, as such, they are against the law. However, far too often they stop there and fail to add much in the way of defending the claim, “…and it is good law.” Consequently, theocrats who dislike the idea of separation of church and state have not been sufficiently challenged when they claim, “…and it is bad law.”
The propaganda on this issue then takes a natural progression. First, a substantial portion of the population is convinced, “…and it is bad law.” Second, they apply their natural disposition to interpret the law so that it appears to them to be good law. This then brings them to believe that the best and proper interpretation of the law is that interpretation which denies separation of church and state and denies the church the legal right to establish themselves as the state religion.
No doubt, there are conservative pundits who are going to start making claims that can be reduced to, “Because of Judge Taylor’s decision, AL-QUIDA IS GOING TO WIN AND WE ARE ALLGOING TO DIE!” This form of propaganda will have the effect of convincing a number of people that the law ought to allow these types of warrantless wiretaps. This means that any decision that these types of wiretaps are illegal is a bad decision and the judge who makes it is a poor judge. Anybody who wants to defend the law needs to say more than, “See, what Bush did was illegal.” They have to say, “What Bush did was illegal, and it was a good law”
Since this is an ethics blog and not a legal blog I have been focusing more on what the law ought to be than what the law actually is – recognizing the fact that the two sometimes deviate.
The greatest argument in favor of separation of powers arises from the fact that the most evil tyrants typically think of themselves as moral saints who have perfectly good reason to do what they do. Even Hitler believed that he was a great man serving a cause much higher and more noble than himself – in his case, serving the Arian Race. The purpose of a system of checks and balances is to put a check on one person’s (or one group’s) inability to see when they have crossed a moral line. To do this we say to them, “You must present your plans to somebody else so that they may judge whether you have blinded yourself to your own moral transgressions.”
As I have written in the past, the purpose of obtaining warrants is not to prevent the government from spying on Al Quida and other enemies who threaten our safety, it is to make sure that the government is directing its powers to spying on Al Quida and other enemies who threaten our safety.
It is far too easy for a leader to decide that anybody who gets in his way, who threatens or questions him, is “an enemy of the state” and to treat them accordingly. It is far too easy for those who work for a leader to be tempted to use the powers at their disposal to think of personal and professional opponents as threats to national security. Therefore, it is essential that somebody look over their shoulder to make sure that the people they use the powers of their office to target and destroy are truly enemies of the state.
If an administration is worried about somebody looking over their shoulder to make sure that they are targeting the nation’s enemies and not their personal enemies with these powers, we have reason to ask, “What do you have to hide?”
It is, of course, imprudent to demand that they post information on these clandestine activities for all of us to see. This is why courts such as the FISA courts are established. They provide a way for us to appoint somebody to look over the Administration’s shoulders while still keeping legitimate activities secret. It is a reasonable compromise what satisfies the Administration’s obligation to go after this country’s enemies, while satisfying our need for security against an Administration that might otherwise use these powers against their political opponents and personal enemies.
Judge Taylor’s decision in this case tells us what she thinks the law actually says. If she is right, then these limitations on Presidential power are not only the law of the land. They are also good laws.
Other posts defending the idea that this is good law include: