It shames me a bit to have left the landmark ruling from District Court Judge Anna Diggs Taylor to a cursory first post with no follow-up. If the ruling is upheld on appeal the significance is practically unimaginable. The criminal ramifications alone make the Plame case look like kindergarten. So here goes.
Ad hominem attacks are the easiest blog because for the most part all that you have to do is point them out and they discredit themselves. Let’s catalog the predictable rightwing credibility smears – Carter appointee (Partisan Activist!), barely literate (Mentally Imbalanced!), wants to grant rights to terrorists (Aid and Comfort!) etc, plus a frivolous conflict-of-interest claim from the same people who set a stiff standard for the same accusation when a rightwing-friendly judge (Rehnquist) was in the crosshairs. Too bad justice Taylor is not Promoting a Book or a Disgruntled Ex-Employee.
For a while the legal questions seemed too weedy for me to have much useful to say. However in the last few days Glenn Greenwald, notorious rightwing bugbear and former civil litigator (read: relevant knowledge), clarified the issue to the point where I might be able to explain it without hurting myself. Initially even Greenwald had reservations about some aspects of the ruling:
This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law.
I assume that Greenwald had in mind the same concerns that were highlighted in critical posts by law professors Ann Althouse (also here) and Orin Kerr. Most importantly, the ruling declared undisputed questions that most people consider anything but settled. Many observers took that to mean that Judge Taylor had negligently bypassed important questions which would make an overturn by the 6th Circuit Court of Appeals practically automatic. In fact Greenwald points out in this important post that this line of criticism reveals a basic misunderstanding about civil litigation and the basic facts of ACLU v. NSA.
In a nutshell Greenwald points out that in civil litigation, if the plaintiff makes an argument which the defendant cannot or will not answer then the court is obligated to consider that point undisputed.
Unlike a law professor who searches out “the literature” in order to find every argument on an issue about which they opine, courts — especially District Court Judges — decide issues on the facts and arguments before them, i.e., those that are raised by the parties. If a party does not raise a certain legal defense, then the judge is under no obligation to address it (and it is arguably improper if she does). If a party fails to dispute a particular fact, then it is improper for the court to do anything other than treat the fact as undisputed.
Although a judge might go searching for legal arguments to consider if, for instance, there is a pro se litigant as part of the case, where, as here, the DoJ is before the court arguing in favor of presidential powers, the District Court has every right to assume that the issues raised by the DoJ are the ones that need to be addressed, and no others.
Put simply, it appears that the DOJ never offered any argument that the government did not break the law. Judge Taylor considered these points undisputed for the simple reason that nobody disputed them. Rather the DOJ argued first that the AUMF supercedes FISA, which Judge Taylor took time to swat down and which Hamdan suggests will be a sure loser when it reaches the Supreme Court. Second the DOJ argued that the president’s Article II powers cannot be restricted by Congress, which Judge Taylor also spent considerable time answering. Once again reflect for a minute on how conservatives have finally decided that America should be ruled not by a president but a king. The walls, man, they’re melting.
Beside those two arguments the DOJ apparently bet the farm on shutting down the case with a State Secrets claim. Perhaps the 6th Circuit, if it accepts the case, will hear the substantive arguments that the DOJ chose not to present in Judge Taylor’s court. But on the other hand if the government thought that it had a legally solid case then it seems sensible to present it before they have a humiliating loss under their belt. If the best they have to offer is what they have already presented then it seems unlikely that a sensible court will find enough wrong with Judge Taylor’s decision to overturn it.
That’s unfair, Tim.
I don’t think it’s really a conscious decision. Conservatives are just trending towards their natural political evolution in becoming loyal Tories once again.
Well, as long as it’s *their* king, that is. I agree that is always stunning, but it is key to understanding Ann Althouse’s embarrassing NYT Op-Ed piece today:
You heard it here first, folks. Why should the judiciary branch get to decide what the law is, and not the President? Let’s just let the President tell us what he thinks his powers are under the law! We didn’t really need that judiciary branch anyhow… and, you know, just because the President might decide that he has the power of a king, that doesn’t just make him a hereditary king. Yet.
Of course the one sentence that I hoped to edit quietly gets quoted (pre-edit) by the first two comments. Viva blogging.
Well, he is a hereditary president at the very least, so he is on his way.
I so agree with Greenwald and am appalled at many of the criticisms lobbed at Judge Taylor — incluindg even Reason’s Jeff Taylor on the “king” put-down in her Opinion. Please pardon my shameless act of promoting my own post regarding this whole affair.
Hereditary or not, the source of Bush’s undisputed power to spy on non-Americans outside of the country is from the power of a sovereign. It was the King’s power, and as it does not intrude on the power of any US person and any state of the union, it is not restricted in any way by the constitution.
He can act like a king all he wants to as far as spying outside the country is concerned. He is just not allowed to act like a king by spying on US persons (without a warrant, of course).
The other level of the Bush-King George the XLIIIrd is the argument that the president is above the law, because he is the law/government/authority. This sort of authority was claimed by Nixon, for which he was rightly ridiculed. It has been recycled by Gonzales as the “co-equal branch of government gets to make a co-equal judgment of constitutionality” argument, which is rightly being ridiculed.
James Madison lost that case more than 200 years ago!
If you don’t mind a naive question from a non-lawyer: is it even possible for the DOJ to introduce arguments at the appeals court level that were not made at the district court level when the opportunity was available?
Glenn has been SOOOOO money on this ruling, his blog is absolutely unmatched for accuracy, insight, and bringing all this lawyerly stuff down to my level.
IMO, who really cares if they trash this Judge. She’s done her part. It’s over, for her. The next step has already been decided. They can swiftboat her all they want, if it makes them feel any better, but she aint up for re-election.
The Other Steve
Wow that is embarassing.
The answer is that arguments not made are treated as waived. If the Appeals Court wants to take up an issue they can choose to do so – although they are restrained from finding facts not in the record.
Judicial Activism, you say? You betcha.
The swift-boating is about to get a whole lot sillier. Have you seen Judicial Watch’s latest attack on the judge? I just can’t wait until the wingnutosphere figures out the details that they *didn’t* mention…
I think the body of the text covers what Timmay has said, but the comments, many from lawyers, are invaluable. The breadth of knowledge from many of the posters is incredible.
What chew talkin’ ’bout, Willis?
Tulkinghorn writes: The answer is that arguments not made are treated as waived. If the Appeals Court wants to take up an issue they can choose to do so – although they are restrained from finding facts not in the record.
That’s exactly right, and Jack Balkin(Professor of Constitutional Law and the First Amendment- Director of The Information Society Project at Yale Law School ) thinks Judge Taylor may have been “shoddy” like the proverbial clever fox,, my emphasis:
Beside those two arguments the DOJ apparently bet the farm on shutting down the case with a State Secrets claim.
Bet the farm? Well, they only do that on a ‘heads-I-win, tails-you-lose’ toss. They gamed the system to get one of two outcomes: victory on standing/secrecy, or else a total loss. Their unexpected legal strategy has produced an ‘odd’ and unexpected decision, a perfect pivot point to unleash barrels of slime on the judge who produced it.
It’s unfortunate, because for Diggs Taylor to reach the ‘correct’ outcome in this case, as far as the slimers are concerned, she’d have had to exhibit some terrible judicial bias, by making the prosecution’s arguments for them — that is, by making sure that the case ‘comes out right’ even though the arguments favored one side.
If Plame alone was bad, then this must be at least as bad as Snakes on a Plame.
NO WAY! What do Ellers, Ellensberg, Ellison, and Lambchop think?
She’s a blogger, nimrod.
Link your blog to your commenting name so people know that you’re a blogger.
Link your blog to your commenting name so people know that you’re a blogger.
Oh yeah. Sorry, Jon Henke and the rest of us only got started with this for real about amonth ago, and I’m not quite used to the “I’m a blogger now” thingie.
I think the biggest gamble the DOJ took is their decision not to respond. The judge gave them three opportunities to include an opportunity for an oral rebuttal – in other words, well beyond what was required.
So they’re gambling the sixth will choose to hear it as though newly presented – blank slate, start from scratch, etc.
That’s what I’m waiting to see – how the sixth chooses to hear the appeal. If it’s de novo, the appeals court is probably going to support the government’s position. If it’s on the record, it’ll be the government appealing further to the supreme court.
Oh – one twist. I would be unsurprised to see an en banc court, whether as first appeal or as a review of the decision.
Nice post. Seriously.
And from what I gather, a libertarian, and certainly not a liberal one at that. Sadly, there went Mac’s entire take down of Mona’s comments.