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.