August 18, 2006, 1:55 a.m.
Judges, Politics, and Security
The awful NSA decision proves, once again, that they don’t mix.
By Andrew C. McCarthy
It would be wrong and regrettable, but it is certainly conceivable that the Supreme Court will eventually find the Bush administration’s NSA Terrorist Surveillance Program unconstitutional. One thing is certain, though. Such a ruling by the high Court will not rely on the handiwork of Michigan federal district judge Anna Diggs Taylor. Her effort yesterday to invalidate the program is a transparently political screed.
Judge Taylor last garnered national attention in 2002 when she was caught trying to rig the outcome of an affirmative-action case. Now, this relic of the Jimmy Carter twilight has fixed her gaze on a war against ruthless enemies who have already attacked the United States massively, serially and globally — an enemy whose leadership is unabashed in telling us, repeatedly, that its devout mission is an exponentially more devastating reprise of 9/11’s carnage.
And what does this jurist see? What she calls “the War on Terror of this administration” — not of the American people, but of George W. Bush — which “[p]redictably” seeks to evade judicial review.
Yes, here we have the thematic history of the administration that has fought to defeat jihadists … as told by a vestige of the administration that first empowered jihadists.
Judge Taylor obviously remains every bit the innovator she was when she creatively contorted the rules for impartial assignment of cases to steer that little school admissions matter away from a judge who, she apparently fretted, was not an ideological fellow traveler. (She backed down when the judge complained publicly about her “highly irregular” gambit.)
After all, who knew that lurking in the penumbras, unnoticed lo these two centuries, has been a First Amendment right to communicate privately overseas, in wartime, with enemy operatives plotting to murder Americans?
To arrive at this novel (ahem) discovery, Judge Taylor simply needed to blow past the long-settled law of standing-to-sue, as well as about 150 years of precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.
For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.
In the real system of separated powers devised by the Framers, the courts of the United States had no role — none — in defending this nation from foreign threats. That was to be the job of the president and the Congress, which is to say, the officials actually accountable to the citizens whose lives were at stake.
While Judge Taylor bleats about the need to respect “checks and balances,” the check our system has designed for national-security matters is political, not judicial. It implicates the right of all citizens collectively — the body politic — to self preservation. It is not concerned with such comparative trifles as the insatiable idio-obsessions of “activists” and gadflies — however theatrically petrified they may seem over the possibility that, for example, their “right” to shoot the breeze with Ayman Zawahiri might be “chilled” if the NSA lends its ears … along with an audience that already includes every foreign intelligence service on the planet.
The standing rules that Judge Taylor shunned are there for a reason. It is not a legalism. It is not some abstruse jurisprudential technicality that you’d need an Ivy League law degree to decipher. It is about the right of the American people to govern themselves.
Courts are not there to tell us how to live and tell the other branches how to do their jobs. They are there to redress concrete injuries that directly and uniquely affect individuals. If there is a government policy — such as monitoring al Qaeda’s international communications — that affects all of us more or less the same way, that is not a legal problem. It is a political issue.
Political issues get resolved by political actors. Here, the Framers trusted Americans, not judges. If a president tilts too far in the direction of either civil liberties or national security, the Americans who are consequently imperiled or intimidated have the final check. They can vote him out of office. If the president really shreds the Constitution (as opposed to using his daunting Article II powers to quell enemies and save American lives), citizens can spur congress to impeach him.
Congress, meanwhile, can convene hearings, summon experts, make findings, and enact laws which balance liberty and security. If legislators believe a national security initiative goes too far, they can end it by de-funding it … and face the wrath of their constituents who may well decide that increased safety is worth sacrificing some privacy — hypothetical privacy, by the way, as most Americans aren’t all that interested in chatting privately with Zawahiri.
Democratic self-determination and political accountability — that is the Framers’ gift to us.
Now, here’s what we’ve traded it in for: In the role of Everyman, meet the American Civil Liberties Union, the Council on American-Islamic Relations, Greenpeace, the National Association of Criminal Defense Lawyers, and other self-styled “public interest” groups which, in reality, have very different ideas from the public about how our government should prosecute a war it is in our nation’s vital interest to win.
And in the role of decision maker, meet Judge Taylor — worse than her sponsor, President Carter, because we are powerless to vote her out of office when she enters the political arena and renders us defenseless.
The president of the United States needing Judge Anna Diggs Taylor’s permission to penetrate the communications of a hostile alien terrorist network scheming to slaughter Americans. That was not exactly what Madison had in mind.
— Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.
article.nationalreview.com |
