Experts Fault Reasoning in Surveillance Decision

[cal04]

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

http://www.nytimes.com/2006/08/19/washington/19ruling.html?hp&ex=1155960000&en=359d009508f66aa4&ei=5094&partner=homepage

[bluerum]

1. My understanding was that the lawyers for the government would

not present any evidence that could demonstrate why this program was vital to national defense. The judge simply said that national defense is not on trial here, the legality of spying on Americans without a warrant is.

Of course there is discomfort with the decision. They are guilty as hell and the hammer is coming down.

This whole article stinks of one of Karl Roves whispering campaigns.

[countmyvote4real]

2. I wonder how much we the people paid for that placement? n/t

[Kagemusha]

3. Note how the quoted part never argues the decision is wrong.

Rather, that it is right, and the judge simply didn't prove just how right it was, treating the rightness as largely self-evident because of the plain language of the Constitution and the history of American jurisprudence, not since Hamdan, but since amendments 1 through 10...

[Igel]

12. The RWers argue it's wrong.

But posting something saying that conservative lawyers disagree with the decision and its reasoning wouldn't really mean much.

Saying that lawyers that could easily be DUers and agree with DUers on lots of issue find its weak ... a bit more meaningful.

[Kagemusha]

13. "Weak" and correct is still correct.

We'll see what the appeals courts think...

[truthisfreedom]

4. NYT, explain her circular reasoning? bushco uses circular reasoning to

thwart the law now.

[krispos42]

19. They use circular reasoning to keep us in Iraq!

Remember that ad they ran earlier in the year?

<coda> We're in Iraq fighting terrorists. Yes, but they were not there when we invaded. But they are there now, and if we leave they will start attacking America directly. No they won't; most of the people killing us are partisans and guerillas fighting a foreign occupier, i.e., us! But they are being trained by foreign terrorist leaders, who will recruit the best and most hateful into their international organization. But the longer we're there, the more Iraqis will join the partisans, thus enlarging the pool of people that will be recuited into international terrorism. Exactly, so therefore, we're in Iraq fighting terrorists. <d.s. al coda ad nauseum>

[stepnw1f]

5. lol..."Even legal experts"...as if (nt)

[lovuian]

6. What it means is the FBI is ilegally tapping citizens phones

and those who continue to tap may go to jail... even if their boss Gonzalez says its ok...

FBI employees need to follow the law...

[The Witch]

7. We publish Bashman all the time.

He likes to shoot his mouth off - his columns have a 50/50 chance of being brilliant or ridiculous.

("We" = the paper I work for. I can't say more w/out risking my job.)

[bluerum]

8. nice broom

[bluedeminredstate]

9. Again the NYT must make both sides equal in the debate

Discomfort with the quality of the decision is almost universal , said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.
“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

I's like to know how many experts the Times spoke with and how many this Bashman guy polled to come up with a statement that discomfort with the Judge's ruling was ALMOST UNIVERSAL. I just can't buy that without knowing what and who's "universe" they're talking about.

I love how the Times covers their ass by saying this guy is nonpartisan. Based on what criteria? After Whitewater and Paula Jones, not to mention Iraq, we know what kind of information they'll take and distribute no matter who is saying it, and try to pass it off as "impartial."

The final insult is a nice slap at the judge with the "not strongly grounded in legal authority" quote. I don't recall them getting this worked up over the Supreme Court's Bush V. Gore decision which had legal scholars all over the nation castigating the court for a decision they made up to fit the outcome they wanted. Talk about not grounded in legal authority...

Reporting both sides of the argument doesn't mean you have to give them equal weight which the NYT and other papers do all the time. Even with indisputible facts, they won't call a conservative position wrong. Ever. They'll compare it to the other position as though we're talking about opinion and not fact.

I gave up on them a long time ago but hubby still wants to read it so I pay a small fortune every month for their bullshit.

:mad:

[OnyxCollie]

10. That's total bullshit.

Nothing about the wiretaps is "strongly grounded in legal authority."

The AUMF did not give approval to eavesdropping on Americans, no matter what Bushco tried to force in at the last minute.

The general (AUMF) does not trump the specific (FISA).

Hamdi v Rumsfeld did not give any credibilty to their argument.

50 US Code §1809 of FISA states that FISA and the Omnibus Crime Control and Safe Streets Act of 1968 (Title III) are to be the exclusive means for wiretaps "except as authorized by statute." The AUMF is not that statute.

The three provisions in FISA that allow for unwarranted wiretaps have either not been met, are no longer viable, or have not been pursued.

Due to the separation of powers, Bushco is not a lawmaker.

Bushco cannot issue a signing statement to the Constitution.

This is spin, nothing more.

Rot in Hell, motherfuckers.

[teryang]

11. Anyone have a link to the decision?

I'd like to read it.

[Kagemusha]

14. Ask and ye shall receive

http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf

[lumpy]

15. Kick

Another appeals lawyer that that turns legalities upside down around and around. Also makes broad assumptions re.legal 'experts'. Oh yes, Bush has his minions in the law business. The dumbest one of course is Gonzo who's sitting in the AG's office twiddling his clumsy thumbs. Upholding the Constitution he ain't. This is a fight, folks, for Constitutional rights and if the judges ruling is undone, then kiss your rights goodbye.

[teryang]

16. Thanks so much for the link to the decision

Poorly written? Poorly reasoned? I don't think so. Proponents of unchecked executive power just have a problem with the rule of law.

[Kagemusha]

18. Glad you think so. Glenn was very uplifting today, too

confirmed to me my earlier comments were dead on: a "thin" decision that is correct will nonetheless be upheld because the appeals court/ Supreme Court will apply their own, independent legal reasoning to the problem and likely craft much firmer decisions because, well, the judge's right on the law. Of course we hope that courts will uphold this. But they do NOT just throw out "poorly written" but correct decisions.

Apparently if they did, if you think courts have backlogs now.. ouch.

Also, though, the DoJ arguments were themselves weak and largely focused on "You Can't Handle the Case" arguments. (Should have a link in the update to Glenn's latest post as I write this very very early Sunday morning on the East coast.) Judges deal with the arguments and facts placed before them. The DoJ not choosing to place stronger ones before this judge means she treated their case with the contempt it deserved.

Though originally the DoJ's arguments were under seal because they expected the whole case to be thrown out (which didn't happen, ergo, they were in deep doo-doo). This is one reason I dislike secret arguments. Not that the lambasters of the judge bothered to check later.

[Sgent]

17. I haven't seen

any civil rights attorney's who particularly like the decision from a technical. From Greenwald, to Brayton, to Orin Kerr, no one particularly thinks this was a well reasoned, researched, opinion.

Everyone supports the decision on the merits. The problem is that a poor decision leaves itself open to being overturned.

[happydreams]

20. Holy Shit!!! Repukfascists are upset on lack of "reasoning"!? As in logic?

As in scientific process?

WOW!!! They must be furious with the legal reasoning behind the pre-emptive war in Iraq based on lies and nothing but lies.

Origin of the Specious. :eyes: