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The New York Times Praises the NSA Eavesdropping Decision:

Orin points me to today's editorial, which says (among other things) that "The ruling eviscerated the absurd notion on which the administration's arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan," and refers to the "careful, thoroughly grounded opinion." Whatever the merits of the Times' substantive arguments, it seems to me hard to justify calling the opinion "careful" and "thoroughly grounded," for the reasons various people (including Jack Balkin, Orin, and me, see the posts below) have noted.

UPDATE: Commenter Kazinski rightly points out another problem in the Times editorial. The editorial says:

The ruling eviscerated the absurd notion on which the administration's arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.
Is that quite a fair way of characterizing the AUMF, which hardly limits itself to Afghanistan, but instead says the following?
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it [r]esolved by the Senate and House of Representatives of the United States of America in Congress assembled, ...

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons....

williamandmaryalum (mail):
When I read the Times editorial this morning, I almost couldn't believe it. The Washington Post - another liberal editorial page - correctly criticized the opinion's reasoning. Why must the Times always take the liberal line against President Bush? Wouldn't it better serve their interests to offer balanced coverage of the NSA opinion?
8.18.2006 1:48pm
JunkYardLawDog (mail):
The Times has not had any credibility on political matters since at least 2000. They are a laughing stock. They have gone from the supposed "Newspaper of Record" to a "Record Of Lies".

It bothers them not even when their lies are so obvious to anyone but the Al Sharpton/Maxine Waters crowd.

Says the "Dog"
8.18.2006 2:08pm
Jim C. (mail):
I think the answer to williamandmaryalum's questions is that the people who write editorials for the Times are embarrassingly stupid. The Post's editorials are almost equally liberal but vastly superior in every way -- as thoughtful, mature, and informed as the Times's are shrill, bullying, and ignorant.
8.18.2006 2:25pm
Christopher Cooke (mail):
I agree that the Judge's decision is not "careful." I guess the NY Times just likes the result (the WSJ editorial page is similar in praising court decisions that fit within its political framework). In fact, I would say the opinion is almost the exact opposite of being careful: it is recklessly strident in expressing its views.

An example of a careful opinion, albeit "liberal" in result (if by that we mean, pro-civil liberty), is the Hamdan decision by Justice Stevens. Outside of the constutional law context, I thought Judge Thomas Penfield Jackson's decision in the Microsoft anti-trust case to be careful and masterful (too bad he blew it by talking to the press).
8.18.2006 2:30pm
Kazinski:
Does anyone take the NY Times seriously anymore? Take for example the quote EV excerpts, the Times mistates AUMF comepletely, it does not even mention Afghanistan:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


And that is precisly whom the Judge says in her opinion the Adminstration is targeting:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
8.18.2006 2:30pm
PabloF:
Similarly, the LA Times editorial about the decision found that that the decision "convincingly rebuts two of the Bush administration's legal positions: that the president has the inherent constitutional authority to engage in surveillance of Americans, and that Congress approved such eavesdropping in 2001 when it authorized Bush to use 'all necessary and appropriate force' against individuals and nations implicated in the 9/11 attacks."

It never ceases to amaze me how certain newspapers will reflexively praise a poor opinion that happens to reach the result they favor. The editorial boards of the LA Times and NY Times simply have no credibility in my view.
8.18.2006 3:02pm
Bruce Hayden (mail) (www):
I agree with the previous posters. I have seen plenty of pretty good arguments about why the NSA TSP is illegal, esp. here at volokh.com, but I didn't see them yesterday in that opinion. For example, the NYT article suggests that the AUMF argument was eviscurated. But the logic used in the opinion would also seem to result in the AUMF not being applicable to Hamdi.
8.18.2006 3:15pm
Lincoln (www):
I find it curious that the plaintiffs (along with the judge) who I expect would normally view the Constitution as a "living document" that should evolve with the times, have now suddenly decided that the Constitution should be viewed in a more constructionist light.
8.18.2006 3:30pm
fishbane (mail):
Interesting take on possible strategic advantages of the opinion at Balkinization.

And the thread wouldn't be complete without reference to How right wingers read the NY Times.
8.18.2006 3:33pm
Medis:
Of course, newspaper coverage of court decisions is almost always terrible.
8.18.2006 3:37pm
Henri LeCompte (mail):
It is amazing how utterly reactionary the New York Times has become. They don't know what they think until they know what Bush thinks... then they're against it.

Just as a stopped watch is right twice a day, can't President Bush be right every once in a while? Even if it is only by random accident?

It worries me. I don't think it is good for our country to have a major media outlet, like the Times, be so viscerally contemptuous of our President.
8.18.2006 5:42pm
Third Party Beneficiary (mail):
"It is amazing how utterly reactionary the New York Times has become. They don't know what they think until they know what Bush thinks... then they're against it."

So you apparently didn't read any NYT coverage on Iraq Summer 2002 to Spring 2003, eh?
8.18.2006 7:51pm
Ship Erect (mail) (www):
Just as a stopped watch is right twice a day, can't President Bush be right every once in a while?

A certain NYT reporter went to jail for a fair stretch to hide the illegal actions of a White House staffer. I'd much rather have the NYT be against the Prez if this shows how they agree with him.
8.18.2006 10:28pm
Failed Policy:
I find it interesting that every entry on this matter does not address the language in the AUMF itself, and the reasons for the "check" on the executive office provided in the 1978 eavesdropping statute. The fact that congress specifically included, "necessary FORCE" and not "necessary MEANS" is significant. If Congress truly intended to provide the Bush administration carte blanche in ignoring Congressional law, the word "means", or something akin to "means" would have been substituted for "force", and the eavesdropping statute would have been most likely rendered moot. "Force" connotates the use of the military, not domestic, unchecked eavesdropping. This check on the Bush administration is very necessary, especially for an administration that, in the view of John Dean, makes the Nixon administration look like boy scouts.
8.18.2006 11:12pm
David M. Nieporent (www):
Failed Policy: I don't think so.

While I tend to agree that the AUMF cannot be read broadly enough to repeal FISA as it applies to this program, your force/means distinction is too strained. By your argument, Congress wasn't authorizing Bush to, say, intercept Bin Laden's communications with Zawahiri in Afghanistan.
8.19.2006 7:13am
Failed Policy:
David:
I included "domestic" eavesdropping in my post, not eavesdropping on Bin Laden's communciations on foreign soil. I have not read the eavesdropping statute thoroughly, but I do know that a special "magistrate" is assigned to sign off on domestic eavesdropping warrants. I am not against eavesdropping/survelliance on suspected operatives within the United States. I am 100% for complete cooperation between the intellegence/investigative agencies to root out and arrest such opperatives, and to use all means at their disposal, including extensive eavesdropping. What I am against is Bush's viewpoint, or I should write, David Addington's viewpoint, that the executive has exclusive authority to eavesdrop on domestic communications without judicial oversight. It is a very slippery slope to conclude that the Bush administration does not have to follow carefully crafted law over the last 200+ years just because we are "at war with terror".
8.19.2006 1:41pm