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Should We Care About The Reasoning In Judge Taylor's Opinion? :
Glenn Greenwald has a post responding to the Washington Post's editorial on Judge Taylor's NSA opinion, and in particular criticizing the Post (and many others, including Eugene) for criticizing its reasoning. He writes:
  What really matters, says the Post in its unbelievably petty editorial, is not the profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law and has been exercising that power aggressively and enthusiastically in numerous ways over five years. No, that is merely a fascinating intellectual puzzle, something for super-smart experts to resolve with great civility and high-minded, complex discussions as they ponder what the Post calls the "complicated, difficult issues" raised by the administration's lawlessness.
  To the Post, what really matters here is how impressed law professors are with the complexity and nuance in Judge Taylor's written decision. Condescendingly scoffing at the judicial quality of her opinion is of infinitely greater importance than objecting to the growing extremism and lawlessness to which our country has been subjected. * * *
  In the scheme of the profound issues our country faces, obsessing about the inartfulness of this judicial opinion is not unlike those who use a laughably grave tone to write articles about fights between Daily Kos diarists or the latest blogger "scandal" while ignoring our national media's grotesque failure to scrutinize meaningfully our government's conduct and claims — particularly on matters of war and peace or threats to constitutional liberties.
  There is nothing commendable or impressive about always being restrained and muddled and ambivalent in one's tone and views. It is not a sign of intellectual prowess to be open-minded to frivolous claims or corrupt and dangerous behavior. And when the claims are particularly frivolous, and when the corruption and dangers reach a certain level of severity, self-important ambivalence — hospitality to extremist ideas and systematic government law-breaking — is actually irresponsible, reckless, and morally and intellectually bankrupt.
  Two responses. First, the issues raised by the NSA domestic surveillance program are not easy. Granted, I think that the Administration's published legal defense of the program is weak. But that doesn't mean that the program is illegal; the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don't know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don't know enough of the facts to know if the program violates the Fourth Amendment. I can recite the arguments, but without the facts I can't tell.) And the legality of the NSA domestic surveillance program was a part of Judge Taylor's opinion, but only a part, as most of the opinion was on procedural issues such as the state secrets privilege and standing. Greenwald is right that "it is not a sign of intellectual prowess to be open-minded to frivolous claims." But it's also not particularly helpful to be close-minded to difficult ones.

  Second, isn't the gist of Greenwald's argument somewhat similar to the arguments that the President's most zealous supporters have been making all along? In their case, of course, they have made such claims in response to criticisms of the Administration's legal defense of the NSA program, rather than in response to criticisms of Judge Taylor's opinion striking it down. But you've seen the argument many times, including in many VC comment threads: Rather than dwell on the "fascinating intellectual puzzle" of whether the NSA program is legal, we should focus on the really important question of defending the country against terrorists. In other words, stop quibbling over little legal issues and get back to the big picture. To be fair, this is often a very legitimate argument; legal niceties aren't everything. But it's not obvious to me why we would reject this advice when analyzing the DOJ's defense of the program but not when analyzing Judge Taylor's opinion striking it down.

  UPDATE: After drafting this post, I note that Greenwald has an update further explaining his point, in which he suggests (I think) that his point is that even if the criticisms of Judge Taylor's opinion are fair on the merits, it is somehow inappropriate. In his example, Greenwald suggests that criticizing Taylor's opinion is like seeing an assault and complaining about the unpleasantness of a victim's cry rather than the assault itself. While I appreciate his willingness to attempt to clarify the point, I'm not entirely sure how that clarifies the post. And I don't find the analogy persuasive.
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