Over at The New Republic, Richard Posner has a piece on the NSA surveillance program that includes this provocative paragaph:

Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation's defense, and its impingements on civil liberties are slight. That would not prove the program's legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry. We would search harder for grounds to affirm its legality, and, if our search were to fail, at least we would know how to change the law--or how to change the program to make it comply with the law--without destroying its effectiveness. Similarly, if the program's contribution to national security were negligible--as we learn, also from the Times, that some FBI personnel are indiscreetly whispering--and it is undermining our civil liberties, this would push the legal analysis in the opposite direction.

  I find this paragraph rather peculiar. It seems to me that several different questions might be asked about the legality of the NSA surveillance program. First, there is a descriptive question: Is the program consistent or inconsistent with existing law? Second, there is a predictive question: How would the Supreme Court likely rule if presented with this question? Third, there is a normative judicial question: How should a judge rule on the legality of the NSA program if it came before him? Fourth, there is a normative policy question: Is the program effective enough that the law should allow it?

  Posner, being a pragmatist appellate judge, is naturally interested in the third and fourth questions. Indeed, his argument is that the answer to the fourth question should inform the answer to the third question. But I think Posner is wrong to dismiss the importance of the first two questions, and especially the first one. A lot of people are interested in knowing whether the Bush Administration bent the rules to allow this program, and if so, how much. Some will condemn any rule-bending as lawless rule-breaking, while others will applaud it as appropriate aggressiveness needed to wage the GWOT effectively. But in both cases, assessing the legality of the NSA program as a "Platonic abstraction" serves an important political function: It gives people information about whether any rule-bending occurred, which individual citizens can use as they wish to inform their view of the program as a whole. It's not the only question, of course, and it may not be of particular interest to a federal appellate judge. But I do think it's an important question.