Posted by Lex, on August 17, 2006
Your correspondent was going to try to cobble something together on the topic of that Detroit federal judge’s ruling that the administration’s international “wire-tap” scheme – the “TSP,” or Terrorist Surveillance Progam – was in violation of the Constitution. Casual skimmers of the news have learned that district judge Anna Diggs Taylor ruled that the program conflicted with the first and fourth amendments specifically and the separation of powers clause more generally. The judge apparently feels that FISA – normal legislation – can statutorily limit the Commander-in-Chief’s Constitutional powers in the execution of his own Article II (thanks to JPS, who proves a subsequent point) second amendmentresponsibilities. Even when those inherent powers are amplified by a Congressional Authorization on the Use of Military Force.
I was going to post on that until I realized that 1) I’m not a lawyer, 2) several reliable readers are as is, 3) Eugene Volokh (and many of his commenters) who offer reasons why her decision may well be overturned on its inevitable appeal, and finally 4) while Goldstein isn’t a lawyer either, he’s funnier than me:
Even still, it’s amazing that we’ve reached the nuance point where only by revealing secrets can we show the the secrets in question should not be revealed, lest they damage programs meant to protect us from attacks, which only work while details of how they work remain secret.
Perhaps we can just tie stones to the NSA program, put it in a lake, and see if it floats. If it does, it is clearly unconstitutional and should be hanged. If it drowns from the weight of its own revealed legality, everyone will know for certain that it wasn’t, in fact, unconstitutional. Which, helluva lot of good that does us, sure.
So, unwilling to shine my saddle interface by illuminating the depths of my ignorance, I’ll instead share a brief conversation I had with an old squadron mate I ran into at lunch:
Me: So, are you still flying?
Him: Yes, and although it’s fun, I’m sometimes finding it hard to keep up with some of the JO’s – especially in the air-to-air stuff (wiggles his fingers on invisible stick and throttle, simulating HOTAS use).
Me: Yeah, I guess we’ve finally turned into those old guys we used to hate when we were JO’s.
Him: Exactly. But I can fly red air support, as the wingman. That’s not too demanding.
Me: You know, after TOPGUN and my adversary tour, if I never flew another bogey wingman hop again it would suit me right down to the ground. Just not a lot of new experiences in that for me anymore.
Him: I know. But you know what else? While all the young guys just want to fight, I am getting to drop a lot of ordnance. You know: Blowing stuff up.
Me: And that never gets old.
Him: True. True.
Where else are you going to find this kind of stuff?
Update: Too good not to mention – in the WaPo article linked at the top, the ACLU’s Executive Director Anthony Romero called the judges ruling, “yet another nail in the coffin of the Bush administration’s strategy in the war on terror.”
Good to know he’s on side for the big win. The other side.