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Alito’s Horrifying Opinion

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1. The only really important point in this post.

It is crucial to remember that this disgusting diatribe is the real opinion of Alito and his co-conspirators. They intend to force you to submit to this power grab and all the sickening changes it makes in our democracy. To them the opinions, the morals, and the sense of civic virtue of the vast majority of Americans are meaningless. Only they and their tiny minority are right.

The formal opinion may be substantially different in form, maybe even to some extent in substance, but this is the unvarnished opinion of Alito, Thomas, Gorsuch, Barrett and possibly Roberts. Do not be fooled by a milder version of this screed. Do not forget they will happily hand you over to the Red State version of the Inquisition.

2. Alito is a bad judge.

Alito’s draft is an attack on judging as a human intellectual activity. It’s an assault on the very nature of good judging. In the less important part of this post, nearly unimportant, I explain my thinking on this point.

Here’s a summary of Alito’s opinion, selected sentences from the beginning of the opinion.

1. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions (my numbering and paragraphing).
…
2. In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish.
…
3.The Con­stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, in­cluding the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s his­tory and tradition” and “implicit in the concept of ordered liberty.”
…
4. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Therefore they reverse Roe v. Wade and while they’re at it, they reverse Casey v. Planned Parenthood; and say that the standard for review of a state law concerning abortion is whether there is a rational basis for the law.

Here’s a summary by Jeanne Suk Gerson in the New Yorker, laying out the general form of the argument.

Let’s begin with this question: at this time two years was there a Constitutional right to an abortion as set out in Roe and Casey? The answer is clearly yes. The proof is that courts enforced it, and people complied. It can’t possibly be that Alito’s decision, in whatever form it is finally rendered, makes it so that there was never a Constitutional right to an abortion. The Constitution is what five people say it is. The majority in Roe and Casey both said there is a Constitutional right to an abortion, and so it was.

Lots of SCOTUS cases are wrong at least to a large number of people. Why is it necessary to overrule this one? Why not leave it in place, even if Alito and his allies don’t like the reasoning. Alito doesn’t address that question. Stare decisis and reliance on precedent are crucial elements in judging. They give stability to our law.

Consider, for example, Plessy v. Ferguson and Brown v. Board of Education. In overruling Plessy, the Brown Court found that separate schools for White and Black kids seriously damaged Black citizens in ways that didn’t exist at the time Plessy was decided. Changes in society were so great that separate was inherently unequal by the time of Brown. Therefore it was necessary to overrule it.

How does Alito explain why Roe should be reversed? This is all I can find:

Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Overturning Roe will also have terribly damaging consequences. A good judge would address this plain fact.

One possible answer is that Alito is a true believer in originalism, a theory created by conservatives to combat the Warren Court’s “liberal” decisions. He believes that there is a True Constitution from which all law springs. That law is encapsulated in the public meaning of the words in the Constitution as they were understood at the time of adoption. Alito and his colleagues are guardians of that True Constitution, and it’s their sworn duty to insure that it is not distorted by bad cases. Using that theory, Alito can and must speak truth about the Constitution, regardless of the consequences. As he puts it:

The Casey plurality was certainly right that it is important for the public to perceive that our deci­sions are based on principle, and we should make every ef­fort to achieve that objective by issuing opinions that care­fully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision.

“Proper understanding”? Concerns about “the public’s reaction”? His “work”? For Alito judging isn’t about people, or society. Real judges don’t act like that. Let’s see what traditional jurisprudence says about judging.

In a paper titled Logical Method and Law (1924) the American pragmatist philosopher John Dewey describes good judging. He quotes Oliver Wendell Holmes from a paper on agency law in The Collected Legal Papers, p. 50.

… the whole outline of the law is the resultant of a conflict at every point between logic and good sense — the one striving to work fiction out to consistent results, the other restraining and at last overcoming that effort when the results are too manifestly unjust.

Dewey’s pragmatic theory is that the act of thinking only occurs in the face of doubt. At that point we are forced to proceed to inquiry. Over centuries of trial and error that continue to the present, we human beings have developed ways of investigating and collecting information, evaluating it, checking and rechecking, and ultimately forming conclusions. Then we observe the results and make adjustments to achieve our goals in the best way possible, knowing that we cannot be sure we are right. This method, more fully developed in other writings, applies to solving the problems presented to judges.

I read Dewey to say that judges should start with inquiry, and collect the facts in the messy circumstances of the case before them. As they do so they reach tentative conclusions about the best solution to the problem presented. Then they consider the general legal principles which might act premises for forming a conclusion that will be best for the case in front of them. He thinks inquiry is a logic of consequences, not antecedents. Once the consequences become reasonably clear, it is possible to consider relevant general principles. The selection of the relevant premises becomes crucial only at that point. We’ll see that when we see the dissents which we can expect from three members of the Court.

Then the judge writes down an explanation based on the general principles and tries to justify the decision. This logic is different from the logic of inquiry and the formation of conclusions. It is designed to appear as impersonal as possible while being persuasive. That’s why formal syllogistic logic is the model for many opinions. It conceals the messy process of inquiry, and it hides the uncertainty which has to exist in all really hard cases.

To see how Dewey’s thinking works in practice I turn to a modern thinker and appellate judge, Richard A. Posner. In a paper titled Pragmatic Adjudication Posner writes

But if his definition is rewritten as follows-“a pragmatist judge always tries to do the best he can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past” — then I can accept it as a working definition of the concept of pragmatic adjudication.

He explains that the function of precedent is to provide the current judge with information and principles that might be helpful in deciding the current case. The point is that precedent does not supply Judges with a single answer to the determination of the proper rule to govern the case before them. Judges should consider sources that help understand the wisdom of the possible rules. The role of the judge is to end the fiction when it conflicts with good sense.

That’s what Alito doesn’t do. In this opinion, the question is whether Roe and Casey should be reversed. But Alito doesn’t explain why overruling Roe and Casey is better than leaving them in place even though the reasoning in his view is flawed.

Let’s grant for the sake of argument that Roe “had damaging consequences”, which Alito asserts as a fact with no evidence. It also caused heart-burstingly wonderful outcomes for millions of living women and their families. Why doesn’t Alito consider that benefit? He doesn’t explain why reversing Roe and Casey is the best outcome for the present and the future; in fact he says that isn’t relevant.

In my jurisprudence, he would at least address it. In his, it’s irrelevant, trivial, meaningless. For me and the majority of Americans, Alito’s originalist fiction imposes an unjust outcome with no explanation. It can only be a political act, an act of power.

=====
Here are a few of the essays I read on the draft opinion.

Rebecca Traister

Ian Milheiser

Alex Parene

Jessica Valenti

Molly Crabtree

Zachary Carter

Melissa Murray and Leah Litman

Barry Friedman,Dahlia Lithwick, and Stephen I. Vladeck

Battle For The Wheel Trash Talk

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I swore I would not do Trash until the NFL started playing real games, but it turns out there is a very special game in this, the first week of college football. It is stunning that two dynasty college teams that usually open up with patsies like Lower Patagonia State or something are paired off in week one this year, and it should be a fascinating grudge match.

Yes, obviously, I am talking about Florida State and Alabama on the “neutral” site of the brand spanking new Mercedes Stadium in Atlanta. The Tide is number one rated in the early polls, with the Seminoles right behind at number 3. Huge implications for the end of season bowl playoff slotting. Both teams have second year QB’s that had sketchy years last year, Jalen Hurts for the Tide because of serious inconsistency, and Deondre Francis for the Noles because he was under constant assault from a very bad O-line. Both defenses are superb, so the one that gets their passing attack untracked the best is probably going to win.

Okay, that was a little cruel, as the real game of the week here at Emptywheel is the other blockbuster, Marcy’s Michigan Wolverweenies and Jim White’s beloved Chomping Gators, another neutral site game, this one at Jerryworld in Dallas. As you may recall, Florida absolutely got decimated by Michigan in the Citrus Bowl two years ago. Gators ranked number 17 and Michigan number 11 in the preseason polls. Both teams have holes all over the place, on both sides of the ball. The Weenies have the fewest returning starters of any team in major college football. The Gators have 29 players suspended for the game (okay, “only” ten the last time I checked). Neither team looks very proficient on offense, but Michigan might have a slight edge, so I guess I will take them in what is nearly a pickem. Oh, and the coaches Harbaugh and McElwain, seem to not get along very well, so keep an eye on that. Really, does Harbaugh get along with anybody?

Other good games include Ohio State at Indiana, Colorado State at Colorado, Troy at Boise State (seriously this should be a great game), West Virginia at Virginia Tech, and BYU at LSU for the start of Ed Orgeron’s tenure as head coach now that Les Miles is gone. That game was set for Houston, but has been relocated to New Orleans because of the Hurricane Harvey destruction. Teexas A&M Aggies at UCLA looks promising as well.

Also this weekend is the Italian Grand Prix from Monza. Am watching qualifying right now, and it has taken hours because of rain delays. It is really wet. Everybody is sliding on the famed Parabolica curve, it is pretty nuts. Not clear what the weather will be like for tomorrow’s race, but more rain a distinct possibility.

Lastly, Marcy ordered me to write an obituary for the departing odious Judge Richard Posner. No he is not dead, but he is retiring, presumably to spend more time with his self inflated ego. Posner boasts of his “legal pragmatism”, a load of crap that includes his own legal fact finding behind the appellate record. Good riddance to a narcissistic plague on the federal judiciary.

This week’s music comes from a local band that is starting to get some national attention, the Black Bottom Lighters. They are really good, give them a try. Rock on.

The Origins of Totalitarianism: Interlude Defining Elites

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Previous posts in this series:

The Origins of Totalitarianism Part 1: Introduction.

The Origins of Totalitarianism Part 2: Antisemitism

The Origins of Totalitarianism: Interlude on the Tea Party

The Origins of Totalitarianism Part 3: Superfluous Capital and Superfluous People

The Origins of Totalitarianism: Interlude on The Commons

Capitalism Versus The Social Commons (published at Naked Capitalism; discusses privatization using Rosa Luxemburg theory)

The Origins of Totalitarianism Part 4: Humanity under Totalitarianism

The Origins of Totalitarianism: Interlude on Right-Wing Authoritarianism

The Origins of Totalitarianism Part 5: Artistic and Intellectual Elites and the Rise of Fascism

In Part 5 I discussed Hannah Arendt’s view of the role of the elites in the rise of fascism. She defines the term elites as the artists, composers and intellectuals in Germany and Austria in the late 19th and early 20th Centuries. We use the term “elites” more broadly today. Depending on the context, it might mean some or all of the following:

1) a few very rich people. This group is described by Robert Reich as

…the major corporations, their top executives, and Washington lobbyists and trade associations; the biggest Wall Street banks, their top officers, traders, hedge-fund and private-equity managers, and their lackeys in Washington; the billionaires who invest directly in politics; and the political leaders of both parties, their political operatives, and fundraisers.

2) the people whose views are most respected in some scientific field or some academic area;

3) pundits, writers, media people, and the talking heads and experts who appear in their outlets. The experts themselves fall into two categories. One group comes from academia, and generally are actual experts. The other comes from think tanks, national issue-oriented organizations and other holding pens where they try to influence policy and wait for an opportunity to move into government.

4) top government people, including those in the legislature and their top staffers, top administration officials and of course, the President. This group also includes members of the deep state, the permanent group of military and security officials and bureaucrats who stay on election to election.

Taking these groups together, we have a working definition of the Establishment, and by separating them along the lines of their political party identifications, we have the Republican and Democratic Establishments.

You’ll note there is no mention in my list of artists or composers, and no mention of “intellectuals”. We have a complicated relationship with any kind of intellectualism, as Richard Hofstadter explains in Anti-Intellectualism in American Life, a book I read in college, reread later, and kept, I thought, until I went to look for it. Nicholas Lemann discussed it in an article in the Columbia Journalism Review, from which the following is taken.

It helps in understanding Hofstadter to know what [Hofstadter] takes intellectualism to mean. Here is a passage that comes as close as any in the book to a definition:

It accepts conflict as a central and enduring reality and understands human society as a form of equipoise based upon the continuing process of compromise. It shuns ultimate showdowns and looks upon the ideal of total partisan victory as unattainable, as merely another variety of threat to the kind of balance with which it is familiar. It is sensitive to nuances and sees things in degrees. It is essentially relativist and skeptical, but at the same time circumspect and humane.

I’m not sure how well that definition works with Arendt’s general description, but there certainly was a group of intellectuals in the late 19th and early 20th Century, and I think there would be general agreement on its members. Today, we don’t actually have many intellectuals in that sense. Instead, we have experts, people wired into the economic and social structure who are thought to have special expertise in some area of study. Judge Richard Posner of the Seventh Circuit wrote a book about this issue, Public Intellectuals: A Study in Decline. This is from a review in the Economist:

He starts off by ruling out what most of us would take as archetypal intellectuals: scientists who explain science to lay people (eg, Steven Weinberg), philosophers with an influential vision of society (eg, John Rawls or Robert Nozick) and literary intellectuals of high Bohemia (eg, Susan Sontag). No, his public intellectuals are really pundits: people who opine about issues of the day on television or in newspaper columns. On the theory that if it’s real it must be countable, he ranks what he calls the top 100 on the basis of scholarly citations, media mentions and web hits.

Here’s Posner’s expanded list of over 600 public intellectuals. Arendt made the list, and it’s fun to see the people who are quoted or sought on the internet 15 years ago; for example, David Brooks and David Broder are there, next to each other. Posner says the problem is that the then current crop of pundits (who are a subset of that list) is really bad at opining. As you would expect from the founder of the Law and Economics movement, he explains this with simplistic ideas about supply and demand. He says there are too many commentators, and that they are not held accountable for their errors, which is obviously true.

There have been a number of studies of the ability of experts to predict the future. In this review in the New Yorker Louis Menand (also on the list, and deservedly) discusses Expert Political Judgment: How Good Is It? How Can We Know? by Philip Tetlock, a Berkeley psychologist and researcher. It turns out experts aren’t good at predicting the future either in their own fields or in other areas.

Posner is quite right that those who spout what Paul Krugman (on the list) calls zombie ideas are never held accountable for being totally wrong. Instead, their views are considered highly valuable by policy makers. This, of course, shows how badly Posner has missed the real problem. Pundits and experts who shriek about deficits and inflation in today’s economy are prized by those who serve the interests of the rich, and who provide their PR.

Until the last few years, the elites have generally agreed on policies on most issues. You can see a good example in the way the New York Times discusses the refusal of the Republicans to govern, as in this astonishing piece by Jennifer Steinhauer. The destruction of institutional norms that once made government work under our ancient Constitution is now perfectly normal for our elites. For another, and more dangerous example, there is nearly universal agreement among the elites that prosecuting bank executives for their crimes that crashed the economy would not be possible. In fact, the elites generally agree that none of them can be held accountable for any of their actions, regardless of the damage done . We can no more punish Rick Snyder for poisoning Flint families than we could punish anyone for Iran-Contra or the top executives of American Water for failing to notice that the water they had privatized and sold to the people of Charleston WV was sickening. It mustn’t be done.

That kind of consensus indicates that the large bulk of our public intellectuals are completely indifferent to and unaware of the level of anger at the corruption that affects every aspect of our public lives. Zephyr Teachout explains corruption succinctly: the use of public office for private gain. Our elites refuse to accept this definition. There is no better proof that we need new elites.

Note: this post was updated by expanding paragraph 1) above.

Richard Posner Wants You To Learn to Love Secrecy

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As you’ve likely already heard, the 7th Circuit ruled aggressively against Adel Daoud, overturning Judge Sharon Johnson Coleman’s ruling that his lawyers could review his FISA warrant. This was utterly predictable, but unfortunate nevertheless.

Steve Vladeck had a really good post on both Judge Ricard Posner’s overreach and Judge Ilana Rovner’s description of the problem FISA presents for challenging the truthfulness of FISA warrant materials.

Here’s how he describes Posner’s obnoxious assumption of the District Court job to actually determine whether defense review is necessary.

But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.

[snip]

But far more troubling than these (gratuitous) rhetorical flourishes is the last part of Judge Posner’s opinion, which doesn’t just conclude that disclosure to Daoud’s defense counsel in this case is unnecessary under § 1806(f)—the step the Court of Appeals criticized Judge Coleman for skipping—but then goes on to resolve Daoud’s Franks motion on the merits. Thus, the majority concluded that “our study of the materials convinces us that the investigation did not violate FISA,” even though the district court hadn’t even gotten that far.

In other words, in a case in which the whole question is how judges should decide whether they need adversarial participation in order to properly resolve a FISA-based Franks motion, Judge Posner’s answer is, in effect, “don’t worry about it; we judges can handle this without any help.” With all due respect to one of the brightest and most gifted appellate judges in the country, how does he (or his colleagues) know that? Indeed, I thought one of the most significant revelations from the FISA-related disclosures of the past year is that, in fact, judges won’t always get these issues right without the benefit of adversarial presentation and argument.

What’s especially odd about Posner’s opinion, however, is his own understanding of the process he himself used to determine this warrant was legal.

Remember that at the original review of this case, Posner and his colleagues had an unannounced secret hearing to review the warrant, attended by a goodly chunk of the US Attorney’s office. After that, the Court issued an order requiring even more information from the government.

Asking for additional information is legal. Under FISA a reviewing (District) Judge can consult “such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized.” But the fact that the Circuit had to go back for even more information, after having seen all the materials Coleman reviewed, suggests the question was not as easy as Posner suggests.

And Posner wants us to believe his assumption of the role of the District Judge is a benefit to Daoud. He does so, first, in his bizarre rant about secrecy, when he emphasizes the times when secrecy benefit defendants. Then he goes further when dismissing Daoud’s lawyers objection to the secret hearing.

Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.

Only it wasn’t. It was an opportunity for the government to get a second bite at the ex parte apple, which by itself apparently wasn’t even sufficient to address questions about the application.

As Vladeck laid out, Rovner wrote a concurrence in which she acknowledged the failure of FISA to provide defendants with the ability to challenge the case against them.

But that’s not the direction our judiciary is going. On the contrary, it is embracing more and more secret procedures, all in an effort to hide what the government is really doing in its countereterrorism efforts.

Did the Government Invent Terrorist Threats Out of Adel Daoud’s Term Paper?

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I’m just now getting around to listening to the Mulligan hearing in Adel Daoud’s hearing at the 7th Circuit on Monday which the panel held because the hearing held the previous Wednesday had not been taped.

The hearing (as opposed to Judge Richard Posner’s long digression about why they were having the Mulligan) started with Judge Ilana Rovner focusing on whether a defendant caught by FISA could ever take a Franks challenge to a FISA warrant — basically, a claim that the government relied on false information in an affidavit supporting a warrant. Posner, too, seemed focused on this, asking Prosecutor William Ridgway whether a case (this case?) could be sustained even in the face of a Franks challenge. (Ridgway said it could, but of course he would say that, because the Circuit can only sustain a review here if it would be significant enough to exonerate Daoud.)

And all that took place against the background of Posner claiming, at least, that the ex parte hearing last week was held to benefit his client, which suggests (as does the request for more information from the government) that the Circuit may be more skeptical of the warrant than Posner let on last week (or perhaps Posner got more skeptical after the hearing).

Daoud’s attorney, Thomas Durkin, tried to bring it back to the larger issues raising questions in this case, including the fact that Dianne Feinstein had suggested Daoud had been caught using Section 702 of FISA.

 

But ultimately, Posner showed most interest when Durkin talked about Daoud’s mosque school term paper on Osama bin Laden.

Durkin: We do know and we did tell the judge this that this 18 year old kid had to do a term paper for — he went to the mosque school, and he had to do a term paper. He decided to do a term paper on Osama bin Laden. We know he had contacts, therefore, with Inspire magazine and reasons why the NSA may have picked him up. That could be just deliberate First Amendment Activity. Nothing more, nothing less. We don’t know that. We don’t know whether there’s something in that affidavit that says — we’ve tried to rule out all kinds of First Amendment activity and we can’t find anybody. We should be permitted to see that.

Posner: Are you trying to say the government investigated him because of school paper he wrote?

Durkin: I don’t know. It could be.

Posner: No, but that’s your suspicion, right?

Durkin: That is my suspicion.

As I explained before, the investigation into Daoud started on May 10, 2012 in response to an unsolicited referral that claimed Daoud had said he’d use the instructions in Inspire to launch an attack. But neither that claim nor a subsequent claim based on an undercover officer shows the language Daoud used. The one time the FBI quoted Daoud in its summary, the FBI seemed to overstate the tie between Inspire and Daoud’s plans to hurt the US.

Thus, the evidence may well support the claim that the FBI — and whoever referred Daoud in the first place — overstated what Daoud had actually said about Inspire. Which, if that’s what they used to get a FISA warrant (and it appears likely it is), ought to be a good basis to claim they lied to get that FISA warrant.

That may not be enough to sustain Sharon Coleman’s decision Daoud should get a review of the warrant (though I suppose it’s possible the 7th could just decide to throw out the warrant). Plus, even then you might have to prove that everything that came after — including the alleged threats to a FBI agent — was entrapment.

But it seems like the 7th Circuit may be fairly critical of what they saw in that FISA warrant.

Richard Posner Prepares to Overrule the Intent of Congress, and Other FISA in Court Stories

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While the focus on NSA related issues will be on Washington DC today, with activist events, a debate at Brookings, and a Senate Intelligence Committee hearing, yesterday it was in several courtrooms.

In Chicago DC, Richard Posner reportedly seemed intent on finding a way to overturn Sharon Johnson Coleman’s order that Adel Daoud’s lawyers should be able to review the FISA materials leading to the investigation into him. It seems Posner is not all that interested in Congress’ intent that, in some cases, defendants would be able to review FISA warrants.

While she also reportedly seemed inclined to overturn Coleman’s decision, Ilana Diamond Rovner at least recognized the clear intend of Congress to permit reviews in some circumstances.

Another of the appeals court panelists, Judge Ilana Diamond Rovner, added that Coleman appeared to have “discarded” applicable FISA law and come up with her own justification for opening the records.

Rovner noted in a question for Ridgway that when Congress enacted the FISA law in the 1970s, it could have clearly indicated defense attorneys should never get access to the records. But it didn’t do that, she said.

“Can you give me any scenario where disclosure (to the defense) would be necessary?” Rovner asked.

“It would be a rare circumstance,” Ridgway, the assistant U.S. attorney, responded.

As I noted, the Defense made a very good argument that Congress intended review in such cases as this one.

Perhaps most stunning, however, is the way everyone but a big team of government prosecutors got booted from the court room.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance — including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Durkin, a veteran Chicago lawyer, said outside the courtroom he was not notified in advance that there would be a secret hearing and called the move unprecedented.

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

I suspect Posner used the period to conduct his own review of the FISA materials, substituting his judgment for Coleman’s, so as to uphold DOJ’s flawless record of never having their FISA worked checked.

But don’t worry: NSA  defenders will point to this and claim has been thoroughly vetted.

Meanwhile, in Oregon, where Mohamed Osman Mohamud is challenging what increasingly looks like his discovery off a back door search, the government appears to have argued that there is a foreign intelligence exception to the Fourth Amendment.

Assistant U.S. Attorney Ethan Knight countered that the government has court-approved procedures in place that were followed with respect to Mohamud’s case. Warrants are not required under an exception for foreign intelligence, he argued.

“The reality is when you peel back the layers of hyperbole, what would be unprecedented is if this court were to grant the defendant’s motion,” Knight said.

He also pushed back against a wider examination of the program, saying that it was “not the time or place or even arguably the branch of government” for the broader debate.

Granted, this is not much more extreme than the argument the government made in its filings (as summarized by ACLU’s Jameel Jaffer), that Americans may have no privacy interest in international communications.

In  support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.

And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

The legal record on this is specific. While FISC found there was a warrant exception for “foreign” communications in Yahoo’s challenge of the Protect America Act, the FISA Court of Review’s decision was more narrow, finding only that there was a special need for the information before it, and also finding there were adequate protections for Americans (protections the government has been abrogating since the start of these warrantless programs). So while I will have to check the record, it appears that the line attorneys are going beyond what the appellate record (such as the FISCR decision can be called an appellate record) holds.

“He didn’t threaten anybody. He opined.”

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When Hal Turner was led away to jail for writing that three judges who had upheld the Chicago gun ban (which has since been overturned at SCOTUS) “deserved to be killed”–and provided maps to help his readers find the judges–his son insisted Turner didn’t threaten anybody, he opined.

But the third jury that ruled on charges that he threatened to assault and kill judges in retaliation for performing their official duties (the first two juries deadlocked) didn’t see it that way. After two hours of deliberation, they found him guilty.

As luck would have it, this country’s fearmongerers and bigots are rather busy sowing fear of Muslims right now, or there might have been a bigger response to this. But particularly given the delay through three trials, this verdict seems almost curious. Turner got sent to jail for behavior that is becoming increasingly acceptable of late. After all, more than one candidate for Congress has implicitly threatened violence as part of their campaign (though I wonder whether Sharon Angle and Ben Quayle are smart enough to draw maps, as Turner did). Yet much of the the press seems hesitant to call out that rhetoric as beyond the pale.

Hal Turner did step over the line (though I think it’s a close call legally). But just as big a problem is the media circus that allows someone like Turner to thrive, include the so-called objective media that apparently has a difficult time discerning between the violent rhetoric from right wing activists and policy arguments advanced through legislative means of lefty activists.