ACLU v. NSA: An "Independent and Fearless Judiciary"

Regular readers of the University of Chicago Law School Faculty Blog will not be surprised to learn that I applaud Judge Anna Diggs Taylor's August 17 decision declaring President Bush's NSA surveillance program unlawful. Judge Taylor ruled that the President's secret directive to the NSA to engage in warrantless electronic surveillance of telephone calls and emails involving American citizens on American soil violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. On several occasions, I have posted entries on this site arguing for those conclusions.

Although I am confident Judge Taylor reached the right result as a matter of law, I have to admit I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.

Regular readers of the University of Chicago Law School Faculty Blog will not be surprised to learn that I applaud Judge Anna Diggs Taylor's August 17 decision declaring President Bush's NSA surveillance program unlawful. Judge Taylor ruled that the President's secret directive to the NSA to engage in warrantless electronic surveillance of telephone calls and emails involving American citizens on American soil violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. On several occasions, I have posted entries on this site arguing for those conclusions.

Although I am confident Judge Taylor reached the right result as a matter of law, I have to admit I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.

In American Civil Liberties Union v. National Security Agency, it would have been easy for Judge Taylor to evade her responsibility. She could have ducked the merits by endorsing the government's contention that the case should be dismissed either because of the state secrets privilege or because the plaintiffs lacked standing. Many judges, I fear, would have taken that route. As Judge Taylor explained in her opinion, however, those ways to sidestep the merits would have been wrong.

ACLU v. NSA was a civil action brought by a broad range of individuals and organizations alleging that the NSA surveillance program infringes their legal and constitutional rights. The government argued that the case should be dismissed because the government would have to reveal state secrets in order to defend the legality of the program . This argument is puzzling. It is analogous to a defendant in a civil action demanding dismissal of the case because in order to prove a defense he would have to forego the attorney-client or doctor-patient privilege. But the privilege gives the defendant the right to prevent the plaintiff from demanding the privileged information. It does not give him the right to have the case dismissed. In any event, this question was not presented in ACLU v. NSA because, as Judge Taylor held, the government failed to demonstrate that any state secrets needed to be disclosed in order for it to defend the legality of the program.

The standing argument is similarly puzzling. The government maintained that the plaintiffs lacked standing to challenge the legality of the NSA program because they could not prove that they had personally been subjected to unlawful surveillance. Why couldn't they prove this? Because the government insisted that the identities of the victims of the program were a state secret. On this view of the law, no one would have standing to challenge an unconstitutional and unlawful government program if the government keeps secret the identities of those who are aggrieved by the program. Though there is precedent for this position (see Laird v. Tatum), Judge Taylor rightly rejected the standing argument  in ACLU v. NSA on the basis of both logic and precedent. Happily, sometimes the law is not an ass.

The government will appeal Judge Taylor's decision to the Sixth Circuit. What will happen there is anyone's guess. I will venture a partial prediction: If the appellate judges do not hide behind the standing and/or state secrets arguments, they will affirm Judge Taylor's ruling. On the merits, the illegality of the NSA program is too clear to elide.

Who is Judge Taylor, anyway? Knowing little about her, I decided to check her out. She is an African-American graduate of Yale Law School (JD '57). In 1964, she spent the summer ("Freedom Summer") in Mississippi to help provide legal services for civil rights activists. She arrived in Mississippi on the very day that three young civil rights workers (James Chaney, Andrew Goodman, and Michael Schwerner)  disappeared in Philadelphia, Mississippi. When she and several other attorneys went to the sheriff's office to inquire about the disappearance, they were surrounded by a mob of hostile whites who hurled racial epithets at Taylor and her companions. Forty-four days later, the bodies of Chaney, Goodman, and Schwerner were found at Olen Barrage's Old Jolly Farm, six miles northeast of Philadelphia, Mississippi. Each of the civil rights workers had been shot in the heart. Four decades after the murders, in June 2005, Edgar Ray Killien, a local minister and member of the Klan, was finally brought to justice.

After her experience in Mississippi, Anna Diggs Taylor had a distinguished legal career in Detroit, where she served as an Assistant U.S. Attorney, special counsel to the city, and a private practioner. Among her many achievements, she won a landmark anti-discrimination case. In 1979, President Jimmy Carter appointed her a United States District Judge.

Judges are who they are. They strive to follow the law, but personal experience and character matter. I have little doubt that Judge Taylor's willingness to face the merits in ACLU v. NSA was in part the consequence of who she is as a person. Her decision took personal courage and a genuine commitment to the rule of law. The same kind of courage and commitment she manifested forty years ago during Freedom Summer. We need judges cut from such cloth.

This reminds me of an incident involving Judge Learned Hand in 1917. Judge Hand was then a young man. He was assigned to hear the case of Masses Publishing Co. v. Patten, which involved a challenge to the Espionage Act of 1917 at the very height of World War I patriotic fervor. The question was whether the United States government could lawfully ban the Masses magazine from the mails because it criticized American participation in World War I. Judge Hand fully appreciated the importance of the case to him personally. He knew he was then under consideration for promotion to the court of appeals, a promotion he richly deserved and much desired. When he learned he had been assigned the case, he wrote his wife that if the case were not quickly settled, his decision would go against the government, and then "whoop-la, your little man is in the mud." He added that "there are times when the old bunk about an independent and fearless judiciary means a good deal."

Sure enough, Judge Hand held that the government's order was unlawful, his opinion was promptly reversed by the court of appeals, and he was passed over for the court of appeals appointment, which went to a less distinguished jurist. Hand reflected later, "The case cost me something, at least at the time," but added, "I have been very happy to do what I believe was some service to temperance and sanity." Judge Hand's opinion in Masses is today regarded as one of the truly great judicial opinions in the history of the United States.

So, Judge Taylor, here's to a "fearless and independent judiciary."

Comments

[Frederick Hamilton]

Prof Stone, when you admire independence of federal judges is it only independence from the defendant (in this case the government) that you admire? Or should the admiration extend to the plaintiff also?

[Erasmussimo]

Mr. Hamilton, I find your personal attack on Ms. Taylor unworthy of the high intellectual standards of this blog. If you believe that Ms. Taylor should have recused herself, then please present your reasoning. Your comment that "it is not all that unusual for a member of the judiciary" seems an admission that it does not constitute grounds for recusal. You therefore seem to be lacking any substantial point and merely engaging in angry slander.

Even your slander is without merit. You suggest that Ms. Taylor's integrity is in some way compromised by her association with this charity. I suggest that you consult the documentation on this. The charity in question supports gay and lesbian efforts. The grant on which you hang your case amounts to $25,000 out of a total of $970,000 -- a tiny fraction of the organization's overall disbursement. Moreover, it was awarded "to hire an attorney to focus on family law issues". This has nothing whatsoever to do with the issues in the case at hand.

You are squeezing the data too hard. Is there any difference between your argument and Mr. Michael Moore's insinuation that Mr. Bush's relationship with the Saudi royal family affected his judgement post-9/11?

[Frederick Hamilton]

Erasmussimo,
Please. If you read my post carefully those words you are putting in my mouth are the editorial words of today's New York Times, in quotation, not mine.

For the sake of space, I left out the middle section of the editorial that specifically states the amount of money given to the ACLU was $125,000, not the $25,000 you mention.

It is the New York Times that said she should have divulged her ties to the ACLU, not me. Sorry, I stand by my point. If you are supporting the ACLU as a board member of an organization to the tune of $125,000 (or in my mind $1)and you are a federal judge and the plaintiff is the ACLU....duh.

The New York Times and I agree, (a rare occurance), Judge Taylor was remiss in not informing the court of her decision making as a board member of the Community Foundation of Southeastern Michigan with respect to their giving money (a lot of it) to the ACLU.

I am not squezing data too hard and their is a big difference between Michael Moore's "allegation" of President Bush's relationship with the Saudi Royal family and a sitting federal judge deciding on "one of the most politically charged cases in recent history" (NY Times) and not telling the world she approved of large amounts of money to be given to the plaintiff in the case.

Sorry, Erasmussimo, the great disinfectant, sunshine, is shinning pretty brightly on Judge Taylor.

[Erasmussimo]

Mr. Hamilton, I suggest that you consult the source material from Judicial Watch, as well as the actual financial report from the foundation in question. The New York Times appears to have made an error in stating that the amount was $125,000. The amount on the report is $25,000 -- about 2.5% of the total amount of all grants by this foundation.

I do not understand why you make such a large point of the fact that it was the New York Times, not you, making the statements. It is obvious that you approve of the NYT editorial, and your own words go considerably beyond the NYT's in the personal attack on Ms. Taylor.

Let's eschew the personal attacks and focus on the issues, shall we? You argue that Ms. Taylor should have reported the information to the court. Do you further argue that Ms. Taylor should have recused herself?

[Seth Edenbaum]

And Scalia's hunting trip with Cheney?
Google the the National Review for the defense of Scalia's actions.

And read http://glenngreenwald.blogspot.com/2006/08/ann-althouse-nyt-legal-expert-on-case.html Greenwald on Althouse.

who links elsewhere to this http://letterfromhere.blogspot.com/2006/08/would-ann-althouse-call-this.html

for commentary on Warren v Burger. More of the same. It's a joke.

[Frederick Hamilton]

Erasmussimo,
The $25,000 figure was the amount given in 2002, from 1999 to present the amount given to the ACLU is the $125,000 amount cited in the NYT editorial.

Should she have reported that she is an officer in the charity and participated in awarding the money to the ACLU? Sure. So does that right wing rag, the NY Times.

Should she have recused herself? I think the NYTimes again states it best "While the judge clearly erred in not disclosing this involvement, it wouldn’t seem, based on the known facts, to rise to the level of a conflict of interest reasonably requiring that she recuse herself from hearing the case under existing ethics rules." I don't disagree with that but I am not an attorney. I would defer to the ethics requirements of the federal bench on that. Recuse? Don't know. Not disclosing the fact. Bad form.

The reason I wanted you to know that I had not said it was to show that an impartial observer of facts said it. I am capable of speaking for myself.

Seth, I agree with you that a sitting Supreme should not be socializing with a Prez or Vice Prez or using free air travel on government planes. To many cases involving the federal government to avoid if not a conflict of interest, the appearance of one. Which is why the NYT editorializes on Judge Taylor's indiscretion.

Interestingly, either Truman or FDR (can't remember which) used to play poker with a sitting Supreme.

[Erasmussimo]

Thanks for clearing up that confusing point about the amount of money given by the charity. I'll stick to my point that the contribution is not a significant conflict of interest because 1) it remains a tiny fraction of the overall amount; and 2) the ostensible purpose of the charity has nothing whatever to do with the case at hand. If the contributions were broad in nature, there might be a conflict of interest, but inasmuch as they were for specific purposes unrelated to the case in question, I see no conflict of interest.

I'm glad we agree that she should not have recused herself. She would have been prudent to report her association with the charity, if only to cover her ass against this type of malicious gossip. I would prefer all parts of our government to be rigorous in all such matters. Given the rampant corruption going on in Washington, this tiny spot of dirt on her robes is as nothing compared to the filth that our other government officials wallow in. Overall, I will certainly agree with a gentle tut-tut to her about this.

[GARY]

"High intellectual standards of this blog"
DUBIOUS!

[ziemer]

yeah, it really takes alot of courage for a left wing kook to write an opinion that will make her the darling of the day to all the rest of the kooks in america and their sick friends in the PLO.

[Frederick Hamilton]

For all of you who praise Judge Taylor for protecting us from the scourge of Bush, you might want another perspective on the world we live in. I know you will claim spineless, fear monger, cowardly, but the real world is out there and it is not going away. Posner is correct in that we need a way to balance our rights with our safety. There are times that are different and require a different approach and perspective. Per Dylan, the times they are a changin.

Point of No Return?
By Thomas Sowell

It is hard to think of a time when a nation -- and a whole civilization -- has drifted more futilely toward a bigger catastrophe than that looming over the United States and western civilization today.

Nuclear weapons in the hands of Iran and North Korea mean that it is only a matter of time before there are nuclear weapons in the hands of international terrorist organizations. North Korea needs money and Iran has brazenly stated its aim as the destruction of Israel -- and both its actions and its rhetoric suggest aims that extend even beyond a second Holocaust.

Send not to know for whom the bell tolls. It tolls for thee.

This is not just another in the long history of military threats. The Soviet Union, despite its massive nuclear arsenal, could be deterred by our own nuclear arsenal. But suicide bombers cannot be deterred.

Fanatics filled with hate cannot be either deterred or bought off, whether Hezbollah, Hamas or the government of Iran.

The endlessly futile efforts to bring peace to the Middle East with concessions fundamentally misconceive what forces are at work.

Hate and humiliation are key forces that cannot be bought off by "trading land for peace," by a "Palestinian homeland" or by other such concessions that might have worked in other times and places.

Humiliation and hate go together. Why humiliation? Because a once-proud, dynamic culture in the forefront of world civilizations, and still carrying a message of their own superiority to "infidels" today, is painfully visible to the whole world as a poverty-stricken and backward region, lagging far behind in virtually every field of human endeavor.

There is no way that they can catch up in a hundred years, even if the rest of the world stands still. And they are not going to wait a hundred years to vent their resentments and frustrations at the humiliating position in which they find themselves.

Israel's very existence as a modern, prosperous western nation in their midst is a daily slap across the face. Nothing is easier for demagogues than to blame Israel, the United States, or western civilization in general for their own lagging position.

Hitler was able to rouse similar resentments and fanaticism in Germany under conditions not nearly as dire as those in most Middle East countries today. The proof of similar demagogic success in the Middle East is all around.

What kind of people provide a market for videotaped beheadings of innocent hostages? What kind of people would throw an old man in a wheelchair off a cruise liner into the sea, simply because he was Jewish? What kind of people would fly planes into buildings to vent their hate at the cost of their own lives?

These are the kinds of people we are talking about getting nuclear weapons. And what of ourselves?

Do we understand that the world will never be the same after hate-filled fanatics gain the ability to wipe whole American cities off the face of the earth? Do we still imagine that they can be bought off, as Israel was urged to buy them off with "land for peace" -- a peace that has proved to be wholly illusory?

Even ruthless conquerors of the past, from Genghis Khan to Adolf Hitler, wanted some tangible gains for themselves or their nations -- land, wealth, dominion. What Middle East fanatics want is the destruction and humiliation of the west.

Their treatment of hostages, some of whom have been humanitarians serving the people of the Middle East, shows that what the terrorists want is to inflict the maximum pain and psychic anguish on their victims before killing them.

Once these fanatics have nuclear weapons, those victims can include you, your children and your children's children.

The terrorists need not start out by wiping our cities off the map. Chances are they would first want to force us to humiliate ourselves in whatever ways their sadistic imaginations could conceive, out of fear of their nuclear weapons.

After we, or our children and grandchildren, find ourselves living at the mercy of people with no mercy, what will future generations think of us, that we let this happen because we wanted to placate "world opinion" by not acting "unilaterally"?

We are fast approaching the point of no return.

Copyright 2006 Creators Syndicate

[Erasmussimo]

Mr. Hamilton, I agree that Iran constitutes a serious threat, and that we must prevent Iran from obtaining nuclear weapons. Had previous Administrations -- and this one -- taken the problems of nuclear proliferation more seriously, we might not be in this pickle. But that's another issue.

You are arguing that these threats call for a diminution of Constitutional rights. That's a debatable point, and I think this nation needs to have that debate. But the topic at hand concerns the decision of Ms. Taylor, and I believe that, under current law, her decision was the correct one. I agree with Mr. Posner that we must re-evaluate these issues, but future re-evaluation does not in any way compromise the correctness of Ms. Taylor's decision.

[Bob]

Fred,

If we give up our natural rights in order to combat terrorism, we will decline into the same squalor, muck, and mire as the terrorists. They live in complete ignorance. They have no privacy. They have no freedom. They have nothing to live for. They only have something to die for. I don't want to see my children's children having to live in a country that has given up its freedon to secure an illusion of safety. If that were to happen, we could end up becoming just like them with one exception...we would be extreme Christian fundamentalists instead of extreme Muslim fundamentalist.

One more point, the suicide bombing can be stopped if we were to take out the leaders. Only the young and ignorant and brainwashed become suicide bombers. The leaders value their own lives too much to do such a thing themselves. We can do this without having to give up our rights at home. We need to take the fight to them, but not with military invasions of Iraq, Iran, and North Korea. We need to infiltrate their organizations and assasinate their leaders. This would cost much less than the $200 billion boondoggle we have in Iraq. Assassination also leaves much less collateral damage.

As someone once said: "The only thing to fear is fear itself."

Here is an excerpt from eigth Federalist paper by Hamilton.

"Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."

[Frederick Hamilton]

Bob,
I don't think strong intelligence activity and keeping our civil and privacy rights are mutually exclusive. Most of the alarm on the left over the NSA program is misguided. Having said that, I think Congress should move to pass legislation that strengthens our ability to gain intelligence on terrorists without giving up our civil liberties. Can be done.

As to defeating the terrorists by killing their leadership, that is something that should be done. Will decapitating the terrorist operations shut them down. I doubt it. New leaders crop up as soon as the previous leaders are killed or captured. The beast is mulit-headed.

It needs to be an all out attack on the terrorists, their sponsors, their monies, their networks, etc. Those providing them with support need to pay a heavy price that will keep them from funding, training and supporting the terrorists. With all of that being done continually and consistently then we should prevail in the long run. It will be a long run. No short sprint here.

[Erasmussimo]

Mr. Hamilton, I am committing felony topic drift here, but I suspect that others' interest in this topic has evaporated and there are just a few of us diehards here, so I think my crime will be tolerated. I want to comment on your last paragraph, in which you recommend an all-out attack on everybody associated with terrorism.

I think that you assume that we have limitless military power. We don't. Our resources are limited. Our military power is inadequate to prevent Iran from obtaining nuclear weapons. We can't stop the civil war in Iraq and we can't wipe out the Taliban in Afghanistan. The attacks we have made are failures -- and you recommend expanding their scope?

The sad truth here is that we cannot stop terrorism without enlisting the active assistance of the rest of the world. But the policies of the last six years have eviscerated any hope of garnering that kind of support.

At this stage, our only hope to combat terrorism is to make it our prime national policy: re-institute the draft; require all citizens to make substantial economic sacrifices to finance a major military, economic, and diplomatic campaign; apologize to the world for our past arrogance; replace defiant, unilateral policies with compliant policies; make them partners, not subsidiaries in a renewed effort to rid the world of terrorism; and approach the Islamic world with a constructive and supportive rather than punitive or threatening tone.

[Seth Edenbaum]

Eras, you/we have to respond not to F.H's arguments but to his fears: you can't argue logic with children.
It's the weakness of liberal politics to be required both by decency and self-delusion to pretend that people are swayed by reason and not fear. Conservatives, as cynics, have no problems coddling the weak and insecure with lies.

H. doesn't know the history of the middle east and seems not to want to learn it. He worries about evil people who want to do evil things to us and if we don't recognize evil when we see it we are refusing to see the danger. You could ask him to read a report on the history of Hezbollah http://www.fpif.org/fpiftxt/3412 and he would just accuse you of appeasement of the followers of the dark side of the force: our opponent must be Hitlerian or not at all.
I have no patience with idiots and thus none with politics, but you need to paint the big picture for these people if you want to paint one at all.

And that's equally true arguing against defenders of Scalia's original Intent or Posner's economic fundamentalism.

[Bob]

Fred,

I do think strong intelligence activity and keeping our civil and privacy rights are mutually exclusive.

When you say that the the alarm on the left is misguided, you assume only the left cares about privacy rights. I am a staunch conservative and I also believe that our privacy rights are being diminished by the NSA program. The reaction to terrorists by the right seems a little fanatical. Perhaps, most of the alarm on the right over the terrrorists is misguided.

[Frederick Hamilton]

Seth,
Too bad you can't carry on a civil discussion without the epithets. I worry about nobody. Worry is not worth the emotional baggage. Although you may disdain politics it does impact significantly yours and my lives. As for idiots, not many people will meet your expectations so I would think not many of us rubes want much to do with you either.

Bob,
I assume nothing about the left. And yes I tend to be conservative. I simply don't agree with you about protecting our civil liberties within the context of a vigorous and robust intelligence regarding the terrorists being mutually exclusive. The Brits have a very robust MI5 and MI6 and I don't think the Brits have given up much in the way of civil liberties. I don't think you or I have given up any liberties even with the NSA TSP up and running. Time will tell us whether Judge Taylor is right or wrong. Whenever it is brought up that the threats to we Americans is real and pre-dates 9/11 the epithets come pouring forth. Too bad. Understandable that most of us are too dumb to understand the fact that we are safe and secure and "what me worry" should be the motto of the day. The beauty of a democracy is that we the uninformed can still have a voice and try to keep up with the elite who know better.

[Bob]

Fred,

Okay, we simply diagree about the NSA program's strong intelligence activity being a threat to our civil and privacy rights. I hope your last sentence wasn't saying that you consider me uninformed.

By the way, the elites are often wrong. I was just reading about Adams and his Alien and Sedition Acts the other day that made it illegal to say or print anything against the president. He even jailed a few people. Of course, Jefferson released them when he became president, but my point remains. Elites are ignorant too. What was really alarming with this act is that the executive branch was legislating law, just like what Bush is doing today. Totally unconstitutional and I hope something is done about it.

[Frederick Hamilton]

Bob,
No I was not insinuating you are part of the "elite" or effete as Agnew would say. I respect your view that Bush is doing something "unconstitutional". I don't agree with it but I know where you are coming from. Fortunately Judge Taylor has placed it on the fast track for either the 6th Circuit Appeals Court or the Supremes to instruct all of America as to the legality of lack thereof of President Bush's spying on international calls from presumed terrorists. Time will tell whether you are right or I. Both sides have some very strong points to make.

I remain convinced that spying on terrorists and terror cells in or out of America must be done. Seth would call me a fearful child. Too many fearful children have died over the last 23 years to have made an impact on Seth. They have made an impact on the country and the country wants our government doing all it can to be right up the terrorists rear end. Simple as that. I am in that camp. Am I ignorant? Am I a scaredy cat? A spineless fearmonger? A wimpy child. Nope, just your average American who could have been on one of those flights on a U.S. flag airline last week from London.

[Erasmussimo]

Mr. Hamilton, there's no doubt in my mind that the terrorist threat is much overblown. If terrorists wanted to do so, they could wreak enormous destruction upon us. The fact that they have not exploited the many security flaws in our system demonstrates their lack of volunteers willing to give their lives to their cause.

Our society simply cannot protect itself against an enemy willing to sacrifice his life to wreak havoc. All the spying in the world still cannot stop such a person. Thus, I would argue that an aggressive intelligence program wouldn't accomplish anything.

[Frederick Hamilton]

Eras,
Respectfully disagree. That aggressive inteligence program you decry and "wouldn't accomplish anything" just foiled a hell of a plot in London. A number of plots and cells interrupted in America so far.

As I mentioned, I acknowledge your thoughts about intelligence and it's effect on our security. The 9/11 commission doesn't hold your position and the vast majority of Americans want the intelligence activity to continue as we feel it does help. Again, the beauty of a democracy. If the people don't want an attempt made at prevention and intervention they will tell us so at their next visit to the voting booth. I don't know of any pols making your argument. I doubt any could be elected on the platform of "forget it", no effect. Could be wrong. To head Seth off: yes, Seth I understand we children are simply running scared and are spineless and you know best.

[Erasmussimo]

Mr. Hamilton, you're right that the British were successful in foiling a serious plot, but I'm not sure that this demonstrates the value of highly intrusive intelligence. I have seen arguments on both sides of this issue and do not think it a slam dunk.

My main point here is that any terrorist who wants to can wreak havoc. Just wander down some railroad tracks in a remote area and loosen some rails. Instant train wreck. Choose your site and time correctly, and you can have anything from many casualties on a passenger train to a major chemical spill near a school.

Or just buy a few hundred car flares and, choosing a day with the right meteorological conditions, drive up some remote mountain roads in the West, heaving a flare every quarter mile. One guy could set up a conflagration that would do enormous damage and probably kill lots of people -- and could even get away with it.

Or have two guys pick up some perfectly legal automatic weapons and visit the local high school football game on a Friday evening, emptying a few hundred rounds into the bleachers. You'll kill hundreds with gunfire and they'll kill more jumping off and in the crush at the exits.

Or fly to Australia, purchase some explosives, drive to a small outback airport with your carry-on luggage full of explosives, get on board (no carry-on checks at those airports), then fly anywhere in the world and set off your explosives at whatever time you desire.

I could keep going -- there are lots of ways to wreak havoc in a modern high-tech society. The terrorists already know them. So why hasn't it happened yet? Perhaps it's because there aren't that many terrorists.

[Frederick Hamilton]

Eras,
I wish you were right. The absence of attacks since 9/11 is an indication of a dearth of terrorists in the U.S. Possible.

All experts of all political persuasions don't argue that theory. Don't know. Don't think we can assume that as ordinary citizens without access to the intel. I know you don't trust our present day CIA, FBI, NSA, et al because of Bush/Cheney. I am not sure a Clinton/Obama administration would be doing anything different or would buy your dearth of terrorist argument.

[Kimball Corson]

Frederick,
I have thought about what really bothers me in regard to how you and many other conservatives interpret the law, especially as lay people and also publically as well. First and foremost, your interpretations are goal or result driven as though the law itself has no history, patterns, better and worse interpretations or implicit structure which itself can yield a result in an unpartisan, neutral way. In your hands, the law has no precedential or historical integrity. It is a system of phrases to be selectively captured, manipulated and twisted to get the result you want, but at the price of ignoring too much else that is to the contrary or inconsistent. One of Geof Stone's strong suits is that he knows and applies the history of the law underlying its legal priciples with a depth and integrity that is compelling, conceding such ambiguities as there are within the analyses and assessing the degree of ambiguity and its relative importance within the scheme of that analyses. What we strongly tend to get is sound legal history and analysis, exactly what good law schools want from their faculty. Conservatives, on the other hand, vitually never proceed so. For them the law has no value, history or integrity of its own but is there only to be manipulated to an end and then much more so than necesary. That is one of the things that bugs me most about conservatives. They do not care about the law. Bush has made this point to the world in spades.

[LAK]

Frederick,

I promise you from the very depths of my soul that Professor Obama would not crap on the 4th Amendment if given the chance, like our current President has. Contrary to your repeated assertions, an Obama/Clinton ticket, or anyone with respect for the rule of law, would be engaging in vigorous intelligence gathering to thwart terrorism, they'd just be doing it within constitutional bounds. You've got to stop suggesting it's either Bush's way or no intelligence gathering at all.