Thursday, January 02, 2014

140.7 - Finding defeat in victory

Finding defeat in victory

Speaking of things being frustrating, I want to spend a minute or two to express some personal frustration on another matter.

Two weeks ago, I told you about the declaration by US District Judge Richard Leon that the NSA's massive spying on Americans' telephone metadata is, quoting him, "significantly likely" to be unconstitutional. I was not the only one, of course, celebrating this dramatic smackdown of the spymasters' smirking self-justifications even as I and those others acknowledged the possibility of him being overruled by a higher court.

But leave it to some on the left to find defeat even in victory. Writing at AlterNet and later at Salon, Steven Rosenfeld declares ominously the whole thing could "backfire."

Now, let it be noted that Rosenfeld spends the majority of his piece not in defending that claim but in attacking Judge Leon as "a legal loudmouth and rightwing activist judge" who is "a longtime Republican warrior." While that appears true, I'm not sure of the relevance; as I said earlier in discussing this, the guy who brought the suit is a right-wing flake, which he is. But as I also said at the time, an old saying has it that "If it's the truth, what does it matter who said it?" Apparently, to Steven Rosenfeld, it can only be the truth if the correct sort of person says it.

But anyway, there is still his claim things could "backfire." Why and how? Well, he says, the case could eventually make its way to the Supreme Court where, quoting, him,
the conservative majority already has sanctioned NSA electronic eavesdropping and is known for elevating government searches over individual rights. In other words, Leon’s rebuke may help put the issue in front of a court majority that is poised to codify national security over privacy rights.
It must be admitted that is a true possibility. But the only alternative is to mount no legal challenge at all, which still leaves the spying as de facto, even if not de jure, legal. Is that what he wants? Is that what he'd advocating, that we do nothing for fear of making it worse? Or is it, as it equally appears to be, that he would prefer successive defeats in lower courts?

Oh, (I expect he would reply) but that's not fair! No, it's that the real focus should be on Congress! Okay, even granting that, how does that change the calculation about legal challenges? For one thing, if we were to win at the Supreme Court, the legislative battle would become unnecessary.

But worst case scenario: Suppose it does go to the Supreme Court - one of these spymaster cases will eventually - and we lose there? How does that bar us from the battles in Congress? Especially with regard to government powers, a court declaring something is legal under the Constitution does not mean it must remain legal under the law. I recall several years ago reading a book by an attorney who said that one principle of legal ethics, one admittedly often overlooked but still real, is the duty of a lawyer to sometimes tell their client "Yes, that is legal - but don't do it anyway because it's scummy." In the case of spying we could add highly subject to abuse and ultimately ineffective to scummy, so that even if the program as the government claims to be practicing it was found to be constitutional, that still doesn't mean we have to or should do it. The option of legislative opposition remains regardless of the outcome in the courts.

Despite that, Steven Rosenfeld spends his time fretting that a victory in a lower court spells doom for privacy.

As I said, leave it to the left to find long-term defeat in short-term victory. And that is so frustrating.


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