The court scholar serving Hermann of Thuringia.

The court scholar serving Hermann of Thuringia.
The scholar


Commenters on the FISA case and the Administration's warrantless NSA wiretapping

I noted here that I corresponded with a conservative who contended that the mainstream media put out generally fair and accurate articles. This view takes a terriffic beating with this post by Glenn Greenwald. Greenwald delivers a very, very negative portrayal of the right-wing writer Ann Althouse, but makes it crystal clear that the New York Times is very much to blame for hiring her in the first place. Ms Althouse was hired to comment on the FISA/warrantless wiretapping case, a case that she very, very clearly knew very little about before being assigned to it. Greenwald describes in an earlier post how Althouse attacked Judge Taylor's decision and then shows us:

But then, in an "Update," Althouse has to correct herself because, apparently, she read the Comment section to Kerr's post and realized that she was just wrong about what happened -- specifically, that the court did previously deny the DoJ's request and ordered the DoJ to address the substance of the plaintiffs' claims. Learning about the procedural history of this case caused Althouse to write:

Arguably, this gave the defendants an opportunity to present evidence to defeat the summary judgment motion, and they chose not to take it.

In other words, Kerr's critique (which Althouse endorsed) of the court's opinion is just wrong -- factually wrong. The court directed the DoJ to address the substance of the claims and the DoJ simply failed and/or refused to do so -- facts which neither Kerr nor Althouse even knew when attacking the court's opinion.

Althouse attacked Judge Taylor's decision without being aware of a great many facts about the case. These are facts that would have been easy to have on hand, had she been following the case for a while as opposed to doing a rush job of reading the judge's decision and then immediately writing upon it. Greenwald mentions that Laurence Tribe was following the case and, unsurprisingly, reached many of the same conclusions that Greenwald did. As it was, Althouse kind of "parachuted" into the case, commenting on it after only having had time to skim the decision without taking the time to do any real background research. In a particularly ludicrous comment. Althouse complains that Judge Taylor's decision represents "judicial activism." As Greenwald puts it:

Althouse's accusation of "judicial activism" here is particularly incoherent given that Judge Taylor was upholding and enforcing a law (called FISA) that was overwhelmingly enacted by the American people through their Congress. Enforcing a democratically enacted law -- as Judge Taylor did -- is the opposite of what "judicial activism" describes (i.e., where a judge ignores the "will of the people" by undemocratically striking down laws they enact).

It is horrible beyond belief that an editorialist is given free reign to comment on a very important judicial decision that she quite obviously, barely understands. The idea that the NY Times is a responsible journalistic enterprise that is minimally competent to present citizens with the news they need takes terrible damage here.

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