« Congratulations to Chris | Main | Two Questionable Arguments, Part I »

When Blogs are Better than Law Reviews...

It's hard to walk across the quadrangle at Columbia these days and not hear someone talking about the NSA and wiretapping. If you want to be the envy of your watercooler friends, read Professor Orin Kerr's analysis and actually have some legal arguments on hand when the topic comes up. As Prof. Althouse says, "[A]t the very least fair-minded observers should see that the problem is complex. Cries that the program is blatantly unconstitutional (or obviously constitutional) should be recognized as unhelpful." (Someone tell that to Ambimb.)

Sadly, I have an evidence exam tomorrow and can spend little more on this. One thing bothers me about the story. The Times has hinted at new technologies being used in these wiretaps. Much like this blog, I wonder whether we can actually evaluate the legal situation when we don't know what technology is in use.

(My personal take, made brief as I should get sleep before my Evidence exam: as a political issue the wiretap story blows over in a week or two because what matters politically isn't so much what power is exercised as who exercises the power. If you trust the President, then he was using these taps against terrorists to prevent another 9/11: who needs those stinkin' warrants? If you think Bush is a chimp, you get on your constitutional high horse and worry about whether he's about to start sending every member of the Democratic National Committee to Gitmo. (See UPDATE)

Maybe I'm old, but I like to remember the '90s. When Clinton was in office, the sudden appearance in the White House of files on Republicans signalled the coming of Big Bubba . . . if you were on the right. If you were on the left, the fuss sprang from no more than a harmless paperwork error, or maybe even a bizarre coincidence: the flapping of a butterfly's wings in Karimnagar, the appearance of secret files where they shouldn't be. If every member of the Democratic Party now getting the vapors over FSIA had been so fastidious about privacy when Gore was proposing the Clipper Chip, Clinton wouldn't have had two terms.)

UPDATE: For a predictable example, we can always count on Professor "If I Don't Like It, It's Fascism" Leiter over at UT. No legal analysis--par for the course for the Report--but only the headline "Libertarians for Fascism" and an approving link to the typically uninformative Dadahead (who in turn is merely quoting Scott Lemieux). The latter two posts boil down to "[T]he legal question here is unambiguous." As for Leiter's opinion, he doesn't tell you what he thinks of statutory ambiguity, merely that it's fascism.

TrackBack

TrackBack URL for this entry:
http://www.threeyearsofhell.com/cgi-user/mt/mtPleaseLinktoMe.cgi/2967

Listed below are links to weblogs that reference When Blogs are Better than Law Reviews...:

» In 28 years the FISA Court has never turned down a surveillance request from Inside Opinions: Legal Blogs
Update to original post: Orin Kerr has typed a voluminous and nuanced Legal Analysis of the NSA Domestic Surveillance Program (he covers the Fourth Amendment, FISA, and Article II). Given the question I raised yesterday, I'm particularly interested in the [Read More]

Comments

what matters politically isn't so much what power is exercised as who exercises the power Hopefully you recognise that legally, ethically, and intellectually, what matters is what power is available, not who might come to wield it. Although it's worth remembering that even if you do happen to trust Mr. Bush, he won't be in power for ever.
Cardinalsin: And certainly you realize that: a) legally, as we've seen, it's a more difficult problem; and b) ethically, it's a trickier problem still. After all, to evaluate the ethics of it, we'd have to know what the wiretapping was used for, th threats that were actually being faced, the precise method that the was being, etc. Ethically, here's a strong argument to break the law if the danger of not breaking it is greater. As for "intellectually," I have little idea which way it matters, but I'm not sure how worried I am about FISA/AUMF as an intellectual idea.
I think I basically concur (especially from my position of legal ignorance!). My point was, any time one agrees to allow the person in power to act in a particular way, one effectively opens up the way for their successors to do the same. Theoretically, that is - in practice, they do what they like until they get caught. Dunno whether I want to defend the use of the word "intellectually". If I meant anything much by it, it was just that we may well feel more or less comfortable with Bush having this power as opposed to Bubba or whoever, but we certainly cannot be rationally satisfied with that way of thinking.

Post a comment

NOTICE TO SPAMMERS, COMMENT ROBOTS, TRACKBACK SPAMMERS AND OTHER NON-HUMAN VISITORS: No comment or trackback left via a robot is ever welcome at Three Years of Hell. Your interference imposes significant costs upon me and my legitimate users. The owner, user or affiliate who advertises using non-human visitors and leaves a comment or trackback on this site therefore agrees to the following: (a) they will pay fifty cents (US$0.50) to Anthony Rickey (hereinafter, the "Host") for every spam trackback or comment processed through any blogs hosted on threeyearsofhell.com, morgrave.com or housevirgo.com, irrespective of whether that comment or trackback is actually posted on the publicly-accessible site, such fees to cover Host's costs of hosting and bandwidth, time in tending to your comment or trackback and costs of enforcement; (b) if such comment or trackback is published on the publicly-accessible site, an additional fee of one dollar (US$1.00) per day per URL included in the comment or trackback for every day the comment or trackback remains publicly available, such fee to represent the value of publicity and search-engine placement advantages.

Giving The Devil His Due

Choose Stylesheet

What I'm Reading

cover
D.C. Noir

My city. But darker.
cover
A Clockwork Orange

About time I read this...


Shopping

Projects I've Been Involved With

A Round-the-World Travel Blog: Devil May Care (A new round-the-world travel blog, co-written with my wife)
Parents for Inclusive Education (From my Clinic)

Syndicated from other sites

The Columbia Continuum
Other Blogs by CLS students

De Novo
Theory and Practice
Liberal Federalism?
Good News, No Foolin'


Althouse
Nancy Pelosi covers her head and visits the head of John the Baptist.
Vlogging in from Austin.
Omikase/"American Idol"


Jeremy Blachman's Weblog: 2007
Happy Passover
Looking for Advice re: LA
Google Books


Stay of Execution
What I've Learned From This Blog, or My Yellow Underpants
The End
Mid Thirties


Legal Theory Blog
Program Announcement: Summer Programs on the Constitution at George Washington
Book Announement: Political Foundations of Judicial Supremacy by Whittington
Entry Level Hiring Report


The Volokh Conspiracy
Making the Daily Show:
Civil unions pass New Hampshire House:
Profile of Yale Law Dean Harold Koh:


Crescat Sententia
Hillary II
Hillary
Politics and Principal/Agents


Law Dork
Election Approaches
Following Lewis
New Jersey High Court: 'Same Rights and Benefits'


IrishLaw
Homecoming
Surveying the revival
Birds of paradise


Half the Sins of Mankind
Cheney Has Spoken Religious conservatives who may ...
Does Ahmadinejad Know Christianity Better Than MSN...
Borders as Genocide In discussions of climate chan...


pf.org
Progress
For lovers of garden gnomes...and any China-freaks out there
We Interrupt Your Regularly Scheduled Programming


Ideoblog
Does SOX explain the flight from NY?
More Litvak on SOX effect on cross-listed firms
What did the market learn from internal controls reporting?


The Yin Blog
Iowa City = Riyadh
Jeffrey Rosen's "The Supreme Court"
Geek alert -- who would win between Battlestar Galactica and the U.S.S. Enterprise?


Letters of Marque
Graduation
And there we are
Oil!


BuffaloWings&Vodka
Signing Off


Dark Bilious Vapors
Jim (The Waco Kid): Where you headed, cowboy?
Bart: Nowhere special.
Jim: Nowhere special. I always wanted to go there.
Bart: Come on.
--"Blazing Saddles"

Technical Difficulties... please stand by....
The Onion should have gotten a patent first....


Legal Ethics Forum
Interesting new Expert DQ case
Decency, Due Care, and The Yoo-Delahunty Memorandum
Thinking About the Fired U.S. Attorneys


Ex Post
Student Symposium- Chicago!
More Hmong - Now at Law School
Good Samaritan Laws: Good For America?


Appellate Law & Practice
Those turned over documents
CA1: courts can’t help people acquitted of crimes purge the taint of acquitted conduct
CA1: restrictions on chain liquor stores in Rhode Island are STILL okay


the imbroglio
High schoolers turn in plagiarism screeners for copyright infringement
talisman
Paris to offer 20,600 bikes at 1,450 stations to rent by the end of the year


The Republic of T.
The Secret of the Snack Attack
links for 2007-04-04
Where You Link is What You Get

Distractions for stressed law students

The Other Side: Twisted AnimationsSomething Positive, a truly good webcomic

Syndicate This Site

Sitemeter

Technologies


Stop Spam Harvesters, Join Project Honey Pot