Friday, August 18, 2006

Judge Taylor's NSA Ruling

Federal District Judge Anna Diggs Taylor has ruled the NSA wiretaps to be unconstitutional. Her decision has been appealed and will almost certainly be overturned by an appellate court. Meanwhile, although the Dems are gleeful about the ruling, more sober observers seem to think that it's pretty disgraceful:

PowerLine's lawyers find the decision completely devoid of legal reasoning, sound or otherwise. One of them says:

Readers may recall that, unlike my partners, I think it's probably a close question whether the NSA program is lawful. Thus, I would have been eager to read and engage a well-reasoned decision that struck down (or affirmed) the program. Unfortunately, this court provided virtually no reasoning at all.

The Washington Post, no friend of the Bush administration, roasts the decision over a hot flame:

The nation would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency's program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.

Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

Apparently, Judge Taylor believes that the constitution says whatever she wants it to. It is astonishing to us that the president's political opponents feel so free to claim that he's doing something nefarious by employing these surveillance techniques to protect the lives of Americans when precisely what the law is on the matter is so murky that not even a federal judge can discern what the exact violations of the law are.

That being the case, shouldn't the president be given the benefit of the doubt until the courts finally sort this out and clarify exactly what the law prohibits and what it allows?

Speaking of the delight with which the Democrats have received this decision, Chuck Asay asks a rather pointed question:

Losing Round One

Having cited Strategy Page's analysis the other day in which they argue that Hezbollah suffered a grievous defeat at the hands of the Israelis we offer today a different point of view.

Ralph Peters, for example, claims in the New York Post that Israel lost the first round.

Israel's rep for toughness in tatters. Hezbollah triumphant. Iran cockier than ever. Syria untouched. Lebanon's government crippled. An orgy of anti-Semitism in the global media. Anti-Americanism exploding among Iraqi Shi'as inspired by Hezbollah. Thanks, Prime Minister Olmert. Great job, guy.

The debacle in Lebanon wasn't even a war. It was only round one of a war. And Israel's back in its corner, dazed and punch-drunk. Israel got in a gut jab, but Hezbollah landed three ferocious haymakers:

* Despite the physical damage the Israeli Defense Forces inflicted, Hezbollah's terror-troops were still standing (and firing rockets) when the bell rang.

* At the strategic level, Hezbollah's masterful manipulation of the seduce-me-please media convinced the region's Shi'a and Sunni spectators alike that Hassan Nasrallah is the new Great Arab Hope. He's got a powerful Persian cheering section, too.

* While Israel couldn't plan or execute a winning campaign, it also failed to think beyond the inevitable cease-fire. But Hezbollah did. The terrorists had mapped out precisely what they had to do the moment the shooting stopped: Hand out Iranian money, promise they'll rebuild what Israel destroyed - and simply refuse to honor the terms of the U.N. resolution.

Israel couldn't wait to throw in the towel and start pulling out troops. Then Hezbollah's fighters emerged from the rubble of towns Israeli leaders lacked the courage to conquer - and the number of terror-soldiers who survived shocked the Israelis.

Politicians and generals everywhere, repeat after me: "Air power alone can't win wars; you can't defeat terror on the cheap with technology; and (in the timeless words of Nathan Bedford Forrest) War means fighting, and fighting means killing."

The U.N. resolution called for Hezbollah to disarm - a fantasy only a diplomat could believe. As soon as the refugees began flowing southward and packing the battlefield, Nasrallah told the international community to take a hike. He knows that U.N. peacekeepers won't try to disarm his forces - if they ever show up - and the Lebanese military not only won't try, but couldn't do it.

The world's response? The French (who talked so boldly) took a cold swig of Vichy water: Now they say they won't send in their peacekeepers until Hezbollah is completely disarmed - which isn't going to happen. And Lebanese leaders stated openly that not only wouldn't the Lebanese army attempt to take away the terrorists' weapons, it wouldn't even confiscate caches it stumbled on.

Sucker-punched (well, don't fight with your eyes closed), Israel's complaining to the ref. While staring around in bewilderment.

Want more good news? After finally calling our enemies by the accurate name of "Islamo-fascists," President Bush backtracked so fast the White House lawn was smoking. Then he declared that Israel had won.

That's about as credible as insisting the Titanic docked safe and sound. And that ain't all, folks. If you're an Israel supporter - as I proudly admit to being - get ready for some tough love: Not only did Israel's abysmally incompetent government start a war impulsively and prosecute it half-heartedly, the country's military leadership failed, too. Chief of Staff Lt. Gen. Dan Halutz, who was going to destroy Hezbollah from the skies, reportedly put his main effort on the eve of war into selling off his stock holdings before his bombs could weigh down the market. Now that's insider trading!

But that was just one jerk-general dishonoring his uniform. The serious news is that the IDF's reserve forces were a shambles when they mobilized. Information from an inside source reveals that, when the reserves' warehouses and depots were opened, key stocks were missing - stolen.

What was gone? Fuel, weapons, ammunition, food, spare parts - all that a modern military needs to go to war. And I doubt it ended up in Iceland. The IDF has great combat leaders and brave soldiers. But Hezbollah's boys proved tougher - and we can't pretty it up. The terrorists were willing - even eager - to die for their cause. Israeli leaders dreaded friendly casualties. And IDF troops - except in elite units - lacked the will to close with the enemy and defeat him at close quarters.

Israel tried to fight humanely. Hezbollah was out to win at any cost. The result was inevitable. On the ground in southern Lebanon, the IDF was able to muster a ten-to-one advantage around contested villages. But its leaders lacked the guts to do what needed to be done. And Hezbollah's front-line fighters survived. You can't win if you won't fight.

The IDF needs pervasive reform. Still structured to defeat the conventional militaries of Syria and Egypt, it faced an enemy tailored specifically to take on the IDF. Historical reputation isn't enough - the IDF must rebuild itself to take on post-modern threats. As one senior American general put it, "The IDF's been living on fumes since 1967." Hezbollah cleared the air.

All this is heartbreaking. I wish it were otherwise. I wish I could back up our president's surreal claim that Israel won. I wish Israel had won. I wish it had the leadership the Israeli people deserve. And that's what's tragic: Israel's politicians turned out to be even more profoundly out of touch with their people than the pols in Washington. Israelis were willing to fight. They wanted to win. The rank and file of the IDF would have done what needed to be done. And their leaders failed them.

There will be consequences. Iran's convinced it's on a winning course. Syria got away with murder (literally). And Hezbollah will come back more determined than ever.

Oh, I almost forgot those two IDF soldiers whose kidnapping triggered all this. But I can be forgiven, since Israel's leaders forgot about them long before I did: The U.N. resolution Olmert welcomed makes no binding and immediate demand for their return.

And the world is going to let Iran build nuclear weapons. Get ready for Round Two.

Whether Israel won or lost is not so easy to discern. Certainly quitting the field before any of their stated objectives were met sounds much like a defeat, but if the cease-fire works Israel will have gained one objective which is the security of its northern border. Of course, the cease-fire is very unlikely to work, for reasons Peters enumerates, in which case all depends on how Israel reacts to that. If they temporize and vacillate, as they have under Olmert, then it will be their complete undoing. The rest of the Arab world will catch the scent of weakness and fear and they will pounce like ravenous wolves, ripping the country to bits.

If, on the other hand, they respond with resolve and crushing force against Hezbollah and clear them out, not only of the south but also the Bekaa, the one month war will be seen as little more than a false start.

Hezbollah refuses to disarm, the kidnapped soldiers have not been returned, the U.N. appears to be reverting to form and reneging on their promise of a peacekeeping force, the French are reverting to form and have lost interest. It's just a matter of time until hostilities break out again. Are the Israelis preparing for the inevitable?


Here's a web-site that offers a funny parody of the movement among evolutionary atheists to refer to themselves as "brights". The first paragraph of their description of Intelligent Design goes like this:

Intelligent Design is the latest attempt by creationists to force the God myth into science and destroy evolution. It is the most dangerous form of creationism to date because it self-consciously avoids reference to God and engages evolution directly on an intellectual basis. Its creationist agenda bleeds through its empty rhetoric at every turn. It is in fact a facist politico-religious movement that masquerades as science and attempts to force a wedge between the scientific community and the wider culture. Its ultimate goal of this wedgie is to establish a theocracy in which the Bible becomes federal law and the creation account in Guiness is taught as fact.

That's about right. If you visit them make sure you check out their piece on the evolution of the bacterial flagellum.

Reason and Ethics

Rebecca Goldstein recalls with fondness Baruch Spinoza's dream of founding ethics on reason. She concludes her essay with these words:

Spinoza had argued that our capacity for reason is what makes each of us a thing of inestimable worth, demonstrably deserving of dignity and compassion. That each individual is worthy of ethical consideration is itself a discoverable law of nature, obviating the appeal to divine revelation. An idea that had caused outrage when Spinoza first proposed it in the 17th century, adding fire to the denunciation of him as a godless immoralist, had found its way into the minds of men who set out to create a government the likes of which had never before been seen on this earth.

Well, not exactly. The Founding Fathers valued the virtues that Goldstein and Spinoza praise, but they realized that those virtues cannot ultimately be based upon reason. They can only be based upon the will and nature of a transcendent Creator. Reason can tell us how best to accomplish some goal, but it cannot tell us whether the goal itself is good or right. If one's goal, for example, is to set up a government wherein all men are equal then reason might be able to inform us of the most effective way of going about achieving that goal, but it cannot tell us that the goal itself is any better or more right than establishing a state wherein some men are slaves.

Contra Spinoza the proposition that "each individual is worthy of ethical consideration" is not a law of nature. Nature nowhere imposes upon us a duty to assign worth to other human beings. The ethical law of nature, if there is one, is that each of us should look to our own interests. Nature teaches that life is every man for himself. The only basis anyone has for imputing dignity and worth to others is the conviction that all men are created in the image of God, that each of us belongs to and is loved by God. He demands that each of us respect what is His, the objects of His love. If there is no God, as Goldstein seems to hope, then human beings are no different than cattle, a herd of animals to be manipulated, exploited and slaughtered by whomever has the power and the desire to do so.

Not only must moral value ultimately be grounded in a transcendent God if it is to have any existence at all, but so, too, must our confidence in reason itself. If all we are is material stuff, chemical reactions, then what grounds do we have for believing that our cognitive faculties are reliable? They have evolved to suit us for survival, not to lead us to truth. Sometimes reason produces truth, sometimes it leads to error. What grounds do we have for trusting it if all it is is a series of biochemical reactions occuring in nerve cells in the brain? Unless there is a God who has created us and instilled in us the cognitive apparatus required to discover truth we have no basis for thinking that any belief we hold on the basis of reason is correct. Indeed, in order to argue that reason is trustworthy we have to employ our reason, and thus we must assume the very thing we're trying to prove. The only appropriate philosophy for the materialist is a radical skepticism about everything.

Goldstein wishes to be a skeptic about God but not about reason, but people like her delude themselves if they think that human reason is the key that enables them to shed the chains of theistic belief. Autonomous reason, unanchored to theistic belief, is like a mirage which appears substantial enough until it is approached, at which point it just seems to evanesce. Trust in reason alone, if pursued all the way to the end, winds up in nihilism and despair.