Federal Judge Urges Government Law-breaking

By John Amato — January 27, 2006

Federal Judge Urges Government Law-breaking

Richard Posner is a Federal Judge on the 7th Circuit Court of Appeals and is thus required by the Code of Judicial Conduct to "participate in establishing, maintaining, and enforcing high standards of conduct." And yet -- in patent violation of that obligation -- Posner, ever since the NSA scandal began, has been running around defending the Bush Administration by arguing that the the rule of law is irrelevant, that the need for the President to obey the law is overrated, and that we should allow and even want the President to break the law when doing so is for our own good.

The reason this NSA scandal is so significant is because it arises from the Bush Administration's claimed right to violate the law whenever it deems it in the national interest to do so. That really is the Administration's expressly embraced theory. But when the President has the power to violate whatever laws he wants, we become, by definition, a country that dispenses with the rule of law and we begin to live in a state of authoritarian lawlessness. The NSA scandal is not about eavesdropping but, instead, is about whether we are going to discard the basic and founding principles of our country and -- in the name of our fear of terrorism -- choose to live in a system where the President is no longer bound by the rule of law.

Federal Judge Urges Government Law-breaking

The judiciary's function is to uphold and apply the law, and yet here we have Posner, a prominent Federal Judge, literally urging that the rule of law be discarded and replaced with an authoritarian Presidency which possesses the monarchic power to violate criminal laws. It is somewhat jarring that we are actually at a point in our nation's history where we are openly debating whether the President has the power to break the law, but it is even more extraordinary to hear a federal judge openly justifying and advocating the commission by the Government of criminal acts -- on the ground that those criminal acts yield good results.

Several weeks ago, Posner published an Op-Ed in The Washington Post, in which he essentially acknowledged that the President's eavesdropping program is illegal, but argued that it was nonetheless proper because we should want the President to break laws which he believes are unduly restrictive. Posner thus defended Bush's warrantless eavesdropping not on the ground that it was legal, but on the ground that the law which bans such eavesdropping is too restrictive- as though the President can violate laws he deems to be "too restrictive." And then from this premise, Posner actually argued that the illegal eavesdropping program did not go far enough, but instead should be expanded to include-innocent people, such as unwitting neighbors of terrorists, [who] may, without knowing it, have valuable counterterrorist information.

As staggering as it was to read a defense of outright law-breaking from a federal judge in that Op-Ed, that pales in comparison to the new essay from Judge Posner in The New Republic, in which he expressly urges that the Government ignore the mandates and constraints of the law. He thus authors this truly unbelievable, and reprehensible, argument devoted to his opposition to the rule of law and to his belief that the President can and should violate bad laws -- remember, this is from a federal judge:

The revelation by The New York Times that the National Security Agency (NSA) is conducting a secret program of electronic surveillance outside the framework of the Foreign Intelligence Surveillance Act (FISA) has sparked a hot debate in the press and in the blogosphere. But there is something odd about the debate: It is aridly legal. . . .

Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation's defense, and its impingements on civil liberties are slight. That would not prove the program's legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry.

So, according to Judge Posner, the legality of warrantless eavesdropping is secondary, if not outright irrelevant. Discussions of whether the President broke the law are-"aridly legal." That's because law is merely a "tool of social policy," and one that is flexible. So, before we get to the annoying and irrelevant question of whether George Bush's eavesdropping is illegal, we first have to assess the consequences of the program,-because if it yields good results, then it does not matter if it is prohibited by the law. As long as the eavesdropping is vital to the nation's defense, and had great merit, then it ought to be done, and even celebrated, even though it is against the law.

At bottom, this really is the central, indeed the only, defense which Bush followers have in the NSA scandal -- that although the President ordered exactly the warrantless, secret eavesdropping which the law expressly prohibits and makes it a criminal offense to engage in, the President has the right and the authority to break the law, and we should be happy that he did, because it's for our own good. Judge Posner is actually arguing that the law is secondary -- if not irrelevant -- when compared to the "social policies that are at stake." Thus, if George Bush decides that good results will accrue from breaking the law, he is free to do so.

Views like this -- which, by definition, advocate a form of authoritarian lawlessness -- are disturbing and grotesque no matter who is advocating them. But the fact that these views are being peddled by a federal judge is more than just disturbing. It is a violation of every oath, obligation and function a judge is required to perform.

That we have even a federal judge running around (without much controversy) defending the view that George Bush has the right to violate the law is a rather compelling reflection of how far astray from our country's most basic principles and values we have wandered, and how far into the pit of lawlessness we have descended, under this Administration. And there is still three full years left to go.

--posted by Glenn Greenwald