Injudicious Judge

By Scott Horton
September 23, 2:53 PM, 2011
Courtesy Of "Harper's Magazine"

Earlier this week, the United States Court of Appeals for the Second Circuit let stand, by a 6–6 vote, a panel decision authorizing an ACLU suit challenging warrantless surveillance of a group of scholars and journalists. At the core of the lawsuit is a challenge to surveillance under the FISA Amendments Act of 2008. The suit raised a number of extremely serious questions about the legislation, seeking injunctive relief that would have restricted its use for surveillance in the future. Justice Department efforts to block the ACLU suit have focused on such technical questions as standing, which governs who can bring a lawsuit and when.

When the Second Circuit opinions were released, most were scholarly discussions of the law. But one was not—an opinion issued by Chief Judge Dennis G. Jacobs. Revealingly, no other judge joined the Jacobs opinion, in which Jacobs called the lawsuit “frivolous” and stated that it was akin to a “plaintiff’s allegation that the C.I.A. is controlling him through a radio embedded in his molar.”

The plaintiffs—all of whom are involved in studying and writing about terrorist groups, and some of whom are eminent authorities regularly relied upon by the U.S. government—express concern that as FISA is apparently being interpreted, their communications would be routinely intercepted and examined by the NSA. The NSA has not credibly denied their contention. Indeed, retired senior NSA officials like Thomas Drake have openly acknowledged that such practices were routine during the Bush years.

A hardened civil-liberties skeptic could of course argue that the government is within its rights to engage in the warrantless surveillance of its citizens, but to compare those who complain about it to tin-hatted loons is irrational. The balance of Jacobs’s opinion was long on hyperventilating political rhetoric, and short on facts and legal argument.

Back in 2007, Jacobs told Adam Liptak of the New York Times, “I haven’t opened up a law review in years.” A review of his opinions bears this out. Indeed, there, no authority appears to surpass Dennis G. Jacobs. A noteworthy example is an opinion addressing the suit brought on behalf of Maher Arar, the Canadian computer engineer who was sent to Syria on the orders of Deputy Attorney General Larry D. Thompson. Arar was brutally tortured in Syria, though it turned out he had been sent there because of some false information given to the Americans by their Canadian counterparts. Canada paid Arar millions in restitution, but the Bush Administration refused even to talk to him and sought to block his suit. In the Second Circuit opinion dismissing it, Jacobs decided that the fact that Canada wouldn’t accept Arar back homewas essential to the resolution of the case. Unfortunately for Jacobs and his colleagues, however, this wasn’t, in fact, a fact: Canada had agreed to receive Arar. So the Second Circuit opinion in a highly visible case turned on an invention by Judge Jacobs, making it one of the most embarrassing decisions in the court’s history—one it has yet to correct.

Jacobs’s contempt for lawyers who represent Guantánamo defendants pro bono is famous. Indeed, he made it the subject of a lecture to a conservative audience in which he suggested that “anti-military animus is pervasive” among legal elites. His argument would be familiar to those who listen to the radio broadcasts of Rush Limbaugh, but not to those who have dealt with the pro-bono programs of the law firms involved in Guantánamo defense work, which is founded on a partnership between the firms and uniformed military lawyers, who serve as detailed counsel.

“Great harm can be done when the legal profession uses pro bono litigation to promote political ends,” Jacobs argued in another lecture. This is particularly the case when lawyers oppose the government, he said, terming this an “anti-social influence.” In the Jacobs view, citizens apparently have no business questioning the decisions their government makes on national-security grounds; those who do so are know-nothing busybodies; and the courts should keep out of the entire area. Judge Jacobs’s views are common enough among judges addressing national-security issues around the world, but they are quite unusual among those sitting in democratic societies. Glenn Greenwald sheds more light on his biases and writings here.