A Stitch in Haste

One of the most basic principles of Anglo-American jurisprudence is that courts can only act on cases actually brought before them. Unlike an activist politician who can introduce legislation willy-nilly for no other reason than because he thinks it's a neat-o idea (or an activist president who can invade another country because he thinks it's a neat-o idea), a judge is always a mere spectator until litigants actually make their way into the courtroom. So, for example, no judge can decide, "just because," that a same-sex marriage ban is unconstitutional or that a city cannot ban spray paint and markers. He has to wait for a case to reach him. It is by definition impossible for a judge to be truly "activist."

With that in mind, why should anyone give any kind of a damn about this:

Utah Sen. Orrin G. Hatch said yesterday that at least two of the chief judges on the secretive court that approves warrants for intelligence surveillance had been informed since 2001 of the National Security Agency's domestic spying program.

"None raised any objections, as far as I know," said Mr. Hatch, a Republican member of a Select Committee on Intelligence panel appointed to oversee the NSA's work.
...
When asked whether the judges somehow approved the operations, Mr. Hatch said, "That is not their position, but they were informed."

There are eleven judges on the Foreign Surveillance Intelligence Court. All are sworn to secrecy about their caseload (and even ordinary judges rarely talk publicly about their cases or about politics generally). So the fact that two out of eleven were "briefed" about the NSA's program of eavesdropping on American citizens on American soil, and the fact that they said and did nothing about it, means — what exactly? The two judges had no case before them with which to pass, well, "judgement" on the program. And they could not have discussed it publicly even if they wanted to.

So I ask again: Why should anyone give any kind of a damn about this? How does this in any way affect the legality, or the egregiousness, of the program?

Similar thoughts at Media Matters.

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Speaking about "briefing," the White House is so certain that it did the right thing by "briefing" only select members of the Congressional leadership that it has now completely flip-flopped on the issue:

The administration previously had insisted on briefing only a small fraction of Congress's 535 members, saying larger gatherings were likely to result in leaks of secret information. But Democrats and some Republicans had objected, and Gen. Michael V. Hayden — President Bush's nominee to be CIA director — faced the awkward prospect of a confirmation hearing tomorrow in which he could tell some Senate intelligence committee members, but not others, some details of the administration's surveillance programs. Yesterday the White House agreed to brief all 21 members of the House intelligence committee and all 16 of the Senate panel's members.

So now we see yet again that principles never, ever trump politics. Selective briefing of congressional leaders (an extra-constitutional practice, incidentally) was "essential," but now not as essential as getting the president's NSA scandalmeister confirmed as Director of Central Intelligence — where he may well craft even worse domestic spying nightmares.

So much for what is and is not "crucial to the War on Terror."