Appeals Court Judge: Breaking Law Okay?

Glen Greenwald at Crooks and Liars points us to an essay in The New Republic by Federal Judge Richard Posner, who sits on the Seventh Circuit Court of Appeals, about the NSA surveillance program. In effect Judge Posner says it doesn't matter whether the program broke the law. If the program was necessary, then the president should have implemented it even if he knew it broke the law. And, the Court should not interfere.

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.

This strikes me as a bizarre interpretation of law. We find someone who broke a law, but to determine whether he should be held accountable, we should first inquire whether the action that broke the law was worthwhile (in someone's eyes).

I'd be interested in comments from those of my co-bloggers who are attorneys -- or from anyone else for that matter.