Publius v. Greenwald

Updated below:

Well, Publius has offered up a direct reply to Glenn Greenwald's piece that I commented on the other day. Here's the crux of it:

Law is very much like science in that its underlying assumptions are rational. Accordingly, both scientific and legal conclusions rest upon empirical foundations. In science, you propose a hypothesis and then test it. The “result” of your test is meaningless unless it has a factual predicate.

Same deal with law. We can argue over beers about legality and constitutionality, but things are different in the realm of formal legal proceedings. There must be an established factual foundation supporting a court’s ruling. For that reason, a “correct” legal result is necessarily and ALWAYS intertwined with a factual record — indeed, you should conceptualize them as a unified concept, sort of like “mind” and “body” aren’t actually distinct concepts.

What I’m getting at is that (logically speaking) it’s meaningless to say that the First or Fourth Amendment was violated in the absence of a factual record (or on the basis of a tiny fraction of what the ultimate record will be). It’s like dividing something by zero. Constitutional violations don’t exist in an abstract vacuum. They only exist in relation to some underlying factual foundation.

I think I agree with almost everything Publius says until he says the factual record on which the judge based her decision was "a tiny fraction of what the ultimate record will be." The problem here is that the government wasn't going to offer up any more facts. It was just those facts that the government claimed it couldn't offer up because they would reveal state secrets. It did, however, share them (or at least some of them) with the judge in private in an effort to convince her that case could not be tried without jeopardizing national security. She reviewed them and concluded they would not materially alter her decision even if they were made public at trial.

So, I'm still left wondering who has the more compelling argument in this controversy.

Needless to say, a more thoroughly articulated decision would have been preferrable to what we seem to have here.


Update:
Lawrence Tribe has an e-mail to Adam Liptak of the New York Times regarding his piece trashing Judge Taylor's decision.