In this case, of course we mean the decision by federal Judge Anna Taylor Thursday that it's unconstitutional to listen in on and collect intelligence when phone calls are made to and from the U.S. to suspected terrorists outside of the Country.
Yesterday I did a little survey of opinions on this and here's what I came up with:
The NY Times was ecstatic. Ruling for the Law - New York Times
“There are no hereditary kings in America and no powers not created by the Constitution,” wrote Judge Anna Diggs Taylor of the United States District Court in Detroit. Her decision was based on a lawsuit filed by the American Civil Liberties Union.
She said Mr. Bush violated the 1978 Foreign Intelligence Surveillance Act when he ordered the National Security Agency to spy without a warrant on international phone calls and e-mail by Americans and foreign residents of the United States. She noted that the surveillance law was passed to prohibit just this sort of presidential abuse of power and provided ample flexibility for gathering vital intelligence. She also said that the program violated the Fourth Amendment, which prohibits unreasonable searches and seizures, as well as the rights of free speech and association granted by the First Amendment.
The ruling eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.
BUT -- the NYT editorial ecstacy is short-lived, as even their own news analysis this morning Experts Fault Reasoning in Surveillance Decision - New York Times had this to say:
Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.
They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.
The Wall Street Journal, in a very thoughtful editorial OpinionJournal - Featured Article entitled President Taylor: a federal judge re-writes the Constitution on war powers had this to say:
In our current era of polarized politics, it was probably inevitable that some judge somewhere would strike down the National Security Agency's warrantless wiretaps as unconstitutional. The temptations to be hailed as Civil Libertarian of the Year are just too great.
So we suppose a kind of congratulations are due to federal Judge Anna Diggs Taylor, who won her 10 minutes of fame yesterday for declaring that President Bush had taken upon himself "the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself." Oh, and by the way, the Jimmy Carter appointee also avers that "there are no hereditary Kings in America." In case you hadn't heard.
The 44-page decision, which concludes by issuing a permanent injunction against the wiretapping program, will doubtless occasion much rejoicing among the "imperial Presidency" crowd. That may have been part of her point, as, early in the decision, Judge Taylor refers with apparent derision to "the war on terror of this Administration."
We can at least be grateful that President Taylor's judgment won't be the last on the matter. The Justice Department immediately announced it will appeal and the injunction has been stayed for the moment. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death.
So let's set aside the judge's Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The "unreasonable search and seizure" and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King's political opponents under general and often secret warrants.
Judge Taylor sees an analogy here, but she manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found.
The Washington Post wasn't too impressed either A Judicial Misfire
Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.
Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.
But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. ... Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.
Judge Taylor asserted that the plaintiffs - the ACLU and various journalists, academics, and lawyers, had their free-speech rights violated because al Qaeda members are now afraid to speak to them on the phone.
As the Journal asserts, it is kind of inevitable that some federal judge would see things this way, and now they'll be an appeal process. Sanity will prevail. Wonder what Ned Lamont thinks?
For further discussions and opinions, a good source is Ann Althouse Althouse the University of Wisconsin constitutional law professor who has a popular blog. If you scroll through the last two days of her posts there's some good stuff there. I hope she offers a detailed analysis this weekend.
UPDATE - Althouse did post - I linked to it Tom Faranda's Folly: Althouse on ACLU v. NSA "shocking"
Second row Chris Jack's 5 point try finishes a spectacular attacking move started by the other second row Ali Williams
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