Friday, August 18, 2006

More on the ACLU vs. NSA decision by Judge Anna Diggs Taylor

Patterico points to a number of lawyers (real lawyers not just people who watch a lot of Law and Order like me) who like the results of Judge Taylor's ruling, but agree that the ruling itself is drek. 

Eugene Volokh, Orin Kerr, Dale Carpenter

A lot of words like:

“seems not just ill-reasoned, but rhetorically ill-conceived.”, “I confess that this has me scratching my head.”, and "Judge Taylor’s opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process."

are used.  hardly a ringing endorsement of the reasoning in a landmark case.

Patterico's own opinion is equally harsh:

I have now read the opinion. It is one of the most embarrassing pieces of garbage I have ever read. The idea that a sitting federal judge wrote such a shoddy piece of junk in a high-profile case should make even the most rabid Bush-hater squirm.

The word “indisputably” is repeated again and again as a substitute for any effort at analysis or argument.

The judge leaps to decide the constitutional issue ahead of the statutory one, in contravention of well-accepted principles mandating the opposite approach.

She fails to perform balancing tests, or to address solid arguments for a warrant exception — like the border search exception to the warrant requirement.

Bryan Cunningham at National Review is equally harsh:

"we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it."

Mr. Cunnigham then goes on to break up the problems into easily digestible pieces:

Process Fouls: before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps

Ignoring Contrary Legal Authority: the Keith court stated that “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

(In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action.

Appeals Court Cherry-Picking

Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention [a number of items that modify or run counter to Youngstown Sheet and Tube]

The offhand way the First and Fourth Amendment issues are dealt with.

Mr. Cunningahm summarizes with:

Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2” British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

That seems to sum it up pretty well to me.

NSA, Wiretaps, CIA, Politics, ACLU, Loons, Current+Affairs, Terror, Global+War+on+Terror, Bush, Carter, Judges, New+York+Times

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