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The Collective
Friday, August 18, 2006
By Dr. Steven Taylor

In looking at the actual ruling in the NSA case by Judge Taylor (PDF here), I think that perhaps the WaPo editorial writers are over-reacting to a few cherry-picked lines from the opinion:

THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency’s program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

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.

Most of the document is fairly straight-forward legalese, with a few more dramatic lines towards the end.

She certainly was direct in saying that the program violated, among other things, separation of powers doctrine, the First and Fourth Amendments and the FISA law (42). She specifically and clearly ruled that:

The president, undisputedly, has violated the provisions of FISA for a five-year period (36).

The First Amendment argument is weak, it seems to me on initial consideration.

I will say that given that seriousness of this issue, it is unfortunate that the opinion is written in such a way as to generate this much discussion about style and such, rather than about the very serious legal issues at hand. In that regard, I think that WaPo is correct.

Of course, I don’t read these things all that often, so it may be that that piece is more rhetorical than it appears. Eugene Volokh, who reads these things for a living, wasn’t especially impressed. He also highlights the inflammatory language:

A seemingly angry, almost partisan-sounding opinion (”[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature,” emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes (”There are no hereditary Kings in America and no powers not created by the Constitution”), and “obviously”’s, and poor in detailed discussion of some of the government’s strongest arguments.

The “this President” line strikes me as gratuitous, but the “hereditary Kings” line, in context, did not strike me as all that partisan or inflammatory, as the paragraph in question (on page 40) simply notes that inherent powers derive from the Constitution, not the person or office of the President.

If anything, Volokh makes a valid point about the persuasiveness of a ruling on higher courts and the style in which the ruling is delivered.

Some other reactions:

  • The NYT editorial board had not trouble with the rhetoric, and indeed quoted the “hereditary Kings” line.

  • Glenn Greenwald takes the WaPo editorialists to task.
  • Patterico takes Judge Taylor to task and calls the opinion “It is one of the most embarrassing pieces of garbage I have ever read.” (He must not read much written by undergraduates…).
  • Captain Ed isn’t impressed.
  • Scott Lemieux, who agrees with the outcome of the case, also agrees that the opinion is shoddy.

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2 Comments

  1. I understand how these things work through the courts but why don’t we have a system where such large issues of national importance go directly to the Supreme Court? It seems we have just wasted time by having this case heard by a judge many consider less than stellar in legal thinking.

    In some cases I am sure plaintiffs shop around the country for sympathetic jurists who will hand down favorable decisions that, for a time, make the controversy seem solved. Just look at the many headlines blaring the program illegal. Well perhaps it is but we don’t yet really know, do we?

    In the mean time it appears the administration will either continue what has been declared “illegal” or it will cease operation of what they consider a valuable tool in keeping us safe from terrorists.

    Comment by Steven Plunk — Friday, August 18, 2006 @ 1:31 pm

  2. Here’s the Wall Street journal’s take, which left folks at my law firm rueing the political sounding opinion, even when they agreed with the result.

    Fortunately, issues thrashing around in the lower courts narrow the issues in contention by the time they reach the Supremes, which makes them far more manageable.

    Comment by Honza Prchal — Friday, August 18, 2006 @ 2:07 pm

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