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August 18, 2006
NSA Decision: Lots Of Emotion, Little Reasoning

The ruling yesterday to forbid the President to continue his warrantless surveillance of international communications involving one party within the US seems likely to find resistance in the appellate court, not so much for its conclusion but for its emotional and mostly weightless reasoning. The Washington Post notes that legal scholars found themselves underwhelmed by the legal justifications of Judge Anna Diggs Taylor, and after reading the decision myself a couple of times, I'm glad to see that my reaction matched theirs:

U.S. District Judge Anna Diggs Taylor ordered a halt to the wiretap program, secretly authorized by President Bush in 2001, but both sides in the lawsuit agreed to delay that action until a Sept. 7 hearing. Legal scholars said Taylor's decision is likely to receive heavy scrutiny from the U.S. Court of Appeals for the 6th Circuit when the Justice Department appeals, and some criticized her ruling as poorly reasoned. ...

Several dozen lawsuits have been filed around the country challenging the program's legality, but yesterday's ruling marked the first time that a judge had ruled it unconstitutional. Experts in national security law argued, however, that Taylor offered meager support for her findings on separation of powers and other key issues.

"Regardless of what your position is on the merits of the issue, there's no question that it's a poorly reasoned decision," said Bobby Chesney, a national security law specialist at Wake Forest University who takes a moderate stance on the legal debate over the NSA program. "The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in."

Judicial opinions usually state the competing arguments in a lawsuit, which read like press releases combined with legal references, and then provide a solid line of reasoning towards the eventual decision. Taylor's opinion seems to just continue the assertions into the analysis, which is filled with scolding rhetoric but not much else. She comes across as so anxious to be the first to strike down the program that she marches right past the standing of the plaintiffs, which seems questionable, to agreement with every point raised by their attorneys.

Taylor not only declares that the President has violated the Fourth Amendment but also the First Amendment by not allowing people the right to unfettered international communications. In this, she accepted the fact that the plaintiffs suffered real damage because they are journalists who have to make overseas phone calls for their job. However, the program in question only applied to telephone numbers and/or persons identified by intelligence agents as potential terrorists. Unless Taylor heard evidence that these men knowingly communicated with terrorists, it seems a stretch to accept their standing to sue over the program. (Congress would have had standing in any case, but Congress did not sue after polls showed that Americans overwhelmingly supported the program.)

No one doubts that the legal question would center on the Fourth Amendment, as well as Article II and the AUMF from September 2001. However, the inclusion of the First Amendment, as well as the condescending tone Taylor takes while invoking it, can't be supported in the context of the program as presented to the court. No one has the right to unfettered communications with suspected terrorists; otherwise, terrorists could never be surveilled. Journalists do not have the right to unfettered conversations with mafia bosses, either. A warrantless surveillance in these situations may run afoul of the Fourth Amendment, but the First Amendment doesn't come into play.

The Sixth District Appellate Court slapped a stay on this decision almost immediately, and one suspects that the justices will take a long and skeptical look at Taylor's scattershot opinion. Whether or not one agrees with the end result, the decision itself is insupportable because Taylor never bothered to provide the support necessary.

How does this play out politically? Had it happened before the plot uncovered by the British last week, I would think it would have damaged the Bush administration. It still might, in the short term. It's likely to sway moderates to the thought that the program did violate the law, while it's unlikely to convince die-hards of anything but what they already believed. The exposure of another international and complex plot against airlines might mitigate that and remind moderates and undecideds that we still face an enemy determined to kill as many of us as possible. And if Taylor gets overturned by the 6th, that will only underscore the validity of the program.

I think one can make compelling arguments against the NSA warrantless surveillance program. However, I believe that surveilling enemy communications falls within the executive powers during wartime and does not require FISA approval, a construct that (I believe) violated Article II from its inception. Taylor's opinion is only the first round anyway; this will go to the Supreme Court before it gets settled for good, and that will likely take place after the present administration leaves office.

For other views, see Power Line, Volokh Conspiracy, Patterico, and Glenn Greenwald for dissent.

UPDATE: The Washington Post editorial board takes its turn scolding Taylor for her weightless screed:

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. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

In the end, this poorly-reasoned decision may wind up damaging both Taylor's reputation and the effort to stop the warrantless surveillance performed by the NSA. Jurists will not easily lend their names in upholding such mediocre work.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at August 18, 2006 6:07 AM

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