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August 19, 2006
The Taylor Embarrassment

The more people read of the opinion by Judge Anna Diggs Taylor ruling against the government in the NSA's terrorist surveillance program, the less impressed even the program's opponents become. Adam Liptak reports in the New York Times -- whose editorial board hailed Taylor's jurisprudence -- that legal analysts have little support for Taylor's reasoning:

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.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

One of the first arguments that legal analysts attacked, according to this report, was the novel notion that the NSA program violated the First Amendment as well as the Fourth. No one that Liptak contacted would support that assertion. Another issue with Taylor's analysis is her refusal to engage the government arguments in a substantive way, dismissing them in a hail of "obviouslys". She also failed to review the pertinent precedents, even those supporting her overall decision. Most felt that Taylor rushed the decision in order to garner headlines.

It brings up an interesting question, one raised by Patterico yesterday. Judicial diktats like this one have the same effect as any unconstitutional efforts by the executive or by Congress, and all that is left is partisan bickering over whether the ends justified the means. Taylor's weightless opinion reduces itself to a basic because I said so, which is exactly the same impulse for which she excoriates the Bush administration in her decision. The only saving grace is that Taylor doesn't get the last word, and in this case one can hardly say that she had the first word, either.

Taylor's lack of rigor in examining the legal arguments presented in this case will force the appellate court into a position it usually avoids -- being the finder of fact. It now must review the evidence and listen to all the legal arguments, which must be made a second time, in order to straighten out the mess that Taylor made of her responsibility to give all sides a fair hearing. Liptak's sources believe that the appeals will uphold the decision while completely rejecting the opinion Taylor issued in delivering it. I predict that the appellate court will throw the entire case out for lack of standing. We will all know soon enough, but in the meantime, the NSA continues to operate its program under a stay issued by the Sixth Circuit appellate court.

UPDATE: I wrote Sixth District when I meant Sixth Circuit; thanks to Barnestormer in the comments. He also raises another important point. The strange argumentation that led Taylor to conclude that the NSA program violated the First Amendment is the only manner in which these plaintiffs had standing to bring the suit. If the appellate court rejects that portion of her ruling, the entire lawsuit goes out the window.

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Posted by Ed Morrissey at August 19, 2006 8:38 AM

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» The Taylor Embarrassment from Old War Dogs
See my previous related post here. The Taylor EmbarrassmentEd Morrissey The more people read of the opinion by Judge Anna Diggs Taylor ruling against the government in the NSA's terrorist surveillance program, the less impressed even the program's oppo... [Read More]

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