Federal District Judge Anna Diggs Taylor has ruled the NSA wiretaps to be unconstitutional. Her decision has been appealed and will almost certainly be overturned by an appellate court. Meanwhile, although the Dems are gleeful about the ruling, more sober observers seem to think that it's pretty disgraceful:
PowerLine's lawyers find the decision completely devoid of legal reasoning, sound or otherwise. One of them says:
Readers may recall that, unlike my partners, I think it's probably a close question whether the NSA program is lawful. Thus, I would have been eager to read and engage a well-reasoned decision that struck down (or affirmed) the program. Unfortunately, this court provided virtually no reasoning at all.
The Washington Post, no friend of the Bush administration, roasts the decision over a hot flame:
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.
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.
Apparently, Judge Taylor believes that the constitution says whatever she wants it to. It is astonishing to us that the president's political opponents feel so free to claim that he's doing something nefarious by employing these surveillance techniques to protect the lives of Americans when precisely what the law is on the matter is so murky that not even a federal judge can discern what the exact violations of the law are.
That being the case, shouldn't the president be given the benefit of the doubt until the courts finally sort this out and clarify exactly what the law prohibits and what it allows?
Speaking of the delight with which the Democrats have received this decision, Chuck Asay asks a rather pointed question:
