NSA Program Critics Disparage Taylor Opinion
The Inevitable Result of Seeking a Friendly Opinion, Rather Than a Good One
By Leon H Wolf Posted in Law — Comments (18) / Email this page » / Leave a comment »
After forum-shopping their way in front of a friendly federal judge in a jurisdiction with only tangential interest in the case, the ACLU, et. al have managed to secure a press release friendly ruling on the NSA surveillance program. However, as the New York Times notes, even those who are hostile to the program are amazingly underwhelmed; consensus among the intellectually honest objectors to the NSA program (a set that doesn't include this fellow) is that Anna Diggs Taylor's opinion was wrongheaded and worthless, except for press release purposes.
More below...
Our own Crank fisked this ridiculous opinion yesterday, and he was joined by an impressive array of legal scholars, most of whom believe that the NSA program is illegal, who slammed Judge Taylor's opinion:
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.”
"Not strongly grounded in legal authority" is legalese for "pulled from one's nether regions." FYI.
She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.
That ruling is “rather innovative” and “not a particularly good argument,” Jack Balkin, a law professor at Yale who believes the program is illegal, wrote on his Web log.
*snip*
Judge Taylor also ruled that the program violated the Fourth Amendment’s ban on unreasonable searches and seizures. But scholars said she failed to take account of the so-called “special needs” exception to the amendment’s requirement that the government obtain a warrant before engaging in some surveillance unrelated to routine law enforcement. “It’s just a few pages of general ruminations about the Fourth Amendment, much of it incomplete and some of it simply incorrect,” Orin S. Kerr, a law professor at George Washington University who believes the administration’s legal justifications for the program are weak, said of Judge Taylor’s Fourth Amendment analysis on a Web log called the Volokh Conspiracy.
Professor Kerr must not be aware that the word "obviously" is a perfectly acceptable substitute for legal reasoning.
The New York Times nails the reason for this horrible opinion dead on:
Some scholars speculated that Judge Taylor, of the Federal District Court in Detroit, may have rushed her decision lest the case be consolidated with several others now pending in federal court in San Francisco or moved to a specialized court in Washington as contemplated by pending legislation. Judge Taylor heard the last set of arguments in the case a little more than a month ago.
Or perhaps even more likely, given the possibility/probability that this case will ultimately be dismissed on "state secrets" grounds or for lack of standing, the ruling was a blatant attempt to get some judge on the record declaring the program "unconstitutional" before the cases are thrown out on alternate grounds. As Professor Volokh notes, however:
The decision has been appealed, and legal scholars said Judge Taylor had done the American Civil Liberties Union, which represents the plaintiffs, few favors beyond handing it a victory.
...
Eugene Volokh, a law professor at the University of California, Los Angeles, who presides over the Volokh Conspiracy Web log and says he is skeptical of the legality of the wiretapping program, called the decision “not just ill-reasoned, but rhetorically ill-conceived.”
“If I were the A.C.L.U.,” Professor Volokh said, “I would rather have a decision that came across as more-in-sorrow-than-in-anger and that was as deliberate, meticulous, thoughtful and studiously impartial as possible.”
What the Times failed to cover about the opinion, and what deserves to be stated over and over, is the plaintiffs' stated basis for standing: namely, that they were communicating overseas with terrorists or suspected terrorists, and when the NY Times disclosed this program, these individuals ceased communicating overseas. If we accept that these allegations are true, and that these individuals were actually subjected to surveillance, the New York Times has actually and in a serious manner hampered the ability of this country to detect potential attacks from terrorists. I hope that the editors of the Times feel great about all the "good" they have done by exposing the program.
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NSA Program Critics Disparage Taylor Opinion 18 Comments (0 topical, 18 editorial, 0 hidden) Post a comment »
A sloppy, unreasoned opinion should be easier to shoot down and in doing so either close the door to other suits or provide a strong precedent as additional barrier to those who can't wait for another 9/11.
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
How convenient that these 2 opinions were left out of your post:
Indeed, Cass R. Sunstein, a law professor at the University of Chicago, predicted that the plaintiffs would win the case on appeal, but not for the reasons Judge Taylor gave.
“The chances that the Bush program will be upheld are not none, but slim,” Professor Sunstein said. “The chances that this judge’s analysis will be adopted are also slim.”
Eugene Volokh, a law professor at the University of California, Los Angeles, who presides over the Volokh Conspiracy Web log and says he is skeptical of the legality of the wiretapping program, called the decision “not just ill-reasoned, but rhetorically ill-conceived.”
Sure, violation of the 1st ammendment is a stretch, but the fourth for sure. And a 10th grader could read FISA and know the NSA warrantless spying violates that. Not that I expect Bush to abide by any judges ruling. He's King George and he knows the constitution better than anyone.
Seems to me that a moderately dull 10th grader would have picked up on the idea that FISA doesn't govern international surveillance.
But that would ignore all the other opinions which agree the TSP is legal.
But "King George"? Really? You truly expect to post here while making moronic comments like that?
the zoo is in the opposite direction. Before you embark on your return journey might you tell us why after five years with sitting members of the FISA courts aware of the program, along with select members of both Congressional Houses, the program continued?
And why Clinton and Carter both issued directives authorizing either warrantless searches and/or wiretapping? And why Jamie Gorelick argued for said warrantless searches?
You may then proceed to unload your outrage at the Waco slaughter where a home was broken into thru the second story window, the presentation of a warrant being noticably absent but the sub machine guns being notably present making the existence of a warrant irrelevant and death inevitable. After all civil liberties is civil liberties.
Last, will you list the various court orders King George has ignored, unlike Hillary who was fined $320,000 for doing just that.
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
read it to you and you could get back to us with his analysis.
Envisioning when all that is Left is the Right.
I wish to address:
"I hope that the editors of the Times feel great about all the "good" they have done by exposing the program."
The Times' unauthorized disclosure of the classified NSA program had absolutely nothing to do with "feelings" or promoting "the public good," but rather it was done out of sheer, unadulterated hatred for President Bush and with total disregard for the consequences. But that's just my opinion.
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"The trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so." - Ronald Reagan
It's not the media's job to agree with the gov't's classification of "secret". It's their job to inform the public. There are a thousand examples of government information being classified simply to prevent embarassment.
And what exactly have been the consequences of revealing the NSA warrantless spying program? Other than spurring a healthy debate about a questionable program, that is.
the media aren't governed by US law? That's a rather exotic view, don't you think? Or are you simply saying the government should go ahead and prosecute journalists who divulge classified material?
The press, in fact, is singled out for special protection under the constitution. The founders knew that the government, no matter who was running it, needed to be watched closely.
Attempts to restrict press freedom have repeatedly failed in court. The most famous example being publication of Pentagon Papers. In the PP ruling, the Supreme Court found that the public's right to know superceded the government's right to declare anything it wanted "classified".
So freedom of the press is not held by individuals? Good of you to make that plain.
I guess it's the inevitable result of progressive thought that individuals lose all their rights whenever the central planners decide that Social Justice will be better served by assigning those rights collectively, instead.
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If you're seeing shades of gray, it's because you're not looking close enough to see the black and white dots.
the press is not singled out for protection any more than private citizens.
Your take on the Pentagon Papers is just wrong. The case was about prior restraint. The decision pointedly noted that the government could prosecute the NYT if it published them.
Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its applicability to the facts proved.
But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published.
Before you lecture anyone, make sure you know what you're talking about. This type of behavior isn't what one expects of someone who is serious.
Hey look! The government is retroactively classifying data it used to hand over to the Soviet Union. More proof that classification is often invoked by boneheads, for boneheads.
Cold War Missiles Target of Blackout
Documents Altered To Conceal Data
By Christopher Lee
Washington Post Staff Writer
Monday, August 21, 2006; Page A01
The Bush administration has begun designating as secret some information that the government long provided even to its enemy the former Soviet Union: the numbers of strategic weapons in the U.S. nuclear arsenal during the Cold War.
You say that eastern Michigan is "a jurisdiction with only tangential interest in the case". Yet the NSA has made it abundantly clear that it reserves the right to listen to anyone anywhere. That means every jurisdiction in the country is the proper jurisdiction in which to challenge the program.
"Yet the NSA has made it abundantly clear that it reserves the right to listen to anyone anywhere"
Only if you're being called by a terrorist...
Dan Barr
the case.
What the NSA has made clear is that they obey the law. The fact that a lot of you guys don't happen to like what they are doing doesnt' take away from the fact that the lawyers, appointees and civil service, in the NSA, Defense, and DoJ were pretty much in agreement that a telephone call originating from an al Qaeda operative overseas didn't require a warrant.
of all places, had this to say about Taylor's opinion...
I finally had the time today to read the whole opinion in ACLU v. NSA... I mean, that was the whole opinion, right? I kept shuffling the pages around and looking under the table to see if there were some pages I missed...
What the hell? Was there no law clerk who had enough nerve to say, Judge, it can't go out like this? How do you ever get to the level of arrogance that keeps you from seeing when an opinion is this patently deficient? Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to? I can see slipping into abject carelessness in a low profile case, but this is such a conspicuous case. I simply cannot fathom how a judge with any sense at all, with any assistance from law clerks who were not cowed into ridiculous submission, would file a case in this form.
Read the whole article AND the comments here...
You also shouldn't miss Ann taking Larry Tribe to the woodshed for his defense of Taylor's conclusion while not defending her opinion. No shrinking violet in the face of Tribe, Ann starts like this...
Well, now I feel like criticizing Tribe's rhetoric. Could you put that in plain English?
Excellent work by Ann, a must read here...
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If "pro" is the opposite of "con", what is the opposite of "progress"?
Viggster, you still out there? You'll never forgive Matt Drudge for going with the Lewinsky story, a depraved President getting BJ's in the oval office, but the advertising of a intelligence operation in wartime not only doesn't bother you, you think it's an obligation yet.
Your comments about re-classification have nothing to do with the validity of the NSA program or it's classification, why not discuss the weather, at least that would had some kind of pertinence.
Thanks for reminding us of liberal priorities though.
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
Yet another outstanding review of the ruling.
I am most amazed at section 2, the State Secrets Privilege. This intrigues me because in the late 1930's there were articles in Popular Mechanics magazines detailing the newly discovered ability to create a fission type atomic bomb. It wasn't until 1941 when the Manhattan Project started that all references to atomic weapns development was closely restricted.
From this standpoint, the New York Times should have reported the progress the US was making on the development of the atomic weapons since it was then public knowledge that Uranium was a fissile material.
The internet has pretty thorough sources on the Manhattan Project but if anyone is in Albuquerque, NM and has a few hours to kill, the Atomic History Museum is highly reccomended. http://www.atomicmuseum.com/