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August 22, 2006
Wiretap Ruling Panned by Both Sides
Now that legal experts have been able to go over the recent ruling on the constitutionality of the NSA wiretaps, they're not impressed, even the ones that don't like the wiretaps.
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.
This from a Carter appointee. The results of a single presidential election can have ramifications long after he leaves office.
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."
The main problems, scholars sympathetic to the decision's bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.
Much like other liberal judges who rule based on, say, emanations and penumbras, rather than the text. The "living document" way of looking at law and the Constitution has brought us decisions that legal experts from both sides of the aisle can't defend.
And if I may toot my own horn for just a bit, this point...
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.
...sounds very much like my initial critique that her explanation made wearing a wire to a mob meeting unconstitutional. I am not a lawyer and still I managed to pick this up. This says nothing about my legal knowledge, frankly, but speaks volumes against this poor ruling.
Critics of the wiretapping also don't understand why Judge Taylor's ruling didn't take into account some of the more obvious legal issues, like the FISA court law. Even supporters of the program could tick off lists of precedents that could have been used.
Supporters of the program, disclosed by The New York Times in December, suggested that Judge Taylor’s opinion was as good a way to lose as any.“It’s hard to exaggerate how bad it is,” said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor’s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2002 that said it took for granted that Congress “could not encroach on the president’s constitutional power” to conduct warrantless surveillance to obtain foreign intelligence.
Predictably, the ACLU will take the worst ruling and frame it as wisdom from Solomon.
Anthony Romero, the executive director of the A.C.L.U., said Judge Taylor’s decision represented vindication of established limits on the scope of executive authority.“Ultimately,” Mr. Romero said, “any doubts about the decision will be taken up on appeal by sitting federal judges rather than pundits or commentators.”
No, the doubts will most likely stick around. According to Prof. Cass Sunstein, a rather liberal law professor at the University of Chicago, the case, while he thinks it will ultimately be won by the plaintiffs, won't be won because of anything Judge Taylor said.
“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.”
Posted by Doug at August 22, 2006 11:58 AM
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Comments
This is a very interesting development. Also interesting is the information coming out that the judge is an officer of a non-profit that gave money to the plaintiffs, namely the ACLU. As an aside, I would not necessarily call Cass Sunstein "liberal" in the modern sense of the word. He tends to march a bit to his own drummer. On many issues, he would line up with political liberals, on others he could be characterized as more politically conservative, although he would eschew that label.
Posted by: Mark Sides at August 23, 2006 11:50 PM
True enough about Sunstein's positions, but even when he was interviewed by Hugh Hewitt on the NSA wiretap issue, he did accept the "liberal" label.
Posted by: Doug Payton at August 24, 2006 05:56 AM
Well, it's hard to argue with that.
Posted by: Mark Sides at August 24, 2006 07:38 AM