Crippling terrorist surveillance

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Six weeks after she ordered President Bush to halt a wartime surveillance program used to prevent al Qaeda terrorist attacks, U.S. District Judge Anna Diggs Taylor has given the National Security Agency (NSA) an ultimatum and a deadline: Responding to a complaint filed by the American Civil Liberties Union, the judge on Thursday ordered that the program be shut down by Oct. 5 if the agency cannot obtain relief from a higher court.

The Justice Department is appealing to the 6th Circuit Court of Appeals to stay Judge Taylor's ruling. But her decision (combined with the Senate's inability to join the House in approving legislation governing federal surveillance law) creates uncertainty about our ability to monitor the jihadists targeting this country. Judge Taylor's latest ruling also serves as a reminder that some segments of the federal judiciary are heavily invested in undercutting the president's ability to stop the next attack.

For Judge Taylor, appointed to the court by President Carter, the priority appears to be finding a constitutional rationale for shutting down the NSA's Terrorist Surveillance Program, authorized by President Bush in the months following September 11. Under a presidential order signed in 2002, the NSA has monitored international telephone calls and e-mail messages without warrants in which one or both parties are thought to be involved in al Qaeda. (The agency seeks warrants when both parties are inside the United States.) The program remained secret until the New York Times reported its existence in a front-page on Dec. 16, 2005, article. The paper ran the story after rejecting appeals from the Bush administration, who asked the NYT not to publish it on grounds that doing so would advertise the existence of the program to al Qaeda.

Once reporters learned of the program, the administration was placed in a difficult if not impossible position: 1) say nothing about the information it has provided about the terrorists targeting this country and create the false impression that it isn't helping the war effort; or 2) talk in great detail about what the program does and run the risk of tipping off the terrorists and jeopardizing anti-terror operations. The administration opted for something in the middle, explaining some of the program's successes. For example, in 2002, it helped uncover Iyman Faris, an Ohio truck driver and naturalized U.S. citizen, who pleaded guilty three years ago to plotting to bring down the Brooklyn Bridge. It also prevented a plot involving fertilizer bomb attacks on British train stations and pubs.

As CIA chief Michael Hayden, who formerly headed the NSA, said: "Had this program been in effect prior to 9/11, it is my professional judgement that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such."

Despite all of the above arguments and the fact that the courts have recognized that the president has wide-ranging powers to order such measures in wartime, Judge Taylor ruled Aug. 17 that the program was unconstitutional, violating the First and Fourth Amendments. Her ruling was hailed as evidence of the president's perfidy by Democratic partisans on Capitol Hill, including House Minority Leader Nancy Pelosi and Senate Minority Leader Harry Reid. But within 48 hours, the NYT reported that a consensus seemed to emerge in the legal community, including constitutional scholars who questioned the administration's legal rationale, that Judge Taylor's legal argument was seriously flawed. For example, Orin Kerr, a law professor at George Washington University who believes the administration's legal justifications for the program are weak, criticized the judge's failure to acknowledge a "special needs" exception to the Fourth Amendment's requirement that the government obtain a warrant before engaging in surveillance unrelated to routine law enforcement. Judge Taylor's ruling, he said, consisted of "just a few pages of general ruminations about the Fourth Amendment, much of it incomplete and some of it simply incorrect."

Now, on the basis of such specious reasoning, she is ordering that the program be shut down this week. Judge Taylor's ruling is breathtakingly akin to Senate ideologues, most of them Democrats, who have done everything possible to prevent passage of legislation providing legal authority for such vital programs. We hope voters remember this at the polls next month.