- The Washington Times - Sunday, August 20, 2006

There is poor reasoning, and then there is head-spinningly, jaw-droppingly poor reasoning. U.S. District Judge Anna Diggs Taylor’s angry 44-page ruling against NSA terrorism surveillance is the latter, and constitutes little more than a political stunt, with ever-so-helpful declarations like “There are no hereditary Kings in America and no powers not created by the Constitution.” The American Civil Liberties Union forum-shopped this lawsuit, handed it to a reliably left-liberal Jimmy Carter appointee in Detroit and got its desired result. It probably didn’t count on the extreme intellectual embarrassment of Judge Diggs Taylor’s opinion, however, which is now being noted by left and right alike.

The New York Times, of course, could be counted on to call the ruling — which declares NSA surveillance unconstitutional, sides with the journalist-academic-lawyer plaintiffs who alleged that their phone calls and emails were being monitored and issues a permanent injunction against the NSA program — “a careful, thoroughly grounded opinion.” But aside from the NYT-ACLU-Democratic Party axis, just about everyone commenting on the legal worth of the opinion acknowledges its exceptional logical poverty.

The Washington Post called the opinion “neither careful nor scholarly” and “long on throat-clearing sound bites.” A writer for the hard-left Web site Daily Kos called it “poorly reasoned and totally unhelpful.” “[A]n atrocity,” wrote the liberal blogger Publius: “[p]remature, unsupported, and in violation of elementary civil procedure.” “[T]here’s no question that it’s a poorly reasoned decision,” Wake Forest University national-security law professor Bobby Chesney said. “[A] few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect),” wrote the legal scholar Orin Kerr. “I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm,” wrote Brian Cunningham, a lawyer who served under both the Clinton and Bush administrations.

Reading through Judge Diggs Taylor’s opinion, it’s not hard to see why it has provoked all this criticism. It asserts the illegality of NSA surveillance, citing the Fourth Amendment’s prohibition of unreasonable search and seizure, without so much as bothering to show that unreasonable searches have taken place. It asserts that the president “has undisputedly violated the Fourth [Amendment] in failing to procure judicial orders as required by FISA, and accordingly, has violated the First Amendment rights of these Plaintiffs as well.” It orders the immediate cessation of a program which the Bush administration calls indispensable to its counterrorism efforts. Meanwhile, it ignores the central question of the debate, which is whether the president has the “inherent” right — as the Bush administration contends it does and which even President Carter asserted when he signed the FISA law in 1978 — to order warrantless surveillance.

Fortunately, just about everyone thinks the more reasonable U.S. Court of Appeals for the 6th Circuit will overturn this ruling. A stay on the judge’s injunction order is in place, so the NSA surveillance program is not in immediate jeopardy of closure.

It looks increasingly like this episode will end up damaging the anti-surveillance crowd’s prospects. If this was the best result forum-shopping could produce, it only serves to reinforce the notion that opponents of NSA surveillance stand on far shakier legal ground than they admit.

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