18/08: Three Views on ACLU v. NSA
Category: National Security
Posted by: A Waco Farmer
From the New York Times editorial, "Ruling for the Law":
"...with a careful, thoroughly grounded opinion, one judge in Michigan [Judge Anna Diggs Taylor of the United States District Court in Detroit] has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them."
From the Washington POST editorial, "A Judicial Misfire":
"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."
"The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality. Fortunately, as this case moves forward on appeal and as other cases progress in other courts, it won't be the last word."
From Wes Pruden and the Washington TIMES, "Zeal can be good, but it's dangerous":
"Before the Corporate Republicans in the government, whose instincts are to run the government as they would a large corporation where how secrecy is enforced is nobody else's business, ride off in three directions at once to denounce the ruling they should...[think of] Janet Reno, the attorney general under Bill Clinton, [who] rankled Republicans and other conservatives with imaginative assertions of dubious federal rights (think Waco, think Elian Gonzalez) to make the jobs of cops and government bureaucrats easier. Republicans, even Corporate Republicans, would rightly scream foul if a Democratic attorney general in the mold of Ramsey Clark or Janet Reno should assert the right to flout the requirement of obtaining a warrant because it was just too much trouble.
"It's not that the government has a shortage of lawyers, or a shortage of sympathetic judges. The Foreign Intelligence Surveillance Act created a secret court where the government can apply for warrants. The court has turned down government requests only three times in 30 years, and in the present climate where nobody -- well, almost nobody -- discounts the lethal threat of Islamic fascism it's difficult to imagine the court making it difficult for the president's men to get a warrant to protect American lives. "It's not the most difficult statute to comply with," says Evan Caminker, dean of the University of Michigan Law School, "but they do have to have some reasonable belief that the person may commit a crime." No fishing without a license, you might say."
For reference: the Post news story; bg and commentary from Powerline; Judge Taylor bio; the opinion.
Other good editorials: Opinion Journal; NRO.
More to come...
"...with a careful, thoroughly grounded opinion, one judge in Michigan [Judge Anna Diggs Taylor of the United States District Court in Detroit] has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them."
From the Washington POST editorial, "A Judicial Misfire":
"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."
"The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality. Fortunately, as this case moves forward on appeal and as other cases progress in other courts, it won't be the last word."
From Wes Pruden and the Washington TIMES, "Zeal can be good, but it's dangerous":
"Before the Corporate Republicans in the government, whose instincts are to run the government as they would a large corporation where how secrecy is enforced is nobody else's business, ride off in three directions at once to denounce the ruling they should...[think of] Janet Reno, the attorney general under Bill Clinton, [who] rankled Republicans and other conservatives with imaginative assertions of dubious federal rights (think Waco, think Elian Gonzalez) to make the jobs of cops and government bureaucrats easier. Republicans, even Corporate Republicans, would rightly scream foul if a Democratic attorney general in the mold of Ramsey Clark or Janet Reno should assert the right to flout the requirement of obtaining a warrant because it was just too much trouble.
"It's not that the government has a shortage of lawyers, or a shortage of sympathetic judges. The Foreign Intelligence Surveillance Act created a secret court where the government can apply for warrants. The court has turned down government requests only three times in 30 years, and in the present climate where nobody -- well, almost nobody -- discounts the lethal threat of Islamic fascism it's difficult to imagine the court making it difficult for the president's men to get a warrant to protect American lives. "It's not the most difficult statute to comply with," says Evan Caminker, dean of the University of Michigan Law School, "but they do have to have some reasonable belief that the person may commit a crime." No fishing without a license, you might say."
For reference: the Post news story; bg and commentary from Powerline; Judge Taylor bio; the opinion.
Other good editorials: Opinion Journal; NRO.
More to come...
Tocqueville wrote:
It would be wrong and regrettable, but it is certainly conceivable that the Supreme Court will eventually find the Bush administration’s NSA Terrorist Surveillance Program unconstitutional. One thing is certain, though. Such a ruling by the high Court will not rely on the handiwork of Michigan federal district judge Anna Diggs Taylor. Her effort yesterday to invalidate the program is a transparently political screed.
Judge Taylor last garnered national attention in 2002 when she was caught trying to rig the outcome of an affirmative-action case. Now, this relic of the Jimmy Carter twilight has fixed her gaze on a war against ruthless enemies who have already attacked the United States massively, serially and globally — an enemy whose leadership is unabashed in telling us, repeatedly, that its devout mission is an exponentially more devastating reprise of 9/11’s carnage.
And what does this jurist see? What she calls “the War on Terror of this administration” — not of the American people, but of George W. Bush — which “[p]redictably” seeks to evade judicial review.
Yes, here we have the thematic history of the administration that has fought to defeat jihadists … as told by a vestige of the administration that first empowered jihadists.
Judge Taylor obviously remains every bit the innovator she was when she creatively contorted the rules for impartial assignment of cases to steer that little school admissions matter away from a judge who, she apparently fretted, was not an ideological fellow traveler. (She backed down when the judge complained publicly about her “highly irregular” gambit.)
After all, who knew that lurking in the penumbras, unnoticed lo these two centuries, has been a First Amendment right to communicate privately overseas, in wartime, with enemy operatives plotting to murder Americans?
To arrive at this novel (ahem) discovery, Judge Taylor simply needed to blow past the long-settled law of standing-to-sue, as well as about 150 years of precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.
For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.
Read the whole thing here:
http://article.nationalrevi...