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The Asylum

Welcome to the Asylum. This is a site devoted to politics and current events in America, and around the globe. The THREE lunatics posting here are unabashed conservatives that go after the liberal lies and deceit prevalent in the debate of the day. We'd like to add that the views expressed here do not reflect the views of other inmates, nor were any inmates harmed in the creation of this site.

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Saturday, August 19, 2006

Anna Diggs Taylor: Not Making Friends, or Good Impressions

The New York Times' Adam Liptak reports that Judge Taylor is being shunned by many in the legal field with her nutter decision nixing the NSA Terrorist Surveillance Program. While they applauded this ruling initially, legal scholars are offering her no help when pundits coming a-knocking for some solid jurisprudence in the case:

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.

And that, folks, is putting it mildly. Precedents ignored? I'd say so. Katz, US v. US District Court, Hamdi, Butenko, and In re: Sealed Case. The last one of which is the most recent precedent in hand. She ignored them all (and quite a few more as I continue my reading into this case), and it was to serve her preferences rather than upholding the law; namely the president's powers under the Constitution.

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.

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.

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. (Personal note here***The link will take readers to the posts at the Volokh Conspiracy related to this case. Read them, and understand how flimsy this decision is.)

Judge Taylor gave less attention to the more modest statutory argument that has been widely advanced by critics of the program. They say that it violates a 1978 law requiring warrants from a secret court and that neither a 2001 Congressional authorization to use military force against
Al Qaeda nor the president’s constitutional authority allowed the administration to ignore the law. A recent Supreme Court decision strengthened that argument. Judge Taylor did not cite it.

She didn't cite Sealed Case either, despite the fact that in the opinion, the FISA Court of Review stated this:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

This is the most recent decision, in hand, that can be used to destroy Judge Taylor's reasoning. This comes directly from the court with oversight of the FISA court. They state, as of 2002--when this case was decided--that it is the belief that the president does have "the inherent authority" to order and conduct warrantless surveillance in the name of national security. Judge Taylor obviously missed the memo on this case.

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.

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. On the other hand, they added, the appeals court is bound to examine the legal arguments in the case afresh in any event.

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.”

While we respect Cass Sunstein a great deal, given his credentials and experiance, we must disagree on this particular issue. The problem is that those on the liberal side of this decision continue to cite this as a Fourth Amendment case, and it's not. By rendering this decision Judge Taylor has called into question the powers of the president during a time of war; a point which the president is allowed to execute additional powers. Among these are things concerning the US military, and the NSA serves as one of the primary sources of military intelligence. Every director of the NSA has been in the active-duty military. And for all intents and purposes, it's oversight falls within the same confines as the military's. Under this teeny bit of reasoning, the NSA was following the commander-in-chief's orders to surveil foreign agents loyal to, or connected with, al Qaeda post 11th September. This is the president's power to wield, not the judiciary's.

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.”

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.”

And we should all thank God for that. At least when this goes before the Sixth Circuit Court of Appeals we have a better chance at a proper review, with a fresh set of eyes. Those eyes, hopefully, will be ones unbiased by personal ideas, and driven by solid, set precedent and jurisprudence. The judge's legal reasoning has little to do with the law, and seems more like she is preaching to the president about a topic totally unrelated to the case.

Judge Taylor, a longtime trial court judge who was appointed by President
Jimmy Carter, enjoys a good reputation among lawyers who have appeared before her, according to anonymous comments collected by the Almanac of the Federal Judiciary.

“Lawyers interviewed rated Taylor high in legal ability,” the almanac concluded. The eight quoted comments ranged from enthusiastic (“She is smart as hell”) to lukewarm (“She is competent”).

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.

And thank you Mr. Schmidt for doing your research into the legality of the program, and what is in hand right now to go off of. I might also add that this isn't the first time this program's been used. Carter used it, So did Reagan. Bush, Sr. found it's uses and so did Clinton. The people's reaction that this is a "new thing" just cooked up by the Bush Administration is disingenuous. And when I say "people" I mean the pundits and the legal scholars out there that are outraged that this sort of thing is going on. And if they really didn't think that something like this was occurring (as other nations attempt to do to us), then they're incredibly naive.

The decision also failed to cite a Supreme Court decision in June helpful to the plaintiffs, a group of journalists, scholars, lawyers and nonprofit organizations. The decision, Hamdan v. Rumsfeld, struck down the administration’s plans to try prisoners at Guantánamo Bay, Cuba, as war criminals. It was widely interpreted as a rebuke to the administration’s expansive conception of executive power.

Hardly a rebuke as the president is going to Congress for the authorization for the tribunals; a step that was skipped in the votes for the war. Congress, under Article I, has the sole duty to "constitute Tribunals inferior to the supreme Court."Congress must do this; it isn't automatic when war is declared. The decision simply tells the president that he needs Congress to convene those tribunals. It was something not yet done, and the Supreme Court upheld the Constitution in that case.

“After Hamdan,” Professor Sunstein said, “this program is not easy to defend.”

Professor Balkin said there was a rushed quality to Judge Taylor’s decision, but he added that her reason for moving fast may have been the laudable one of assuring that more than one appeals court would have the opportunity to pass on the legality of the program.

Martin S. Lederman, a former Justice Department official who believes the program is illegal, said he found the contrast between Justice
John Paul Stevens’s approach in Hamdan and Judge Taylor’s in the wiretapping case telling.

“Justice Stevens was criticized for not including sound bites and sweeping constitutional interpretation,” Mr. Lederman said. Judge Taylor’s decision, by contrast, he said, “was meant for headlines.”

And that was the biggest problem with her decision. It made plenty of headlines. But so did Roe, and it's legal reasoning is equally twisted. (That, ladies and gentlemen, is also admitted on both sides of the ideological spectrum in the legal field; even Justice Ginsburg agrees.) And the moment the thing made headlines, legal scholars took a look at it, and few that I heard (Erwin Chemerinsky, for one) agreed with her decision without any sort of reasonable criticism. But, by the next morning, lawyers from across the country--Eugene Volokh to Orin Kerr, John Eastman to Mark Levin--were shredding the decision. Even the boys at PowerLine joined in the dogpile.

But this is what we get when judges like this decide based on their beliefs to "right a wrong" rahter than allowing the system to actually work, unhindered. Had Congress truly felt that the president had overreached on this issue, they have one course of action--change the Constitution, and install limits to the president's wartime powers. They haven't done that. The closest that we've come to such a thing is Arlen Specter holding hearings regarding this program.

The simple fact is that this case has little, if anything, to do with the Fourth Amendment. It has everything to do with the powers of the president, and whether he can take the course of action allowed to him under the inherent meaning of his wartime powers. Those powers rest solely on the idea that as commander-in-chief he has the solemn duty to protect this nation from harm. This program is doing just that. Going further, Judge Taylor also cited a First Amendment argument that is absolutely baseless.The claim is that these people were forced to take this route to protect their free speech rights (remember that these are lawyers and journalists making the complaints here; their sources don't feel it's safe to speak to them). And once the appeals court crushes that argument, this case will be well on it's way to being overturned.

Publius II


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