Editorial here:
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081701540.htmlJudge Anna Diggs Taylor's decision here:
http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdfFrom the Editorial:
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.
Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.
But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous.The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.
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.
Where to begin?!?
I'm not a lawyer, and no doubt the WP's Editorial board isn't, either. I'd like to hear from lawyers here about whether this decision is "careful or scholarly." Read her decision -- it's hardly the rant the WP portrays it to be. Is the WP's problem "angry rhetoric," "thundering" and "bludgeoning," or the actual substance of her ruling?
She "declares" (rules as a judge, and proves in her decision) that warrantless domestic spying violates the Constitution. The WP contends she's wrong. Why? Because BushCo "vigorously disputes it!" So as long as the other side contends they're right, the judge is wrong. The WP has made its own judicial decision that BushCo's disputes aren't "frivolous."
They then muddy the waters, a la BushCo, with arguments about authority for "foreign intelligence surveillance" -- not domestic surveillance without warrants, oversight or records to show WHO was being spied upon, how, and why. They complain she didn't devote many pages or any precedents to "these issues," but the case isn't about "foreign intelligence surveillance." She sites numerous precedents in her 44-page decision about warrantless domestic surveillance to address the plaintiffs' actual case, however.
On domestic surveillance, the WP says the Constitution and FISA court "purport to be" exclusive legal authorities for domestic spying (as opposed to, say, BushCo's assertions that they can do what they want above the law). Judge Taylor argues clearly that they ARE the law, and that BushCo BROKE the law. What's so "complicated" and "difficult" about that?
Finally, of course, the WP says her ruling will be challenged, "fortunately."
Doesn't it seem that everytime BushCo gets in hot water, the WP publishes an editorial that seems written by Karl Rove???
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