AP: Judge nixes warrantless surveillance
A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.
U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy.
Alas, I haven’t time right now to read the opinion [PDF] and judgment and permanent injunction order [PDF].
UPDATE: Jack Balkin read it and isn’t impressed by the quality of the reasoning.
OK, help this layman out here, prof. I know legal reasoning is important to you and your ilk but what’s the practical impact? As this issue moves up the judicial food chain, will argument be restricted to Judge Taylor’s reasoning or will there be opportunity to re-frame the argument?
Also I note that the AP report says this is the first decision “to strike down the National Security Agency’s program.” May we expect others which might be based on more solid reasoning?
As far as I understand it, the arguments are only confined to the issue, not the method of their reasoning. The Court’s reasoning is interesting to accademics and practitioners in the abstract because we can analyze whether the decision will hold up on appeal. I am working on getting a paper published right now that deals with whether courts should even hear this issues on account of the political question doctrine, the concept that the courts won’t review actions of the government that are purely from the exercise of the legislative or executive political powers. As far as the arguments and reasoning being weak, it means an appeals court is less likely to uphold the trial court’s decision. I have to add this decision and Hamdan to my paper in the next week or so, so I may have more to say on the subject in the near future.
As to your second point, it’s possible for other courts strike down the program, but its unlikely given this decision since the order states that the program must stop entirely, and other courts may refuse review pending the disposition of this case. Though, don’t quote me on that.
The following are excerpts from an article, very pertinent to this thread, that was posted on Jack Balkin’s blog a short while ago.
The Bloggerati response to Judge Taylor’s ruling in the NSA Case
Laurence Tribe
[This posting was based on an e-mail addressed to Adam Liptak at the New York Times]
[…]
It’s altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President’s eye [ heh] than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.
Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. [Prof. Tribe lists several other things he would have done differently] But as legal academics many of us — and I don’t exclude myself from this observation — sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.
When a presidential program that wouldn’t have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program’s critics have in fact engineered a statutory “fix” that amounts to little more than a whitewash in the offing — when all these things are true, it’s not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.
FULL TEXT