A‘poorly-rea­soned de­ci­sion’

The Washington Times Weekly - - Editorials -

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-so­help­ful dec­la­ra­tions like “There are no hered­i­tary Kings in Amer­ica and no pow­ers not cre­ated by the Con­sti­tu­tion.” The Amer­i­can Civil Lib­er­ties Union fo­rumshopped 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-aca­demi­clawyer plain­tiffs who al­leged that their rights 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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