Well, they finally found a judge to do what no other judge in the country has been willing to do -- rule that the NSA program to make connections between terrorists at home and abroad is unconstitutional.

A federal judge in Detroit ruled yesterday that the National Security Agency's warrantless surveillance program is unconstitutional, delivering the first decision that the Bush administration's effort to monitor communications without court oversight runs afoul of the Bill of Rights and federal law.

U.S. District Judge Anna Diggs Taylor ordered a halt to the wiretap program, secretly authorized by President Bush in 2001, but both sides in the lawsuit agreed to delay that action until a Sept. 7 hearing. Legal scholars said Taylor's decision is likely to receive heavy scrutiny from the U.S. Court of Appeals for the 6th Circuit when the Justice Department appeals, and some criticized her ruling as poorly reasoned.

This puts her at odds with every other judge who has ruled on the matter -- so much for res judicata.

Not that this decision is ikely to stand.

Several dozen lawsuits have been filed around the country challenging the program's legality, but yesterday's ruling marked the first time that a judge had declared it unconstitutional. Experts in national security law argued, however, that Taylor offered meager support for her findings on separation of powers and other key issues.

"Regardless of what your position is on the merits of the issue, there's no question that it's a poorly reasoned decision," said Bobby Chesney, a national security law specialist at Wake Forest University who takes a moderate stance on the legal debate over the NSA program. "The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in."

And all she had to do to get it was ignore or dismiss as irrelevant every single case that has dealt with national security surveilance -- including those of the FISA court that provide precedent for sustaining the NSA program.

The NY Times, of course, is ecstatic that the safety of the United States has been given the backseat to the privacy rights of those who would kill America and eliminate all rights. And while legal scholars are pointing to the flaws of the case, the NY Times sees the matter differently.

But for now, with a careful, thoroughly grounded opinion, one judge in Michigan 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.

More proof that the editorial staff of this once-proud institution of our nation's most significant city has relocated to Fantasy Island.

UPDATE: As noted in the comments below, I didn't get the chance to read or comment upon the editorial of that other traditional bastion of Democrat Party liberalism -- the Washington Post. Interestingly enough, their editorial sees matters a bit different, and more in line with the legal experts -- Taylor blew it. While not at all conceding the legality of the NSA program, the editorialist makes it very clear that Taylor failed in her task of impartially and fairly assessing the evidence and rendering a decision based upon the law and the merits of the case.

THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency's program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

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.

Ultimately, the conclusion here is correct -- this is not the last word on the NSA program, and we as a nation are fortunate this is true. And if I come down upon the side of recognizing this program is acceptable under the law, the COnstitution, and the historical practices of previous United States presidents during time of war, I accept that there can be good-faith disagreement on this matter.

Posted by: Greg at 10:32 PM | Comments (10) | Add Comment
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