Judicial Activism Runs Amok - Terrorists Win
Perception is Reality....
posted by Sully
It appears that Judge Anna Diggs Taylor controversial ruling in the NSA warrantless wiretap case has more to do with Bush Derangement Syndrome (BDS) that sound legal principles. The Washington Post notes (all emphasis mine):
<<< 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.....
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 ruled 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." >>>
To give you an idea how bad this ruling was, even the left leaning Washington Post's editors, who believe Bush has overstepped his authority with the NSA Surveillance Program, chimed in with an article titled, "A Judicial Misfire":
<<< 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.... [T]hese are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents. >>>
Of course leftist politicians & activists were ecstatic:
<<< Senate Minority Leader Harry M. Reid (Nev.) and other leading Democrats hailed the ruling as a welcome check on the Bush administration. The decision shows that "no one is above the law," Sen. John F. Kerry (D-Mass.) said.
ACLU Executive Director Anthony D. Romero called the decision "another nail in the coffin" of the Bush administration's anti-terrorism strategies. "The judge very clearly points out that this, at its core, is about presidential powers," he said. >>>
Judge Taylor was appointed to the bench in 1979 by President Jimmy Carter. people far smarter than me have read her decision & concluded that this leftist Judge's ruling is not only flawed & goes against previous rulings on the use of warrantless wiretaps by the Executive Branch, but it is dripping with emotions & anger typical of the BDS afflicted left.
Scott at Power Line notes:
<<< In a sense, however, there isn't much to dissect. The opinion is almost devoid of analysis on the key constitutional provisions it relies upon (the court more or less ducks the issue of whether the intercept program is consistent with FISA and completely dodges the issue of whether the president has the inherent power to authorize the intercepts; it reasons that the Constitution trumps the statute (page 39) and that the president lacks the inherent power to violate specific constitutional provisions (pages 40-41)). It is part of my job as a litigator (and has been for more than 30 years) to read and understand judicial opinions. Off hand, I cannot recall reading an opinion as conclusory and content free as the key portions of this opinion.
Consider the court's treatment of the First Amendment. ... without any discussion of whether the government has shown... [the required] interest, she finds a First Amendment violation. Her only rationale is 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." (page 33)
What, then, is the court's basis for finding that the president "undisputedly" has violated the Fourth Amendment? Here again, the court doesn't tell us.... the judge simply concludes that "the wiretapping program here. . .has indisputably been implemented without regard to FISA and of course the more stringent standards of Title II, and obviously in violation of the Fourth Amendment."
One begins to note some circularity here. The intercept program violates the Fourth Amendment because (I guess) it was implemented without regard to FISA. It violates the First Amendment (I guess) because it violates the Fourth Amendment. And we don't need a full analysis of whether the program can be reconciled with FISA because it violates the First and Fourth Amendments.
Readers may recall that, unlike my partners, I think it's probably a close question whether the NSA program is lawful. Thus, I would have been eager to read and engage a well-reasoned decision that struck down (or affirmed) the program. Unfortunately, this court provided virtually no reasoning at all.
JOHN adds: I recall being taught as a preschooler that "just because" isn't a good argument. >>>
Scott at Power Line cuts right to the chase:
<<< Anyone who knows what legal analysis and legal argument look like -- anyone who knows the requisites of legal reasoning -- must look on the handiwork of Judge Anna Diggs Taylor in the NSA case in amazement. It is a pathetic piece of work. If it had been submitted by a student in my second year legal writing class at the University of St. Thomas Law School, it would have earned a failing grade. >>>
Captain Ed says:
<<< Taylor's opinion .... is filled with scolding rhetoric but not much else. She comes across as so anxious to be the first to strike down the program that she marches right past the standing of the plaintiffs, which seems questionable, to agreement with every point raised by their attorneys....
Unless Taylor heard evidence that these men knowingly communicated with terrorists, it seems a stretch to accept their standing to sue over the program. (Congress would have had standing in any case, but Congress did not sue after polls showed that Americans overwhelmingly supported the program.)....
[T]he inclusion of the First Amendment, as well as the condescending tone Taylor takes while invoking it, can't be supported in the context of the program as presented to the court. No one has the right to unfettered communications with suspected terrorists; otherwise, terrorists could never be surveilled....
The Sixth District Appellate Court slapped a stay on this decision almost immediately, and one suspects that the justices will take a long and skeptical look at Taylor's scattershot opinion. Whether or not one agrees with the end result, the decision itself is insupportable because Taylor never bothered to provide the support necessary. >>>
Dan McLaughlin has a blog entry titled, "The NSA Decision: Judging Without Facts or Law". He concludes:
<<< Judge Taylor’s opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process. >>>
Patterico Pontifications puts a cap on things:
<<< It is one of the most embarrassing pieces of garbage I have ever read. The idea that a sitting federal judge wrote such a shoddy piece of junk in a high-profile case should make even the most rabid Bush-hater squirm.
The word “undisputedly” is repeated again and again as a substitute for any effort at analysis or argument.
The judge leaps to decide the constitutional issue ahead of the statutory one, in contravention of well-accepted principles mandating the opposite approach.
She fails to perform balancing tests, or to address solid arguments for a warrant exception — like the border search exception to the warrant requirement.
And tomorrow, the media will shun expert analysis that would reveal these glaring deficiencies in her “reasoning.” Count on it. >>>
And so it goes. We are lucky we haven't been hit more than once with attacks as bad or worse than 9/11. The looney left has actively obstructed the Bush Administration at every turn & I mean EVERY SINGLE ASPECT of the Bush Admin, not just the war on terror. Lies, smears & calumny at every turn just isn't enough. Not even acts of sedition that aid & abet the enemy. No, now we have leftist Judges doing their part to harm President Bush with ZERO regard for the harm that it may cause to this country.
Unfrickingbelievable!
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