I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, August 22, 2006

Two critical, under-recognized points about Judge Taylor's ruling

Following up on the post above responding to Orin Kerr, Ann Althouse and similar law professor critics of Judge Taylor's opinion, I want to underscore two other crucial points:

(1) The vast bulk of the criticism of the court's opinion has focused on her finding that warrantless eavesdropping violates the Fourth and First Amendments. But whether warrantless eavesdropping violates the Fourth Amendment (let alone the First Amendment) has always been a secondary issue (an important issue, to be sure, but not the issue which gave rise to the NSA scandal).

The predominant issue has been, and still is, not that the President's warrantless eavesdropping program is unconstitutional, but that it is illegal, because it is a felony under FISA to eavesdrop on Americans without warrants. I have not seen very much criticism at all of the court's analysis of that issue, where she quite correctly applies the Supreme Court's Yongstown ruling and rejects the administration's only two defenses to that law-breaking (i.e., that Article II powers cannot be restricted and that the AUMF implicitly authorizes violations of FISA). The court's ruling on those two issues is perfectly competent and clear. That finding, by itself and irrespective of the Fourth Amendment issue, is sufficient to demonstrate that the President's NSA program is illegal.

(2) For all the attacks on the quality of Judge Taylor's opinion and her status as a Carter-appointed judge, virtually the entirety of her ruling is amply supported across the ideological spectrum.

Most legal commentators (including Professor Kerr) have agreed that the NSA program has serious legal vulnerabilities, at least. Indeed, Kerr himself previously predicted that the administration would lose on its Article II justification for violationg FISA by an 8-1 vote in the U.S. Supreme Court and said that he "do[esn't] see the Article II claim as a close one based on existing law" (a position which is now strongly bolstered by the Supreme Court's ruling in Hamdam). Meanwhile, most experts agree -- including those few who were previously sympathetic -- that Hamdam also forecloses the administration's only other legal defense to its FISA violations (AUMF). As for Judge Taylor's rejection of the administration's "state secrets" argument, she adopted the reasoning of Judge Vaughn Walker -- a Bush 41 appointee -- who rejected this argument on the same ground in the ATT/EFF case only a month ago.

And even with regard to the Fourth Amendment claim, it is worth reminding ourselves that in 2002, the Bush Justice Department refused to support the lowering of the eavesdropping standard in FISA from "probable cause" to "reasonable suspicion" (as Sen. DeWine proposed) due in part to concerns that such eavesdropping would violate the Fourth Amendment. The eavesdropping in question there has far greater constitutional footing than the eavesdropping declared unconstitutional by Judge Taylor, since (a) it was to apply only to non-citizens (the Bush NSA program applies to U.S. citizens) and (b) it would still be subject to judicial review under the "reasonable suspicion" standard (the Bush NSA eavesdropping has no judicial review). If the Bush administration itself was concerned that DeWine's proposed eavesdropping would violate the Fourth Amendment, it goes without saying that there is a very substantial ground for concluding, as Judge Taylor did, that the far broader Bush NSA program does as well.

The attack on Judge Taylor's opinion was swift and aggressive -- but quite misguided in many instances, and just factually wrong in others. Her core rulings, particularly her conclusion that the Bush administration is violating the law without excuse, have strong support among the bulk of legal authorities (including "expert" commentators), and while it is certainly possible that there will be some ultimate reversal on a procedural issue (most likely the "standing" problem), it has become quite clear that with regard to the substantive issues, it is not Judge Taylor, but her critics, who have lacked "scholarly depth" in their analysis.


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