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Amateur Hour? A judge’s first-year failing-grade opinion.
National Review On Line ^ | 08-18-06 | By Bryan Cunningham

Posted on 08/18/2006 4:59:24 AM PDT by MNJohnnie

The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.

We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I’ll start with this: 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. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.

Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.

Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception” to FISA’s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.

More worrisome still are the judge’s breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an “F.” Here’s one of several examples: The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is “reasonable.” Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a “domestic” program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs, such as protecting us from attack, against other constitutional interests.

Lest there be any doubt as to whether Keith supported Judge Taylor’s view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge’s missive.

Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion.

Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.

Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention:

—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context (seizure of U.S. steel mills in the face of a union strike);

—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or

—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.

Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.

Trivial Pursuit. Perhaps most disturbing about the judge’s opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal “Schoolhouse Rock” episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP “regulates.” FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.

Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge’s oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.

Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2” British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

As Judge Taylor’s new favorite justice, Robert Jackson himself, warned, the courts should not “convert the constitutional Bill of Rights into a suicide pact.” I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor’s giant step in that direction to stand.

— Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.


TOPICS: Extended News; News/Current Events
KEYWORDS: annadiggstaylor; badjudge; carterstrikesagain; eviscerate
Another example of why the NSA decision is absurd nonsense. HERE for all the perpetual screamers is WHY anyone even marginally Conservative wants the GOP to stay in power. This judge was appointed by Carter. As these Carter/Ford/Nixon judges retire WHO do you want appointing their replacements? ONE thing and one thing only should be on Conservative minds this year. Judges, Judges, Judges.
1 posted on 08/18/2006 4:59:25 AM PDT by MNJohnnie
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To: All

Welcome to the real world of judges.

If you want to be frightened by the level of judicial incompetence, visit any state bar convention. (not the ABA, they are licence irrelevant) Those who are actual licensed lawyers sitting on the bench.

You will be SHOCKED at the level of senility (as in medical don't know where they are) of some of these judges.

Carter paid her off with this judicial appointment and now we have an annex to the 9th circus.


2 posted on 08/18/2006 5:12:36 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: MNJohnnie

This is a Jimmah Carter, affirmative action judge...what can the nation expect from such an appointee?


3 posted on 08/18/2006 5:14:50 AM PDT by kittymyrib
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To: MNJohnnie

Excellent evaluation.


4 posted on 08/18/2006 5:15:53 AM PDT by thiscouldbemoreconfusing
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To: MNJohnnie

Did he slice and dice her or what? Wow! "Judge" Diggs-Taylor really messed up on this one. Assuming the Court of Appeals is no less harsh than Bryan Cunningham, that will be the first step in getting her removed from the bench before she can do more harm.


5 posted on 08/18/2006 5:15:57 AM PDT by NonValueAdded (Tom Gallagher - the anti-Crist [FL Governor, 2006 primary])
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To: MNJohnnie

In 1976 I busted one of my soldiers with 2 POUNDS OF HEROIN. One of Jimmy Carter's newly-appointed federal magistrates gave the perp 3 months in federal lockup! I'll bet that magistrate is still on the bench.


6 posted on 08/18/2006 5:16:26 AM PDT by darth
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To: MNJohnnie
I will add one more thing to your list of what should be on our minds this year: Survival of our way of life in the face of terrorist attempts to bring down freedom loving peoples! This article is terrific in it's explanation of the many flaws in this politically motivated ruling.
7 posted on 08/18/2006 5:17:17 AM PDT by borisbob69 (Old shade is better than new shade!)
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To: MNJohnnie

Let's hope the COurt of Appeals makes short work of this and foregoes the professional courtesies and calls Taylor's ruling exactly what it is: a Crock.


8 posted on 08/18/2006 5:20:24 AM PDT by bjc (Check the data!!)
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To: MNJohnnie

I'm not a bushbot, and I even know that Bush is not a conservative, but this is a battle over judges, and the one thing he has done right, other than the execution of the WOT,is his appointment of judges ( he made one mistake, but the base, with the help of certain liberal democrats made her go away, and was replaced with a real judge ).


9 posted on 08/18/2006 5:25:15 AM PDT by joe fonebone (Israel, taking out the world's trash since 1948.)
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To: Andrewksu

ping


10 posted on 08/18/2006 5:28:57 AM PDT by centurion316 (Democrats - Supporting Al Qaida Worldwide)
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The funny (in a self delusional way) thing about the sort of stuff like this, is that the leftists actually think that if they do these things, the islamofascists will actually like them, rather than looking at them as disposable, useful idiots.

Does anyone else remember the calls of moonbats upset that New York was attacked, and they couldn't understand why the islamofascists would attack people who didn't vote for George Bush!

Savage is right. Liberalism IS a mental disorder!

Mark


11 posted on 08/18/2006 5:33:55 AM PDT by MarkL (When Kaylee says "No power in the `verse can stop me," it's cute. When River says it, it's scary!)
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To: MNJohnnie

... the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.
.
.
.
.
TREASON in the name of politics.


12 posted on 08/18/2006 5:45:14 AM PDT by IrishMike (Democrats .... Stuck on Stupid, RINO's ...the most vicious judas goats)
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To: MNJohnnie

Great Article!


13 posted on 08/18/2006 6:11:29 AM PDT by chaosagent (Remember, no matter how you slice it, forbidden fruit still tastes the sweetest!)
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To: longtermmemmory

I'm confident that a clerk, intern, page, etc. probably 'researched' (term used loosely) and also probably wrote a good portion of the judge's opinion.

I'm not excusing the judge - especially if she retains her post in a diminished mental capacity - but keep in mind there are plenty of helpers in her office and given the geography/demographics I'm just making a WAG that the judge's staff are no fans of the Bush admin or the GOP in general.


14 posted on 08/18/2006 6:27:29 AM PDT by relictele
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To: longtermmemmory

I almost feel that to be a judge you do not need to go to law school for years and spend hundreds of thousands of dollars.

All you need to do is take a study for the bar class, pass the exam, then know someone who can appoint you to the bench.

For those of you who disagree with this, the series 7 exam to be a stock broker is just as difficult. You study the book for 6 months, take a hundred practice exams, spend a week in class then go out and pass the exam.



15 posted on 08/18/2006 6:54:25 AM PDT by EQAndyBuzz ("If you liked what Liberal Leadership did for Israel, you'll LOVE what it can do for America!")
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To: MNJohnnie

This woman is dumb as a bag of hair. She's probably one of those "9/11 was an inside job" nutbags/


16 posted on 08/18/2006 6:55:08 AM PDT by AppyPappy (If you aren't part of the solution, there is good money to be made prolonging the problem.)
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To: MNJohnnie

Even my liberal local paper ran a wire service story/headline suggesting the ruling would likely be overturned.


17 posted on 08/18/2006 6:58:50 AM PDT by zook ("We all knew someone in primary school who had a really powerful magnet")
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To: zook

The Washington Post doesn't even like the decision.


18 posted on 08/18/2006 7:30:02 AM PDT by Paradox (The "smarter" the individual, the greater his power of self-deception.)
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To: MNJohnnie

Activist, Leftist, Carter Appointee, Diggs-Taylor
19 posted on 08/18/2006 7:31:57 AM PDT by Obadiah
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To: MNJohnnie
Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Well, that's the only plausible explanation only if you're afraid to question some of your own assumptions. The assumption that since the judge is a law professor and has been on the bench since 1979, therefore she is not an amateur, is ripe for examination. Could it be that this judge is another "Ward Churchill"? Graduated from high school and college without proper qualifications, admitted to law school without proper qualifications, hired by a law school or law firm without proper qualifications, and appointed to her judgeship without proper qualifications, all the while being lauded for her impeccable qualifications?

20 posted on 08/18/2006 7:58:39 AM PDT by The Electrician ("Government is the only enterprise in the world which expands in size when its failures increase.")
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To: The Electrician

That may be why she hijacked the Affirmative Action case.


21 posted on 08/18/2006 8:52:14 AM PDT by MNJohnnie (History shows us that if you are not willing to fight, you better be prepared to die)
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To: MNJohnnie

bttt


22 posted on 08/18/2006 9:06:36 AM PDT by PogySailor
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To: MNJohnnie

Great article. However, he doesn't even mention her nonsensical "standing" ruling, which should have cut off the whole case.


23 posted on 08/18/2006 10:32:43 AM PDT by half-cajun
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