Skip to comments.RUSH LIMBAUGH LIVE THREAD FRIDAY AUGUST 18, 2006
Posted on 08/18/2006 8:47:18 AM PDT by MNJohnnie
A couple of articles why the NSA ruling by the Carter Appointee is so much garbage.
By Mark Levin
Are there no limits to which activist judges wont go to advance their political and policy agendas? Answer: No. I wrote an entire book about it. And U.S. District Judge Anna Diggs Taylor, appointed in the twilight of the Carter administration, is the latest in a long list of disgraceful lawyers who abuse their power.
There are four things that strike me most about Taylors opinion. First, she grants standing to such plaintiffs as the ACLU, CAIR, Greenpeace, National Association of Criminal Defense Lawyers, Christopher Hitchens, and others, without a shred of information showing any connection between the plaintiffs assertions of constitutional violations and any harm to them. However, Taylor reveals herself in this excerpt from her ruling:
[T]he court need not speculate upon the kind of activity the Plaintiffs want to engage in they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging actual or threatened injury as a result of Defendants conduct
Taylor writes later:
Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the Presidents action in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny.
In other words, if Taylor had ruled properly and found that the Plaintiffs had no standing to bring their lawsuit, she would have denied herself the ability to strike down the NSA intercept program by throwing out the lawsuit.
Second, Taylor fails to address adequately that which has been debated here and elsewhere for months, i.e., the presidents inherent constitutional powers as commander-in-chief, and the long line of court cases (and historical evidence) related to it.
Third, in many places, the opinion reads like a political screed.
Fourth, Taylor insists on the immediate implementation of her decision, meaning that the NSA must stop intercepting enemy communications at this very moment, unless it succeeds in getting judicial relief elsewhere.
The ACLU et al have won the day, as they often do these days when they take their agenda to our courts. Forum shopping works. The judiciary does not.
The opinion is here. (H/T: Andy McCarthy)
UPDATE: This from the Justice Department: "The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal."
UPDATE II: Just to be clear, Taylor ruled that the president/NSA violated the FISA, Title III, the First and Fourth Amendments, and the Separation of Powers doctrine.
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. Ill start with this: I wouldnt 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 whats wrong with Judge Taylors 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 nations 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 FISAs 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 FISAs 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 FISAs 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 judges breathtaking mistakes in analyzing the Fourth and First Amendmentserrors that would earn our first-year law student an F. Heres 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 governments legitimate needs, such as protecting us from attack, against other constitutional interests.
Lest there be any doubt as to whether Keith supported Judge Taylors 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 Presidents 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 judges missive.
Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a courts attention legal authority contrary to ones position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylors 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 didnt 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. Heres 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 Jacksons 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 cases 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 presidents 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 judges 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 judges 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 Taylors 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 Taylors 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 Taylors 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.
You be .008
Thanks for the ping, I really needed the reminder today!
Morning Johnnie. TGIF.
In the meantime
"Obama heading for Africa 'because Africa is important' "
let's hope he bought only a 1-way
Following in slick willie's footsteps. Travel the world at American taxpayer expense. Wonder if Osama Obama is bringing 500 people along too.
I'm sure he's going over to Africa to cure all the poverty. /s
Sheesh, I remember that entourage. It was in the hundreds, wasn't it.
"Keep it in yo congressional office, Denny be keep'n it safe for ya there! "
Morning everyone! I was almost late--just finishing my yummy waffles at the Rush Limbaugh Thread Breakfast Buffet.
THANK GOD, FRIDAY HAS ARRIVED!
Very good article. One point: the judge in question is beyond normal retirement age and received her JD in 1957. So this is not quite her first opinion, just her first national stupid one. Remember, this is the same judge who tried to hijack the UMich Law School affirmative action case so she could rule in favor of racist standards.
Just so you know she isn't a late-comer to being an awful judge, but has both practice and intent.
Impeachable is the least we should consider her.