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Bloggers Critique Wiretap Ruling

Poor President Bush. Just when he thought it was safe to monitor the phone calls and e-mails of ordinary citizens, a federal judge has to spoil his fun. Senior U.S. District Judge Anna Diggs Taylor, ruling in a case brought against the Bush administration by the American Civil Liberties Union and others, issued a 44-page opinion finding that the National Security Agency's wiretap program violates the First and Fourth Amendments to the Constitution, the separation of powers doctrine, statutory law and the Administrative Procedures Act.

Reaction from bloggers was swift and sweeping. Many thought that Judge Taylor reached the right legal outcome, but used weak or even wrong reasoning to get there. Among the comments:

  • Jack Balkin:  "Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. ... It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle."
  • Glenn Greenwald: "This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took."
  • Eugene Volokh: "[T]he real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the [Authorization for Use of Military Force], then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here."
  • Corrente:  "[D]on’t pop the champagne just yet; no triumphalism is warranted (especially since this decision has to run the gauntlet of a Federal judiciary system now headed by Scalito and Roberts)."
  • Politech:  "Now for the next question: How will we know whether the illegal spying has stopped?"
  • Overlawyered:  "While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate."
  • Marty Lederman: "Judge Taylor did not contend sufficiently with the strongest government arguments on the 'special needs' doctrine. Her decision would have been much stronger had she thoroughly explained why the program violates FISA, and why the government's Article II argument is wrong."

Posted by Robert J. Ambrogi on August 18, 2006 at 02:47 PM | Permalink | Comments (3)


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