Bad Judgment, Bad Law

Judge Rules Against Wiretaps
NSA Program Called Unconstitutional

By Dan Eggen and Dafna Linzer
Washington Post Staff Writers
Friday, August 18, 2006; Page A01

A federal judge in Detroit ruled yesterday that the National Security Agency's warrantless surveillance program is unconstitutional, delivering the first decision that the Bush administration's effort to monitor communications without court oversight runs afoul of the Bill of Rights and federal law.

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.

Ruling in a lawsuit brought by the American Civil Liberties Union and other advocacy groups in the Eastern District of Michigan, Taylor said that the NSA wiretapping program, aimed at communications by potential terrorists, violates privacy and free speech rights and the constitutional separation of powers among the three branches of government. She also found that the wiretaps violate the Foreign Intelligence Surveillance Act, the 1978 law instituted to provide judicial oversight of clandestine surveillance within the United States.

"It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," Taylor wrote in her 43-page opinion. ". . . There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."

A breathtakingly bad decision by a judge who demonstrates very little understanding of the Constitution, the Bill of Rights, or of her own cited case law. Suffice it to say that this judge's decision wouldn't withstand the most cursory examination by a first year Political Science major. Her statement in reference to the Fourth Amendment to the Constitution that:

"in its few words requires reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon pior-existing probable cause,as well as particularity as to persons, places, and things..."

Say what? The Fourth Amendment in no way could be interpreted as saying that by anyone familiar in the least with the Constitution and case law surrounding the Fourth. Her own citations of SCOTUS rulings as well as those of lower courts contain contradictions to her reasoning. She obviously failed to read those rulings in their entirety.

Prior to those errant statements as to the Constitutionality of the NSA program, her arguments against the petition for dismissal by the governement are again inconsistent with her own case law citations. There is no prima facie case that the plaintiffs conversations had been monitored by the NSA. Her argument that because the plaintiffs phone calls fell into the category of phone calls admittedly being monitored by the NSA was prima facie evidence that they had been monitored doesn't hold water. The logical progression fails to meet evidentiary standards particularly when the judges knowledge of the NSA program is only that which was available to the public through the public media. The secrecy exception requires a more detailed knowledge of the methodology and technology used. Judge Diggs own recited case law supports the governments case for dismissal.

Full Story: Judge Diggs' Pitiful Ruling

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