Blue Crab Boulevard

Bad Law

I stayed away from commenting about the decision handed down by U.S. District Judge Anna Diggs Taylor on the NSA program yesterday. Since I am not a lawyer, I wanted to read what a few people who know the law had to say. I've read quite a lot about the decision and there seems to be a very strong consensus emerging.

Let's just say it is not at all complimentary of Judge Taylor's reasoning.

When even the Washington Post editors condemn the decision, there is a big problem with it.

The usual suspects on the left of the blogosphere are hyperventilating to the max at the moment. I suspect the more intellectually honest ones among them are doing so because they know they only have a short time to celebrate. There is pretty close to a zero probability that Taylor's decision will stand on appeal.

Legal | Gaius August 18, 2006

By David (SNAFU Principle), August 18, 2006 @ 7:19 am

There is pretty close to a zero probability that Taylor’s decision will stand on appeal.

Admitting as you have that you know much about the law, (have you even read the case?) you base this statement on… what?

Your scalp starts to itch?
By Gaius, August 18, 2006 @ 7:29 am

Volokh (and others writing there) for starters. Althouse for another. Patterico as well.
By Scott W. Somerville, August 18, 2006 @ 8:12 am

I’m a Harvard Law graduate, a constitutional lawyer by trade, and the Fourth Amendment is our bread and butter here at the Home School Legal Defense Association. I’ve skimmed the opinion, and I’m stunned by her “standing” analysis, which seems preposterous to me.

To file a federal case, you have to have some actual controversy, not just a political disagreement. “Standing” refers to the requirement that the plaintiff has a real dog in the fight.

The ACLU gathered up plaintiffs who say they routinely call overseas as part of their work, and the harm they say they suffer is that their phone conversations are “chilled” by the possibility that the NSA may monitor calls to certain phone numbers. Later on, in a different part of her opinion, the judge argues that the NSA could always go out and get warrants if they’re really needed.

So here’s my problem with the analysis: to get into court, I’ve got to be actually harmed by the program. That means I would have to be “chilled” by WARRANTLESS monitoring in a way that I wouldn’t be “chilled” by wiretaps with a warrant. If the judge was saying, “Real warrants are going to be few and far between, so any plaintiff can safely assume that his conversations WON’T be listened to,” then I’d agree that a wide net of warrantless wiretaps has a “chilling” effect.

I’m off to write up a more thorough analysis at my own site. Grumble, grumbe, grumble! Aargh!
By Roland Hesz, August 18, 2006 @ 8:36 am

Well, warrantless traping is a good thing.
Ask anyone east of Austria how did they like it.
The Soviets for one really admired these things, especially the ones being tapped.

And yes, there was a real danger, the danger of the “evil capitalists” trying to subvert the “heroic efforts of the Soviet people” threatening their freedom and their peace plus their lives.

Be careful with warrantless, uncontrolled actions on behalf of the government.

Or, I propose you to go ahead, and install government monitored cameras in your homes.

Apart from this, I accept that her analysis and reasoning can be flawed.
By The Truth, August 18, 2006 @ 10:03 am

Scott,

The problem here is that, because of the secret nature of the program, it is difficult to tell who specifically was harmed by it.

If you’re going to argue that a person has to prove they were potentially harmed directly in order to file a suit against a secret program, then you’ve set a standard where it is extremely difficult to challenge any secret program.

Also, I don’t think it’s just the chilling effect that harms people–it’s the actual listening in on conversations that the government has no business listening to.

Sure, some tiny percentage of the conversations are ones that the government should be listening to, but they could be listening to those conversations without this program (remember, the FISA law specifically allows wiretapping for 72 hours before a warrant is issued).

What if the FBI decided to monitor the calls of all Republican lawmakers. After all, SOME Republican office holders are known to have broken the law. Does that make it permissable to listen to all of their conversations, in order to prevent further lawbreaking?
By Blackhawk, August 18, 2006 @ 1:08 pm

OK, here’s an opinion from a real lawyer:

â€” 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.

http://article.nationalreview.com/?q=OWVlOGNiZmIyMmZkYTg2OGFiYzM3ZGU4Nzc0MjFjNzQ=

(Sorry, I don’t know how to do they hyper-link thingy). It’s rather long (H/T Uncle Jimbo at Blackfive.net)
By Black Jack, August 18, 2006 @ 7:49 pm

The judge’s decision is a monument to wrongheaded thinking. It fails every legal test for conformity with existing law and can’t be justified except as the enshrinement of personal political bias and an infringement on the rights of a free people to defend themselves.

It also serves to prove we should never allow lifetime appointments to any official position in any branch of representative government.