17 Aug Throwing the Kitchen Sink at Warrantless Wiretapping
As most of our readers already know, a U.S. federal judge has invalidated the U.S. government’s program for wiretapping phone calls without a warrant. I know this is a hard issue, but this is one of the least persuasive opinions I’ve ever seen on this question. The judge found that the program (called the “Terrorist Surveillance Program”) violated the U.S. Constitution’s First and Fourth Amendments, the Separation of Powers Doctrine, the Foreign Intelligence Surveillance Act and the Administrative Procedure Act. This is basically every law that the plaintiffs could think of and some that they probably thought were pretty weak (where is that First Amendment violation?). The plaintiffs threw the proverbial kitchen sink at the program and the judge accepted all of the arguments without any serious analysis and contented herself with chiding the President on trying to be king-like.
If this case gets to an appeal (it may be mooted by a statute currently being considered by Congress), I predict there is no way that this lower court opinion will survive in anywhere close to its current form. The program might indeed be illegal at the end of the day, but Judge Taylor’s rather sloppy opinion is not going to persuade many people.
Helpful analyses and links:
Jack Balkin at Balkinization: http://balkin.blogspot.com/
ACS blog: http://www.acsblog.org/
Concurring Opinions: http://www.concurringopinions.com/
SCOTUS blog
It seems consensus is emerging above that the First Amendment violation is weakest, and Balkin and Professor Ku appear to agree (!) that the decision is poorly argued. I suppose I now have to temper my initial enthusiasm….
The New York Times takes a different view of Judge Taylor’s opinion. “With a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them.”
If both Julian Ku and Jack Balkin find the opinion quite weak, one wonders what it is in the decision (other than the result) that the Editorial Board of the Times finds to be so careful and convincing.
Roger Alford
The New York Times is right in spirit when it says that the judge ‘has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them.’ After all, the Times itself has been up close and personal with this administration and the Pentagon Papers case was not that long ago (indeed, it’s interesting to look again at Rudenstine’s The Day the Presses Stopped [1996] by way of comparison, although the Nixon administration, in retrospect, seems to have at least lacked the unmitigated willfulness and arrogance that afflicts the current administration; i.e., it acted with a guilty conscience). Without in any way impugning the character or integrity of the judge, I doubt it was the Times’ attorneys who proffered the judgment that her decision was a ‘careful, thoroughly grounded opinion.’ Still, time will tell what parts were well-grounded…. And it’s at least comforting to know that the best legal arguments might yet be called upon to rein in a constitutionally contemptible cabal at the helm of state.
Today, Marty Lederman at Balkinization is, as usual, a must read.