The NSA wiretapping decision

I'm still thinking about the district court opinion holding the NSA wiretapping program unconstitutional, but like others (Prof. Balkin; Prof. Volokh; and Prof. Chesney on the National Security Law list-serve), I'm not impressed by the quality of the opinion.  For example, the court concludes that the President has violated the First Amendment rights of the U.S. persons whose calls were monitored.  Why?  Well, having concluded that the program violates the Fourth Amendment, the court goes on to say:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Huh?  I think what the court is trying to suggest is that, because these are unreasonable searches (i.e., the Fourth Amendment violation), there cannot be a compelling government interest to justify the intrusion on the First Amendment interests.  But that's far from a clear proposition, if that's even what the court means, and it merits much more analysis and discussion, which is absent, since the opinion then goes on to a separation of powers section.

If a law student turned in an exam written like this opinion, I don't think I'd give it anything better than a C.  (But the New York Times apparently would give it an A: "But for now, with a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do."

Um, yeah.

The sad thing is that the court had an ample template for striking down the program as violating FISA: a group of academics -- not all "liberal" -- released a well-argued and well-researched letter opining that the wiretapping program violated FISA and was not supported by the President's inherent Commander-in-Chief powers.

Why was this opinion so poorly reasoned?  Orin Kerr suggests that maybe the court felt it had to issue the opinion before it was ready in case the Specter Bill became law and mooted the whole controversy.  It sounds like some Republican politicians have argued that it's because the judge was appointed by President Carter.  To the extent that such political motivations are being inferred by one opinion, as opposed to a broad swath of the judge's rulings, it strikes me as pretty unfair.  Since Judge Taylor was appointed in 1979, that means she's been on the bench for 27 years, probably having issued several thousand opinions (published or not).  Judging her based on one isn't reasonable.

On the other hand, I think Ann Althouse asks the right questions:

It's hard to understand why a judge writing an opinion in such a high-profile case, dealing with such difficult law, would not put immense effort into creating an outward appearance of heavy scholarly effort and pristine neutrality. Does the judge lack the competence to do it? Does the judge have a hot feeling of righteousness and outrage about the case and also think it's good to show it?

What we can judge is the end product, and in this case, the end product is not very good.

Comments

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