Saturday, August 19, 2006

Debating the Merits of Judge Taylor's Decision on Illegal Wiretapping

Prof. Eugene Volokh: "[I]t's possible that the court got the result right -- in my view, not on the First and Fourth Arguments, but on the FISA point. Nonetheless, if the court's FISA analysis is mistaken, then the other arguments (the separation of powers and the inherent power arguments) don't provide any independent basis for its decision."

Publius: "I hate to say it because I’m sympathetic to the result, but from a legally technical standpoint, this opinion is premature, unsupported, and in violation of elementary civil procedure."

Scott Lemieux: "Even if we assume that a summary judgment was defensible with respect to the violation of FISA--and given Hamdan, the administration's argument is unserious--I just can't agree that the First and Fourth Amendment arguments are so unambiguous as to make a decision before during pleadings appropriate."

Bryan Cunningham of National Review: "Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain."

Prof. Volokh (again): "It seems to me that the proposition that Congressional judgments about the proper scope of surveillance (even surveillance aimed at catching foreign terrorists) prevail over Presidential judgments is hardly a 'hard-left' view. If the Foreign Intelligence Surveillance Act prohibits the NSA program (my reading is that it does), the Authorization for the Use of Military Force doesn't implicitly authorize what FISA forbids (and it's at least quite plausible to say that it doesn't implicitly authorize it), and the Congress has the constitutional power to constrain the President this way (and again it's at least quite plausible to say that it has such a power), then the NSA program is illegal."

Glenn Greenwald: "[B]etween Anna Diggs Taylor's opinion-writing abilities and the fact that we have a President who is systematically violating the law becuase he thinks he can, it is not a difficult challenge to see which is the most important problem."

Lambert at Corrente: "[D]on’t pop the champagne just yet; no triumphalism is warranted . . . . The bad news: The key component of Bush’s twentyfirst century power grab—the NSA’s datamining program that reads all your mail, all your searches, and this blog—is left in place by Judge Taylor’s decision. Worse, the court’s reasoning encourages the Bush administration to ratchet up its campaign to suppress the last of remnant of a free press and ratf*** or blackmail anyone who opposes them."

Prof. Jack Balkin: "Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal. . . . Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal. Judge Taylor's opinion did both of these things in her opinion."

Greenwald (again): "The army of legal 'scholars' who have spent the last couple of days patronizingly dismissing the Judge's decision have pretty substantial argumentative holes and misunderstandings of their own. . . . It is hardly surprising -- and nobody has any ground to complain -- that the court did not address non-existent arguments or arguments which were made in only the most cursory manner."

Jeff Nye: "Now for the next question: How will we know whether the illegal spying has stopped?"


I forgot the President: "I would say that those who herald this decision simply do not understand the nature of the world in which we live. I strongly disagree with that decision, strongly disagree."

Which deserves a word from Sen. Russ Feingold: "The President must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA’s warrantless wiretapping program."


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