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« Social Security Reform Thursday: Week Sixty-One -- Entitlement Spending Versus Defense Spending. | WILLisms.com | Quote Of The Day »

ACLU v. NSA Blowback

The reaction to this week's opinion by Judge Anna Diggs Taylor in the ACLU v. NSA case has been lopsidedly negative, except among those who care not a whit about legal reasoning and are happy to see the rule of law trashed in order to embarass President Bush.

Check out some of these criticisms:

"Yes, sure, it is true that the judicial opinion issued yesterday is very weak, in places borderline incoherent, in its reasoning with regard to some issues. Anyone can see that. Most everyone who commented on it, including me, pointed that out."

"Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful."

The opinion "isn't quite ready for prime time".

These are responses from Glenn Greenwald, the Washington Post editorial board, and Orin Kerr respectively, three who have criticised the legality of the program in the past. Nearly everyone who has read and understands the opinion, left, right and center, all agree that it is a mediocre and unreasoned opinion. Hell, even at least one Kos diarist thinks it was an awful opinion. (h/t Powerline).

Scott Johnson at Powerline delivers the coup de grace - "anyone who knows what legal analysis and legal argument look like -- anyone who knows the requisites of legal reasoning -- must look on the handiwork of Judge Anna Diggs Taylor in the NSA case in amazement. It is a pathetic piece of work. If it had been submitted by a student in my second year legal writing class at the University of St. Thomas Law School, it would have earned a failing grade."

Folks, lawyers criticizing a federal judge for this lack of intellectual power is nearly unprecedented. This type of language is reserved for the truly horrid opinions in American law, such as the Dred Scott decision or Korematsu now relegated to the jurisprudence Hall of Shame.

ACLU v. NSA now resides there as well.

Posted by Ken McCracken · 19 August 2006 10:21 AM


We can only hope that the appeals or supreme court will overturn the district judge so that ACLU v NSA will not really become as notorious a decision as Dred Scott, although it certainly is as poorly reasoned and written.

Posted by: Zsa Zsa at August 19, 2006 09:51 PM

Bryan Cunningham s a former Clinton-era federal prosecutor, now in private practice.

…(W)e cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse.

I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm.

…the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment…

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.

Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand… there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

Posted by: Bat One at August 19, 2006 10:52 PM

In reviewing Judge Taylor’s NSA decision for a post on the plaintiffs themselves, I re-read this:

For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom (sic) the United States government believes to be terrorist suspects or to be associated with terrorist organizations. In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom (sic) the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients. All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.

But wait a minute! Didn’t the New York Times in the person of editor Bill Kellor tell us that the terrorists already knew about the NSA surveillance program, and that there was thus no damage done to our national security by publishing details of the program, in spite of the vehement protests by the administration?

It would seem that the plaintiffs in this case, and Judge Taylor in her ruling, are directly contradicting the Times’ assertion of noble innocence in the matter.

Now, far be it from me to disparage the “honorable” Bill Kellor or his equally sinless reporters, Lichtblau and Rosen. But on the other hand, a federal judge is a federal judge… even so obvious a partisan hack as Carter appointee, Anna Diggs Taylor.

So which lefty is lying? Clearly they can’t all be telling the truth, can they? If Kellor is telling the truth, and the terrorists already knew of the NSA program, then surely there was no damage done to our national security. But then what are all these plaintiffs doing even claiming injury… never mind being speciously granted standing in court. Even by this judge.

But if the plaintiffs actually had a case, as the judge recklessly decided, then Kellor and the NYT were lying. Again.

Can’t have it both ways.

Posted by: Bat One at August 20, 2006 11:59 PM

Judge Taylor's opinion will certainly not be the last word on the NSA surveillance program, but this press release may well be the last word on Judge Taylor,

(Washington, DC) Judicial Watch, the public interest group that investigates and prosecutes government corruption and judicial abuse, announced today that Judge Anna Diggs Taylor, who last week ruled the government’s warrantless wiretapping program unconstitutional, serves as a Secretary and Trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case (ACLU et. al v. National Security Agency). Judicial Watch discovered the potential conflict of interest after reviewing Judge Diggs Taylor’s financial disclosure statements. According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a “recent grant” of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision. According to the CFSEM website, “The Foundation’s trustees make all funding decisions at meetings held on a quarterly basis.” “This potential conflict of interest merits serious investigation,” said Judicial Watch President Tom Fitton. “If Judge Diggs Taylor failed to disclose this link to a plaintiff in a case before her court, it would certainly call into question her judgment.” (Judge Diggs Taylor is also the presiding judge in another case where she may have a conflict of interest. The Arab Community Center for Social and Economic Services (ACCESS) is a defendant in another case now before Judge Diggs Taylor’s court [Case No. 06-10968 (Mich. E.D.)]. In 2003, the CFSEM donated $180,000 to ACCESS.)

Posted by: Bat One at August 22, 2006 11:27 PM