Decision ‘08

Not Even The New York Times Can Pretend The NSA Decision Was A Good One

And that’s saying something, for sure! (I’m speaking of the news division, particularly Adam Liptak - God knows Gail Collins is A-OK with anything anti-Bush):

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

The main problems, scholars sympathetic to the decision’s bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.

She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.

That ruling is “rather innovative” and “not a particularly good argument,” Jack Balkin, a law professor at Yale who believes the program is illegal, wrote on his Web log.

Judge Taylor also ruled that the program violated the Fourth Amendment’s ban on unreasonable searches and seizures. But scholars said she failed to take account of the so-called “special needs” exception to the amendment’s requirement that the government obtain a warrant before engaging in some surveillance unrelated to routine law enforcement. “It’s just a few pages of general ruminations about the Fourth Amendment, much of it incomplete and some of it simply incorrect,” Orin S. Kerr, a law professor at George Washington University who believes the administration’s legal justifications for the program are weak, said of Judge Taylor’s Fourth Amendment analysis on a Web log called the Volokh Conspiracy.

Judge Taylor gave less attention to the more modest statutory argument that has been widely advanced by critics of the program. They say that it violates a 1978 law requiring warrants from a secret court and that neither a 2001 Congressional authorization to use military force against Al Qaeda nor the president’s constitutional authority allowed the administration to ignore the law. A recent Supreme Court decision strengthened that argument. Judge Taylor did not cite it.

“…the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.” Other than that, it was just fabulous!…

3 Responses to “Not Even The New York Times Can Pretend The NSA Decision Was A Good One”

1 JB Says:
August 19th, 2006 at 11:28 am
So, just how did Karl Rove pull this one off? As a young Jedi who knew he would eventually turn to the dark side, young Karl apparently convinced President Jiminy Carter, through mind manipulation, to appoint an incompetent but passionate, legislatively-minded nut-job lefty to the bench, knowing full well that her politically driven, baseless decisions would be universally scorned and ultimately benefit his beloved Evil Empire. What foresight: The pure, beautiful, evil genius of it all!
2 Dmac Says:
August 19th, 2006 at 11:47 am
Mark, did you see this:

http://releases.usnewswire.com/GetRelease.asp?id=70948

The level of hypocricy here is truly amazing - sounds a lot like “stay the course” to these ears. Sheesh.
3 Mark Says:
August 19th, 2006 at 12:32 pm
Dmac, that’s just incoherent…no surprise, then, to see Teddy Kennedy’s name attached…