Why the Wiretapping Ruling Is Vulnerable

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Why the Wiretapping Ruling Is Vulnerable

Even opponents of President Bush's surveillance program have to be dismayed by Judge Taylor's thin legal reasoning

By REYNOLDS HOLDING

Posted Friday, Aug. 18, 2006

If you're troubled by the Bush Administration's warrantless eavesdropping program, you can't be thrilled with Thursday's opinion by U.S. District Judge Anna Diggs Taylor.

Sure, Judge Taylor struck down the program, dealing a third judicial blow to the President's claim of expansive war powers. The opinion comes two months after the Supreme Court rejected the Administration's version of "due process lite" for detainees at Guantanamo Bay, and a month after a San Francisco judge allowed a lawsuit against AT&T for allegedly collaborating in the eavesdropping program.

But Taylor's opinion is remarkably thin on legal reasoning, leaving it vulnerable to getting reversed by the generally conservative Sixth Circuit Court of Appeals. Worse, the opinion's provocative, almost dismissive, language gives weight to criticism that this decision was more about politics than the law.

Take this phrase, for example: "There are no hereditary kings in America and no powers not created by the Constitution." Or this one: The President's orders "violate the Separation of Powers ordained by the very Constitution of which this President is a creature." Good stuff, but not the kind of measured legal arguments that can persuade an appellate judge to agree with Taylor's decision.

Here's a rundown of some weaknesses in her opinion.

The judge ruled that the surveillance program violates the Constitution's Fourth Amendment because it allows officials to "search" people's phone calls unreasonably and without a warrant. But she didn't say how the searches are unreasonable. If they tap into an old-fashioned call between a couple in Peoria who rightly assume their conversation is private, that's one thing. It's quite another if the couple uses a cordless phone (because they shouldn't expect privacy) or if one person receives the call overseas (because he may not be covered by the Fourth Amendment). And some searches don't require warrants, as when a customs agent takes a look in your bags when you cross the border. Does the eavesdropping program fall into an exception to the warrant requirement? Does it cover the couple in Peoria? We don't know, and Taylor didn't tell us. She just said that it "obviously" violates the Fourth Amendment, and that's not much of a reason.

The judge also ruled that the program violates the First Amendment because it makes people afraid to speak freely or associate with organizations that sound suspicious. That may be true. More likely, though, the disclosure of the program rather than the program itself is what makes people afraid. And there are lots of circumstances in which legal eavesdropping, the kind that complies with the Fourth Amendment, makes people afraid to speak or associate but doesn't violate the First Amendment. We don't know whether the surveillance program falls into one of those circumstances, because we don't know why, or really whether, it violates the Fourth Amendment.

The big issue facing the judge was whether Bush, despite everything else, has the power in a time of war to protect national security through eavesdropping. Bush said he does for two reasons: because Congress gave him that power in authorizing him "to use all necessary and appropriate force," and because he has it anyhow as the commander-in-chief. Taylor said he was wrong on both counts. But she said so near the end of the 44-page opinion, and by that point may have been too exasperated with the Administration to tell us exactly why.

She ruled that Congress didn't say anything about eavesdropping in authorizing force, and being the top commander doesn't allow the President to eavesdrop for the same reason it doesn't allow him to deny a fair hearing to an imprisoned American citizen. Or something like that. The judge missed a perfect opportunity to mention the Supreme Court's June decision in the Guantanamo Bay case, which cast serious doubt on the expansive view of war powers that the Administration argued for in this case. Oh, well.

It's hard to say why a federal judge wouldn't do her best work on a case of historical importance. Maybe she wanted to get the opinion out quickly, before Congress overrode her decision with a bill resolving the issue. Maybe she wanted to shape the debate, offering some zesty talking points to opponents of the eavesdropping program. As a legal matter, though, the opponents deserved better.

http://www.time.com/time/nation/article/0,...1228964,00.html

[Bottomfeeder 239]

If it's so important why didn't the President just go to Congress? They passed 2 Patriot Acts. My guess is they wanted to keep it secret.

http://www.youtube.com/watch?v=xXSHMSDrShE

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My guess is they wanted to keep it secret.

When did you come up with this great revelation?

[Bottomfeeder 239]

I always knew it, I just thought it was unconstitutional. That's why I'm against it. The Constitution will ALWAYS be the law of the land, I don't care whose in charge. We cannot undermine the constitution period. They always had the FISA courts, they just didn't use them, therefore they are guilty as charged.

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I always knew it, I just thought it was unconstitutional. That's why I'm against it. The Constitution will ALWAYS be the law of the land, I don't care whose in charge. We cannot undermine the constitution period. They always had the FISA courts, they just didn't use them, therefore they are guilty as charged.

If you don't want any secrets, why not send out leaflets to inform terrorists of times and locations of troop movements as well?

But Taylor's opinion is remarkably thin on legal reasoning,

And some searches don't require warrants, as when a customs agent takes a look in your bags when you cross the border.

No more inspections at the airport either. The next time you are flying and a group of 20 - 35 year old Muslims, all come to the gate at the last moment, pay cash for tickets, and all are sweating profusely and jabbering away about meeting Allah and just can't wait for the 44 virgins, don't worry. Because you will be assured their constitutional rights were not encroached upon.

The judge also ruled that the program violates the First Amendment because it makes people afraid to speak freely or associate with organizations that sound suspicious.

If you are not talking to al-Qaeda or Hezbollah there wouldn't be a problem

The big issue facing the judge was whether Bush, despite everything else, has the power in a time of war to protect national security through eavesdropping. Bush said he does for two reasons: because Congress gave him that power in authorizing him "to use all necessary and appropriate force," and because he has it anyhow as the commander-in-chief. Taylor said he was wrong on both counts.

My suspicion is she is a democrat and the suit was brought by democrats.

[Bottomfeeder 239]

Those all fair points. Do you believe it will be oveturned? Not that it really matters now, the cat's out fo the bag. I believe that's why all of those cell phone purchases. What are the chances of those disposable cell phone conversations being monitored?

[Ranger12 41]

If you are not talking to al-Qaeda or Hezbollah there wouldn't be a problem

That one comment is the only comeback that needs to be used against those that think their rights are being violated. I can care less if the government hears the conversation that I have with my brother or my friends. I'm not involved in any illegal activities, so what am I worried about. Who cares if some guy over at Ft. Meade is listening in. Its not like he knows me and we are ever going to meet so that he knows all my personal issues I may discuss over the phone. It is not like he is going to post them on the internet or a billboard.

The only people that are really worried about this are people involved in illegal activites. BF, if you are talking to a person or group that raises suspicions, then why are you talking to them? Even if you don't know that person or group is involved in suspicious activities, what is it to you if you are innocent?

Anyway, that whole point is meaningless since they are only targeting calls from known suspected terrorists and their contacts. It is not like they are setting there and monitoring every dang call made in the United States 24/7/365.