[Infowarrior] - Experts Fault Reasoning in Surveillance Decision

[Richard Forno]

From: Monty 

http://www.nytimes.com/2006/08/19/washington/19ruling.html

Experts Fault Reasoning in Surveillance Decision

By ADAM LIPTAK
The New York Times
August 19, 2006

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.

Some scholars speculated that Judge Taylor, of the Federal District Court in
Detroit, may have rushed her decision lest the case be consolidated with
several others now pending in federal court in San Francisco or moved to a
specialized court in Washington as contemplated by pending legislation.
Judge Taylor heard the last set of arguments in the case a little more than
a month ago.

The decision has been appealed, and legal scholars said Judge Taylor had
done the American Civil Liberties Union, which represents the plaintiffs,
few favors beyond handing it a victory. On the other hand, they added, the
appeals court is bound to examine the legal arguments in the case afresh in
any event.

Indeed, Cass R. Sunstein, a law professor at the University of Chicago,
predicted that the plaintiffs would win the case on appeal, but not for the
reasons Judge Taylor gave.

"The chances that the Bush program will be upheld are not none, but slim,"
Professor Sunstein said. "The chances that this judge's analysis will be
adopted are also slim."

Eugene Volokh, a law professor at the University of California, Los Angeles,
who presides over the Volokh Conspiracy Web log and says he is skeptical of
the legality of the wiretapping program, called the decision "not just
ill-reasoned, but rhetorically ill-conceived."

"If I were the A.C.L.U.," Professor Volokh said, "I would rather have a
decision that came across as more-in-sorrow-than-in-anger and that was as
deliberate, meticulous, thoughtful and studiously impartial as possible."

Anthony Romero, the executive director of the A.C.L.U., said Judge Taylor's
decision represented vindication of established limits on the scope of
executive authority.

"Ultimately," Mr. Romero said, "any doubts about the decision will be taken
up on appeal by sitting federal judges rather than pundits or commentators."

Judge Taylor, a longtime trial court judge who was appointed by President
Jimmy Carter, enjoys a good reputation among lawyers who have appeared
before her, according to anonymous comments collected by the Almanac of the
Federal Judiciary.

"Lawyers interviewed rated Taylor high in legal ability," the almanac
concluded. The eight quoted comments ranged from enthusiastic ("She is smart
as hell") to lukewarm ("She is competent").

Supporters of the program, disclosed by The New York Times in December,
suggested that Judge Taylor's opinion was as good a way to lose as any.

"It's hard to exaggerate how bad it is," said John R. Schmidt, a Justice
Department official in the Clinton administration who says the program is
legal. He pointed to Judge Taylor's failure to cite what he called several
pertinent decisions, including one from the Foreign Intelligence
Surveillance Court of Review in 2002 that said it took for granted that
Congress "could not encroach on the president's constitutional power" to
conduct warrantless surveillance to obtain foreign intelligence.

The decision also failed to cite a Supreme Court decision in June helpful to
the plaintiffs, a group of journalists, scholars, lawyers and nonprofit
organizations. The decision, Hamdan v. Rumsfeld, struck down the
administration's plans to try prisoners at Guantánamo Bay, Cuba, as war
criminals. It was widely interpreted as a rebuke to the administration's
expansive conception of executive power.

"After Hamdan," Professor Sunstein said, "this program is not easy to
defend."

Professor Balkin said there was a rushed quality to Judge Taylor's decision,
but he added that her reason for moving fast may have been the laudable one
of assuring that more than one appeals court would have the opportunity to
pass on the legality of the program.

Martin S. Lederman, a former Justice Department official who believes the
program is illegal, said he found the contrast between Justice John Paul
Stevens's approach in Hamdan and Judge Taylor's in the wiretapping case
telling.

"Justice Stevens was criticized for not including sound bites and sweeping
constitutional interpretation," Mr. Lederman said. Judge Taylor's decision,
by contrast, he said, "was meant for headlines."

Copyright 2006 The New York Times Company