I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment.

  Here's the part that comes closest to being an analysis section:

  [The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.
  In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.
  All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.
  The President of the United States is himself created by that same Constitution.

  I confess that this has me scratching my head. Let's take it bit by bit:

[The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.

  It's true that the Fourth Amendment requires reasonable searches. But Fourth Amendment reasonableness is satisfied by a warrant or an exception to the warrant requirement, and there are several possible exceptions to the warrant requirement that may apply. Whether and how they may or may not apply depends on the facts of the surveillance, which are currently unknown.

  Also, identifying a reasonable expectation of privacy in communications is really quite complicated given new communications technologies; for example, courts have held that there is no REP in transactional information and cordless phone calls, and individuals with no voluntary contact with the U.S. presumably have no Fourth Amendment rights at all. We'd need to know the details of the surveillance to know this, but we don't know those details.

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile.

  What does this have to do with whether the program violates the Fourth Amendment?

The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution.

  It's hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that's the issue before the court, and my sense is that we really don't know enough to answer it without knowing the facts. And while it's true that the office of the Presidency was created by the Constitution, and the Fourth Amendment is a part of that Constitution, it's not clear how this relates to the Fourth Amendment issue. (Oh, and on an exceedingly minor point, I think that's four years, not five.)

  I can come up with explanations for why a district court judge inclined to rule against the program would put out an opinion that isn't quite ready for prime time. For example, Senator Specter's bill would take these issues away from the district court, so the choice might be to speak now or never. But at least based on the court's Fourth Amendment analysis, I suspect this opinion is important more for its political impact and its triggering of appellate review than for any analysis in the opinion itself.

  In any event, on to the Sixth Circuit (which, at least this story suggests, may have issued a stay of the injunction already).