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Lower Court Opinions Are Briefs to Higher Courts:

If you're a judge, your first responsibility is of course to reach the conclusion that you think is legally right, and to explain it using those arguments that you think are most sound. But once you have that figured out, presumably you'd want to maximize your chances of being affirmed — since by hypothesis your approach is the correct one, and you'd like to see it kept rather than being overruled. And that must be doubly so when you not only think the result you reached is right, but are passionate about it.

You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it's likely that the decision will be appealed. In some cases, you might conclude that the higher court judges just won't care what you write, because they'll make up their minds based on their own considerations. Yet even in ideologically polarizing cases, there are usually at least some judges who may be swayed by persuasive argument, especially from a fellow federal judge.

By that standard, the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Jeff Rosen once faulted Justice Blackmun for a judicial approach that was so emotional that it undermined his ability to implement the very ideas that he passionately believed; his "tendency to let his heart get the better of his head," Rosen argued, would "deprive[] him of lasting influence." (Others have argued that Justice Scalia's pugnacity might have a similar effect.) It seems to me that by writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.

Brett Bellmore:

since by hypothesis your approach is the correct one


Not necessarilly. It could merely be the approach you felt compelled to take due to stare decisis, and you actually think it's the wrong one. In which case you might want a higher court, not so bound, to overturn your decision on appeal.

Judges are familiar with judo, aren't they?
8.17.2006 8:24pm
piscivorous (mail):
I think you ment ordained not "orained by the very Constitution"
8.17.2006 8:50pm
Medis:
The phrase: "the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law" strikes me as somewhat overstated. Sure, a different opinion might (or might not) provide greater help to the plaintiffs on appeal. But my impression is that appellate court generally don't hold it against the litigants when the lower court writes a suspect opinion. So, I doubt her opinion actually made it less likely that the plaintiffs will succeed on appeal.
8.17.2006 9:04pm
Molechaser:
I wonder if the "ill-reasoned [and] rhetorically ill-conceived" nature of this opinion was a function of the court's attempt to rush the decision in order to be the first court to rule on the NSA program on its merits. Could it be that Judge Taylor fell victim to a desire to make the evening news, and in doing so was less careful than she ought to have been?
8.17.2006 9:30pm
Marcus1 (mail) (www):
If it were me, I think I'd actually probably try to wax eloquent like she did, not present something under-stated and deferential to a reviewing court.

1. Who knows what will happen on appeal? Your influence will be slim to nill anyway. Might as well make your political point in a way that will get media attention, and that will grant some new authority to these platitudes, while you have the chance.

2. This is all political anyway. She and those after her are pretty likely, I think, to decide this based on grand policy considerations, not tricky legal arguments. Might as well present the rhetorical argument, to see how it goes over. If it goes over well, maybe others will want to jump on aboard the good-guys train too.

3. At least in the final decision, you're going to have to use rhetorical flare to get through to the Bush administration. You're going to have to embarass them into compliance, not persuade them.

4. Unless there's some emotion involved, people are probably going to just let the President do what he wants. Somebody's going to have to get passionate at some point if they're going to gather the nerve to stand up to Bush.
8.17.2006 9:32pm
joe (mail) (www):
> 2. This is all political anyway. She and those after her are pretty likely, I think, to decide this based on grand policy considerations, not tricky legal arguments.

Spoken like the Unfrozen Caveman Lawyer, and about as persuasive.
8.17.2006 9:41pm
John Armstrong (mail):
molechaser's "rush to judgement" theory is interesting, but what if it's even darker than that? What if Prof. Volokh's first premise is wrong: that judges want to write decisions they find legally correct?

What if Judge Taylor actually wants the president's theories of his powers upheld? Why not write an flimsy opinion to make an appeal easier and bump the correction up to a higher court, whose opinion will have a compelling influence on more courts than her own?
8.17.2006 9:42pm
Lincoln (www):
It's disturbing that by all appearances the judge had made up her mind before the case had even been brought before her. So much for impartiality. That it might be overruled by a more conservative court doesn't make it any better. God forbid any of them should actually rule according to the law.
8.17.2006 9:45pm
Justin (mail):
Let's not forget that we don't have the weight of the evidence that was in front of the judge - since much of it is in classified portions of the record.

It is possible, though not certain, that this is as slam dunk a 4th Amendment violation as one gets, if the facts are particularly harmful to the government (wiretapping without any standard of cause purely domestic conversations, for instance).

If this was revealed in camera and in a classified setting, Taylor's opinion reads less like a perusasive piece and more like the type of chastising Posner gives when the government tries to get away with a whopper in front of him (generally involving immigration law).
8.17.2006 9:54pm
Kevin L. Connors (mail) (www):
I wondered where you were going with this in the first two paragraphs, Eugene, as it seemed so... so obvious. But then you tied Judge Anna Diggs Taylor's decision into it, it all made sense.

But one has to wonder, in light of that obviousness, why Judge Taylor didn't endeavor to be more clever in stating her opinion?
8.17.2006 10:00pm
Jacob (mail):
Judge Taylor wrote an opinion that seems to be shaky, angry, and even unreasonable. I don't see why it's partisan-sounding, though, Prof. Volokh. I can imagine her having partisan motivations, but nothing in the opinion reeks of Democratic talking points or anything. Does your theory that it sounds partisan have something to do with her reference to this president? That statement certainly seems gratuitous, pugnacious, and arguably unprofessional. I can't see why it's partisan, though, unless you're reading into it some reference to the circumstances surrounding this President's taking office.
8.17.2006 10:17pm
Martin H.:
Not only was the opinion ill-reasoned, it was simply horribly written. Obviously the Judge had to be aware that this is an opinion that would be instantaneously widely-read, by both legal and non-legal audiences. Is that not an occassion to, at the very least, carefully proofread and bluebook?
In particular, Part II (state secrets) is frighteningly akin to a 1L's first research memo in Legal Research and Writing - several pages discussing several cases in isolation, with page-long block quotes, and extremely limited and disjointed application to the instant case. I read the opinion over twice, and I'm still not exactly sure what the basis for the holding is.
8.17.2006 10:22pm
arthur (mail):
In a high profile case with excellent lawyers on both sides, a District Court opinion is not very important as a brief, and has much more value as news. It is also a very rare oportunity for a District Court to speak to a wide audience of non-lawyers as well as lawyers. Judge Diggs knows what the real audience is, and drafted accordingly. Writing with feeling was the right approach.
8.17.2006 10:39pm
dbm (mail):
I would agree with Arthur, with an added point. To a certain extent Judge Diggs seems to be saying "keep your eye on the ball." Constitutional analysis quickly gets caught up in arcane theories and counter-theories, and Judge Digg's relatively short, even simplistic, opinion could be a very intentional effort to keep the argument focused on what she sees as a few fundamental issues. There will be plenty of time for full complexity of the legal theories to be aired at the appellate level, so she might as well keep it shorter.
I would also argue that this opinion isn't so much partisan as it is protective of the judiciary (and the legislature). Party politics too often trump the tension that is supposed to exist between the various branches of government, and the tone of this opinion could be viewed more as protective of that tension rather than partisanship. If she is scornful, it is scorn toward an Executive overreaching, not a Republican overreaching. I think we would all be better served if members of the various branches, and I would single out Senators, were more protective of their branch of government than their political party.
8.17.2006 11:00pm
Jackson (mail):
While I agree with the result in this case, I agree it isn't the best written opinion to come along. But the court's reference to Kings is hardly a platitude. The obsession with Yoo and his ilk with what is breathlessly described as the "inherent" powers of the Executive is the direct descendant of various royal perogatives. Moreover, this Judge's reasoning, while not elegant, is a darn bit better than much of the reasoning produced by the Justice Department in defense of this and other questionable administration initiatives.
8.17.2006 11:04pm
Marcus1 (mail) (www):
Joe,

I don't say everything is political, but isn't this issue? Are you telling me, to the contrary, that the Constitution is totally clear here (4th Amendment/separation of powers)?

To the rest, I think y'all are awfully elitist. Maybe she's not a rhetorical/political genius; I won't say she is. But is it that bad? If the Supremes didn't have their extraordinary support staffs, I don't think their every opinion would be so brilliant either. Consider the amount of crap/info/pressure she had to deal with here, before even assembling an opinion.

In any case, disregarding quality, my point was simply Arthur's: I think she had more potential writing to the public than she did writing to the reviewing courts. I guess ideally she could have done both, but that would have been an extraordinary feat.
8.17.2006 11:05pm
Tom Holsinger (mail):
I agree with Professor Volokh. The only value this decision has is as an argument for federal judicial term limits.

As a Soviet tank officer said of the originally designed engines for the T-64 tank, "... so bad they were DISGUSTING."
8.17.2006 11:41pm
Molechaser:
Marcus,

We are probably being overly elitist. Granted, Judge Taylor doesn't have the same support staff the Supreme Court Justices have--as a Senior District Judge, she presumably has a single law clerk and maybe a judicial assistant. But the quality of the writing and reasoning isn't just bad by the standards of the federal bench (an admittedly high bar to clear), but also bad by the standards of the segment of the bar that normally deals with federal constitutional issues. That's still a high bar, which I think is your point, but it's a bar that we should generally expect federal judges and their clerks to clear. I for one would be embarrassed to have had anything to do with this opinion, no matter how much I might agree with the outcome.

My point was just that the poor quality of this opinion might be the result of a rush to get it out the door, possibly to draw some publicity, rather than of a lack of intellectual or rhetorical ability on the part of Judge Taylor or her staff.
8.17.2006 11:47pm
Christopher Cooke (mail):
My guess is that the quality of the lawyers' briefs on appeal, and the political leanings of the panel, will be much more important than how well the judge wrote her opinion. In a less politically charged case, the district judge's opinion would matter more, and the judge, in crafting findings, can do much to protect her decision from reversal. But with a constitutional issue of such importance, I doubt what she said will matter much to the Court of Appeal.
8.18.2006 12:11am
JunkYardLawDog (mail):

Judge Diggs knows what the real audience is, and drafted accordingly. Writing with feeling was the right approach.


Absolutely. It was written so the moonbats at places like Kos and the democratic underground could have a couple of sentences they didn't understand to bandy about.

Says the "Dog"
8.18.2006 12:14am
CharleyCarp (mail):
Everything here will be reviewed de novo, and the Sixth Circuit isn't going to care in the least what Judge Taylor's decision says, one way or the other. I think one should set her wish to communicate with the appeals court at near zero. I don't think this is just because the case is politically charged -- although that will be a factor -- I think pretty much any issue of first impression de novo case is going to get bigtime review.

Communicating with the parties, though, is different. She's trying to tell the losing party here that it's arguments are, in her view, completely wrong. Has she done so? I'd say yes. Will the Sixth Circuit do so as well? I think yes again, though probably with different rhetorical emphasis.
8.18.2006 12:24am
elChato (mail):
There's something so partisan about this opinion-- "Predictably, the War on Terror of this administration has produced a vast number of cases, in which the state secrets privilege has been invoked." Note the pointed reference to this administration (with an oddly placed comma-- bad writing is a hallmark of this opinion). Or, "The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP" (footnote omitted). Or "It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters enumerated in the Bill of Rights," followed by the profound insight that "The three separate branches of government were developed as a check and balance for one another."

I agree with Martin H. that it looks like a 1L project. One law clerk is no excuse- what are the odds the other judges would've turned her down if she had requested the loan of an additional clerk or a staff attorney for one of the most important cases ever filed in their courthouse? Would a local law school have refused to help her find some sharp and ambitious interns to work with her?

Sloppy writing is everywhere: look at the citation to another case followed by the oh-so-helpful "which is akin to our inquiry in the instant case"-- how does junk like that stay in an opinion? Or, "Defendants argue that Plaintiffs do not establish their standing." Or "The Youngstown court made short shrift of that argument . . . ." Or the especially pompous, and poorly written bit near the end- "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."

It's all so circular and self-congratulatory. Maybe she thought that enough ostentatious rhetoric would get the NPR commentators cooing over her commitment to the ultra-capitalized "American Democracy" and "Checks and Balances," and proclaim her work a stunning rebuke to the Bush administration. Maybe she was in a rush because she hoped to get some kind of ABA award? Whatever she thought, I think most lawyers will find this pretty thin material. I doubt it will be much help to the court of appeal either.
8.18.2006 12:46am
Tom Holsinger (mail):
elChato,

1) It says who wins;
2) It got her name in the papers.
8.18.2006 1:09am
Californio (mail):
Hmmm. To think I self-excluded myself from federal bench consideration. "Passionate" judicial opinions are anethma. Consider use of that term in a professional context - it imparts an image that is, well, unprofessional - "emotional". example: The policeman, whom I thought over-reacted a bit when he shoved my face into the pavement over my jaywalking violation, had a tremendous "passion" for police work.

Oh, and those "it is all political" comments? Ha Ha. Two words for you: Solomon Amendment - result? 9-0.
8.18.2006 3:46am
Richard Riley (mail):
I agree that, rhetorically, the district court opinion is way over the top. Another thing that struck me is the mustiness of the underlying philosophy. Lots of references to Judge J. Skelly Wright and other liberal lions of the past, various crumbling Warren Court monuments, and so on - it's all very 70's. Orin, Jack Balkin and others have pointed out specific places where the judge ignored recent cases in the areas she's analyzing - I'm talking more about the overall flavor of the opinion. I expect that's how the ACLU argued the case, since their strongest precedents would be cases from that era and their dwindling progeny. It's just interesting to me how old that's all starting to sound.
8.18.2006 9:33am
Bruce Hayden (mail) (www):
I really doubt that the 6th Circuit is going to do a full review of the case on its merits. The problem I see is that it is built on a stack of cards, and they have two choices, look at and approve all the cards, or just pull one out, and the house falls. The most likely, IMHO, is Standing. Standing is based here on communications between the plaintiffs and our designated enemies here having dried up when those enemies became aware of the NSA program. All that I think would be necessary here would be for the appeals court to just say, no, there is no reasonable expectation of being able to openly converse with our enemies during war time. And, voila, they are done. No standing, no case.
8.18.2006 10:47am
Marcus1 (mail) (www):
I wonder how this debate compares to the one on whether George Bush is too much of an idiot to be our president.

"Need some wood?"
8.18.2006 11:22am
The Drill SGT (mail):
The defendants and Judge seem to be on both sides of one issue here.

1. TSP warrantless taps are chilling on speech between the press and terrorists because their expectation of privacy is gone. Implication being that FISA warrants are a pain to get, take a while, so absent warrantless taps, these conversations happen without difficulty. Trust on both sides as it were. Press and Terrorists. Neither will rat the other out. (says something interesting about the allegiance of the press though)

2. Elsewhere, there is the presumption that FISA warrants occur instantly without pain and therefore the executive is over the line using this unconstitutional method, when the solution to protect the country is simply to follow the FISA Law.

I don't see how you can have it both ways.
8.18.2006 11:26am
percuriam:
As a former district court/appellate court law clerk, I agree with Eugene's observation re effect of the lower court decisions and chances of affirmance.

Once, a good friend--who is a career appellate law clerk--said to me that "the less you say below, the less chance of f*&king it up and getting reversed." I think he was only half kidding.

Here is a theory: perhaps the judge wrote it that way to make a point, and ruled against the government on the standing issue so as to gurantee that there would be an appeal, and further judicial review.
8.18.2006 11:45am
bradg:
"To the rest, I think y'all are awfully elitist. Maybe she's not a rhetorical/political genius; I won't say she is. But is it that bad?"

Yes that's bad. There is nothing wrong with wanting our federal judges to be rhetorical geniuses. They are supposed to be at the pinnacle of their profession, not a random lawyer of indifferent skill. Warranted elitism is no vice.
8.18.2006 12:55pm
Medis:
Bruce,

You use the term "enemies" quite a bit. I'm not sure even the government's own descriptions of the program provide justification for your blanket use of that term, and of course the government has studiously avoided submitting evidence to support its allegations.
8.18.2006 1:02pm
Adam J:
To Drill SGT- Who said anything about conversations between the press and terrorists? All the plaintiffs were having legitimate conversations- the government did not contest this. The issue is whether the government can unilaterally decide to tap the phone without showing probable cause to a judge.

I do think you are right that you can't have instant painless authorization to wiretap and complete protection of freedom of speech. However, the democratic solution is obviously a compromise, not the granting of unilateral sovereign power to the executive. FISA represents a compromise between protecting individual privacy and national security. Why should the executive change this? Bush never explain why(that I know of) except for spouting the usual "War on Terror" rhetoric. FISA is obviously a burden on preventing wiretapping where probable cause can't be established. But do wiretaps lacking probable cause protect national security? My gut answer is no, although I doubt there's an easy answer. Nor has the Executive explained how FISA would prevent NSA from wiretapping conversations where probably cause is established. The answer there seems to be they can't (even though it doesn't "occur instantly without pain"). So it seems to me that we're compromising our speech and privacy rights and getting precious little security in return.

Frankly, I'm happy the judge got to the meat of the case without letting it stall in the procedural morass that those "thoughtful, detailed, studiously calm and impartial-seeming opinions" tend to get caught up in.
8.18.2006 3:47pm
Jeremy (mail):
I couldn't agree more that the opinion was horrible to read. It took a while for me to get through it, but granted I did. I actually give her props on the Fourth Amendment section, she explained that well. I also liked how she used Entrick v. Carrington to describe the intent of the Fourth Amendment.

But, I think this all boils down to is standing. I really do. I think Scalia and the LCs of the court will buy into the 4th Amendment claim, I don't know about Justice Thomas or CJ Roberts and Justice Alito, but I do think that almost all of them will buy the Fourth Amendment claim. The First Amendment claim, I think is a big stretch, but...we will see. State secrets, I highly doubt that will hold.

So I think it comes down to standing, and that was horribly written by Judge Taylor, and I don't know what to think about it yet. I'll look into the precedent she citied.
8.18.2006 4:46pm
Anonymous777:
I don't agree with the premise that highers courts are the only proper audience for the district court opinion. The opinion is also a political document that is meant to energize the press and public into political activism, and in that so far it has succeeded quite well.

Another example: many have criticized Scalia for the rhetorical harshness of his opinions. But his very bluntness served as a clarion call to conservatives, who responded with activism that has put two more strong conservatives on the Court.
8.18.2006 5:20pm
Anonymous777:
Jackson, that's a great point. It's amazing how many purportedly knowledgeable and highly credentialed legal scholars missed the obvious legal importance of the reference to the King. Like I said elsewhere, mere knowledge of federal cases equals legal ignorance in a case like this. It requires knowledge of a much longer span of constitutional history, including that of Rome and Great Britain, and of the pre-Constitution American Revolution and Articles of Confederation, all of which provide ample precedent -- and even more importantly anti-precedent, courses of history that it would be a great idea not to repeat.
8.18.2006 5:35pm
faeroe:
I have a couple of questions raised by the discussion here: 1. Given that we are in a state of declared war, how can Congress limit the Commander-in-Chief's ability to decide what is a military threat and to take appropriate action to limit that threat? It seems to me that if we gave effect to this ruling, terrorist types could easily begin to protect their communications by routing them through the US. 2. Is the AUMF something less than a declaration of war and, if so, what is it?
8.18.2006 6:55pm
Jeremy (mail):
I'm sorry. The President has no authority to violate the Amendments of the constitution in or out of war, that is very ridiculous to claim the president isn't bounded by our constitution in war time.

The President only has 15 days to conduct warantless wiretaps after war is declared and umm we are a little past 15 days now....

The AUMF is a declaration of war. Article I Section 8 gives power to Congress to declare war, but it leaves the way congress can declare war up to them. It does not say that Congress must issue a declaration of war. But, I really do hope you are joking when you say that since we are in war the Commander-in-Chief can decide anything can be a military threat.

There is a reason only congress can supsend the writ of habeus corpus and that is only in rebellion or in war. It sounds like Lincoln's legacy is trying to re-emerge in faeroe's cry that Bush has the ability to break the constitution.

And Anonymous 777 I completely agree. I dont know what type of judge, Judge Taylor is, but I did love how she mentioned the Federalist Papers and mentioned the Entrick case which gave the historical background behind the Fourth Amendment.
8.18.2006 7:23pm
RM (mail):
The no "hereditary" kings quip, incidentally, is either redundant, or more evidence of potentially disruptive (to the judge's goals) rancor. After all, either she meant nothing by adding heriditary to kings, who are usually hereditary anyway, or she was trying to take what she thought was a subtle jab at Bush's background. Which is silly. Certainly, reading the part of the opinion on point doesn't help, and it's especially strange given that the judge quotes James Madison saying that powers are limited whether "hereditary, self appointed, or elected". Anyway, as someone who just finished clerking, this whole opinion is a stinker.

Also, did we really have to call a surveillance plan "project minaret"?
8.18.2006 8:03pm
Trochilus:
The decision, notwithstanding its weak reasoning and rhetorical excesses, is now serving as a form of leverage for political posturing in this Congressional election year.

In New Jersey, for example, Democrat Congressman Rob Andrews quickly issued a written statement citing the decision, and demanded that the President immediately cease using the NSA program, and to gather intelligence only through constitutional procedures, i.e., FISA. Andrew's Press Release is posted on Politicsnj.com, a political website in New Jersey. As you can see, Andrews posted the release allowing for Comments. In that regard, may have gotten much more than he bargained for!

Was politics the intended consequence? Of course. But it would certainly be irresponsible to charge the judge with deliberately jumping into the political thicket, or of even being a willing participant without evidence. Perhaps the other participants, knowing her inclinations, simply played her that way.

However, the nearly perfect political timing of the decision -- mid-August, during traditional judicial vacation time -- should at least raise some eyebrows. That would apply to both her pressing forward to issue the decision now, and the knowledge that immediate review would be far less likely. Coupled with the fact that it was brought by a litany of interest groups who have persistently support liberal Democrats who pretty obviously went forum shopping to get this result, and you either have a remarkable coincidence of events, or the outlines of an intriguing drama.

Suffice it to say that the dearth of reasoning, her notable failure to at least confront contrary precedent, the breadth of remedial order, the unmistakable and unnecessary partisan shots, the curious timing of the decision, and the past behavior of the judge in the Michigan affirmative action cases, all are at least suggestive of the playing out of a partisan political agenda. Stay tuned -- this isn't over yet.

If the unbiased members of the press in this country want an interesting back story to sink their teeth into, they will dig hard into this one.
8.19.2006 12:59pm
John M. Perkins (mail):
74 years old, Carter appointment, solid lawyer's evaluations in the Almanac of the Federal Judiciary, with emphasis on professionalism, decorum and her good clerk.

While I agree with Eugene's take, I partisanly imagine that NSA lawyers may have been unprofessionally haughty enough to enflame Taylor into the emotional decision.

One of her previous big decisions was in favor of ACLU to remove a creche.
8.21.2006 2:52pm
faeroe:
Jeremy replies:

I'm sorry. The President has no authority to violate the Amendments of the constitution in or out of war, that is very ridiculous to claim the president isn't bounded by our constitution in war time.


The Fourth Amendment deems unreasonable searches and seizures to be impermissible. My question relates to the reasonability of intercepting communications made by an enemy in wartime. It seems to me to be eminently reasonable to do so, which eliminates an essential element of the alleged violation of the Fourth Amendment.


The President only has 15 days to conduct warantless wiretaps after war is declared and umm we are a little past 15 days now....


This seems to me a red herring. Put another way, FISA is a statute and cannot reduce the President's inherent authority to conduct warrantless wiretaps in matters of national security. The Supreme Court strongly suggests this view in its dicta in Katz

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

and U.S. v. U.S. District Court
[This case] involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.

...

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.

Also, the FISA Court of Review seems to say the same in Sealed Case 02-001:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

It seems very clear from these excerpts (and there are numerous other appellate courts in agreement) that the FISA is not controlling and that the President can meet the reasonability element in matters of national security. If that is indeed the case, no warrant would be necessary.

The AUMF is a declaration of war. Article I Section 8 gives power to Congress to declare war, but it leaves the way congress can declare war up to them. It does not say that Congress must issue a declaration of war. But, I really do hope you are joking when you say that since we are in war the Commander-in-Chief can decide anything can be a military threat.


This is a strawman argument. I did not say that the President can determine anything is a military threat. I do now say that communications with the enemy are potential military threats. I hope you are not arguing that such communications are not. Again, I think that the reasonability of such a determination would control for Fourth Amendment matters.
8.22.2006 6:25pm