Washington Post Editorial on the NSA Eavesdropping Decision:

The Post has hardly been a solid defender of the NSA eavesdropping program, but it nonetheless criticizes the decision:

[T]he decision ... is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.

Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. [For details, see the editorial itself. -EV] ...

The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality....

On the other hand, the New York Times editorial page applauded the opinion as "a careful, thoroughly grounded opinion". What that tells us is left as an exercise for the reader.
8.18.2006 1:28pm
Just an Observer:
I posted the following comment to Marty Lederman's post at Balkinization, with respect to criticism of Judge Taylor's opinion in general and the Post editorial in particular:

First, I join in abhorring the ad hominems directed at Judge Taylor.

Second, I also join in lamenting the thinness of her analyis on the merits. And I, too, think that the strongest case against the NSA program rests on the statutory arguments.

But having digested much of the coverage and reaction to this decision, I think there is one recurring rap against the judge that is undeserved: Many observers, including the Post editorial writers, complain that she did not wrestle with the administration's constitutional claims to inherent power that trump FISA.

I remind everyone of the very significant distinction between the "arguments" made by DOJ and Bush surrogates in political venues, and what Bush's advocates might have said in an actual court of law.

As I understand what has happened in the Detroit case -- based mainly on paraphrased news coverage -- DOJ basically did not show up to play over these arguments in Taylor's court. The administration stubbornly refused to address the merits, insisting that the judge could not even consider these issues because of "state secrets" privilege. Whatever defense of the merits was made in oral argument, it apparently was less than a full-throated and straightforward presentation of the theories propounded by the Bush camp in political circles.

Perhaps the President's lawyers now will be compelled to make their case where it matters.
8.18.2006 1:49pm
cfw (mail):
I still like the opinion, and that it came from a woman in Michigan who has been a lawyer about as long as I have been alive.

If the government lawyers chose not to discuss the issues carefully and as scholars, they asked for the sort of opinion they got.

A federal judge disrespected by the government can and should paint with a broad brush until the government chooses to litigate with the care and scholarship the matter requires.
8.18.2006 3:01pm
Gabriel Malor (mail):
cfw, an unserious or unhelpful party is not an excuse for a judge to abandon legal reasoning. If anything, such a situation should be the perfect opportunity for the other party to shine, rather the judge.
8.18.2006 3:18pm
Hamilton Lovecraft (mail):
But the administration does, in fact, vigorously dispute these conclusions.

So does OJ Simpson.
8.18.2006 3:20pm
lsu (mail):
Is O.J. Simpson in jail?
8.18.2006 3:44pm
Kevin L. Connors (mail) (www):

Is O.J. Simpson in jail?

Less trifling, does he represent a party at risk of losing its control over the federal government in November?
8.19.2006 12:48am