No Hereditary Kings

From my perspective, the NYTimes Editorial, Ruling for the Law, pretty much says all there that needs to be said about district court decision declaring the Bush Administration's eavesdropping program is illegal:

Ever since President Bush was forced to admit that he was spying on Americans’ telephone calls and e-mail without warrants, his lawyers have fought to keep challenges to the program out of the courts. Yesterday, that plan failed. A federal judge in Detroit declared the eavesdropping program to be illegal and unconstitutional. She also offered a scathing condemnation of what lies behind the wiretapping — Mr. Bush’s attempt to expand his powers to the point that he can place himself beyond the reach of Congress, judges or the Constitution.

“There are no hereditary kings in America and no powers not created by the Constitution,” wrote Judge Anna Diggs Taylor of the United States District Court in Detroit.

* * * *

The ruling eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.

* * * *

[O]ne judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them.

There are certainly some excellent discussions of the opinion by legal scholars that analyize (much better than I ever can) the opinion in depth. For example, you may want to read:

Glenn Grennwald of Unclaimed Territory's posts, Federal court finds warrantless eavesdropping unconstitutional, enjoins the program and Ongoing misconceptions about Judge Taylor's opinion.

Jack Balkin's discussions of the decision here and here.

The consensus seems to be that decision is correct, but that the legal analysis could have been stronger in a few areas. While it is important in a case such as this to have a strong legal basis, in the end the Supreme Court is going to rule on the case, and will do so on its own terms, so it probably doesn't matter. See, e.g., Jerylyn Merritt of TalkLeft, who has an interesting discussion of the political fallout from the decision at Swiftboating the Fourth Amendment in the Name of the War On Terrorism.

Unfortunately, it is not only the quality of the legal opinion that is being critiqued. It is now SOP to trash the Judge as well. Greenwald tallies the list of grievances against Judge Taylor:

So, so far we have - (1) the Judge was appointed by Jimmy Carter; (2) the Judge is African-American and works on "civil rights" matters; (3) she is insane; (4) she does not take terrorism seriously; (5) this is a victory for the terrorists; (6) President Bush should defy the Order.

As Marty Lederman writes at Balkinization, Ah Well That Explains it, referring to a NYTimes article on the case:

[There is also] the now-obligatory reference to the President who appointed the judge. But does the New York Times really think that it's relevant . . . that Judge Taylor supported Jimmy Carter and worked in the civil rights movement, or that she is black? Has it included similar disclaimers whenever, say, Judges Silberman (of In re Sealed Case fame) or Luttig have issued opinions supporting the Bush Administration? Imagine: "Recall, however, that Judge Silberman, who is a white man, has long been hostile to all things liberal, and, in particular, when FISA was being considered 28 years ago, he was the leading opponent, offering constitutional arguments against it that were not to be heard again until he gratuitously slipped them into dicta in an opinion he wrote as a federal judge almost three decades later." Whenever the first President Bush did anything considered conservative, did the New York Times remind its readers that he was white and that he had opposed the 1964 Civil Rights Act?

One might think that Judge Taylor's judgment was wrong, or, like me, you might think the judgment was correct but the opinion is inadequate. But is there any reason at all to think that Judge Taylor does not sincerely think the NSA program is unlawful, or that she does not believe what she's written -- let alone that her opinion was a function of the fact that (horrors!) she's black, supported Carter, participated in the civil rights movement, and has ruled against a state religious display? (Perhaps Liptak and Lichtblau intended only to suggest how outrageous the rhetoric has been of those "Republicans" who claim the decision was "partisan." I hope so. But if so, that flavor sure got lost in the editing.)

Legal issues (and personal attacks) aside, Dan Froomkin of the Washington Post's White House Briefing, distills the essence of the matter:

But the idea that there is something fundamentally un-American about some of the basic underpinnings of Bush's war on terror is certainly gaining ground.

And to put it all in perspective, don't miss this animated cartoon by Walt Handelsman: N.S.A. Wiretapping.

Tags: Bush, Civil Liberties, Law, NSA Wiretapping