As many of you know, yesterday, Judge Anna Diggs Taylor, Chief Judge of the United States District Court in the Eastern District of Michigan, struck down the NSA's international wiretapping program, which listens in on phone conversations of persons connected with Al Queda. The news was the top headline on internet news sites yesterday and this morning's newspapers. Some of those articles will miss this important context: 1) Judge Taylor's opinion will assuredly be reversed, and 2) anyone with any familiarity with judicial opinion writing will recognize it as sloppy.
I'll offer just one quote from the opinion, because this one is a doozy:
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
(Slip op. at 33.) This sentence may be the stupidest sentence ever written by a federal judge in a ruling. The President cannot violate the Fourth Amendment by failing to procure judicial orders (i.e., warrants) because the FISA statute says he must; he can only violate the Fourth Amendment if the Fourth Amendment says he must procure such warrants. (Elsewhere, Judge Taylor writes without citation that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause," which is patently false; the Fourth Amendment merely requires that if you are going to get a warrant, you must have probable cause, but in any event, the search must be reasonable. Additionally, as Paul Mirengoff at Power Line notes, Taylor appears to argue--her analysis is often lacking--that the President violated FISA because he violated the Fourth Amendment, circular reasoning if there ever was such a thing.) Moreover, a violation of the Fourth Amendment does not also constitute a violation of the First Amendment.
Crank at RedState.com offers the best breakdown of the opinion that I have seen. Bryan Cunningham at National Review Online also does an excellent job.
Paul Mirengoff at Power Line writes: "Off hand, I cannot recall reading an opinion as conclusory and content free as the key portions of this opinion." Scott Johnson adds: "Anyone who knows what legal analysis and legal argument look like -- anyone who knows the requisites of legal reasoning -- must look on the handiwork of Judge Anna Diggs Taylor in the NSA case in amazement. It is a pathetic piece of work. If it had been submitted by a student in my second year legal writing class at the University of St. Thomas Law School, it would have earned a failing grade."
Even the Washington Post editorial board recognizes how poorly contructed the opinion is: "Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, 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." (Hat tip: Power Line.)
Andrew McCarthy at National Review Online ridicules Judge Taylor's "separation of powers" analysis.