Jury's out on judge's spy program ruling

Tech Culture

The federal judge who demanded immediate shutdown of the Bush Administration's warrantless monitoring of international phone calls and Internet chatter may have laced her ruling with , but one thing's for sure: she won't have the last word.


Not long after Judge Anna Diggs Taylor's landmark decision on Thursday, which made her the first to strike down the National Security Agency's terrorist surveillance program as unconstitutional, the feds appealed her decision to the Sixth Circuit Court of Appeals, defending the program as critical to national security. All parties involved agreed to shelve her opinion for now, and in about three weeks, government lawyers will make their case for why it should remain that way until the entire appeals process plays out. Many onlookers have said they wouldn't be surprised if the matter ascends all the way to the U.S. Supreme Court.

Taylor's 43-page opinion (click for PDF) has generated no shortage of commentary in the blogosphere. Predictably, some praised the judge for standing up to the president and the rule of law, while others blasted the decision as amounting to a victory for terrorists. But in an interesting twist, a handful of others who had openly doubted the legality of the NSA program all along--including the Washington Post's editorial board--voiced disappointment not in the outcome but in the Carter appointee's approach.

"...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') 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."
--The Volokh Conspiracy

"While I wholeheartedly agree with the general result, the court's opinion and reasoning are weak in a variety of ways, and given the magnitude of the opinion and the efforts that will be made to undermine it, I fear that Judge Diggs Taylor has, in the long run, undermined those of us who have believed the NSA program is illegal since its existence was revealed several months ago."
--Daily Kos

"It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle."

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