Intellectual Rigor

Has anyone taken the time to read the ruling issued by Judge Taylor re Case No. 06-CV-10204, ACLU v NSA? I have. You can download the ruling from the Council of Foreign Affairs here. I wanted to read it for myself after reading all the articles praising and condemning it.

Full disclosure. I am not an attorney nor did I sleep in a Holiday Inn Express last night. My bride and the mother of my sons is a practicing attorney but that does not nor should it imply that I know what I am talking about. Having said that, even a non attorney like me can see where the ruling comes up short (I did take classes on constitutional history/law as an undergrad and as a graduate student).

Judge Taylor’s ruling reminded me of an e-mail my colleague received the other day. The author couldn’t help but throw in little editorial comments here and there. I am sure the comments were meant to plus up the credibility of the author. Instead of relying on facts to support his thesis, he had to throw in puffery that only made him appear to be an idiot. What the author accomplished was to cement our collective opinion that the author is an oxygen thief.

Oxygen thief, ration converter, dead baby, and other base epithets describe the idiots among us. The military is a human organization so we expect to contend with useless people. Because forward deployed units deal with life and death, we strive to minimize their influence.

Judge Anna Diggs Taylor is an oxygen thief. Appointed by President Carter in 1979, she has been allowed to serve ever since. Amazing. If this ruling is of similar quality to her previous rulings and opinions, she should have been impeached long ago.

Smarter people than me have already written about the rulings shortcomings so I will not comment on the ruling itself. You can read this article (you might have to register) by Ann Althouse, a law professor at the University of Wisconsin instead. You can also read this editorial from the Wall Street Journal or Andrew McCarthy’s piece written for the National Review. I must share what I think are the best quotes.

From Dr. Althouse:

…the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

From the Wall Street Journal:

So let's set aside the judge's Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The "unreasonable search and seizure" and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King's political opponents under general and often secret warrants.

Judge Taylor sees an analogy here, but she manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found.

As for the First Amendment, Judge Taylor asserts that the plaintiffs--a group that includes the ACLU and assorted academics, lawyers and journalists who believe their conversations may have been tapped but almost surely weren't--had their free-speech rights violated because al Qaeda types are now afraid to speak to them on the phone.

From McCarthy:

In the real system of separated powers devised by the Framers, the courts of the United States had no role — none — in defending this nation from foreign threats. That was to be the job of the president and the Congress, which is to say, the officials actually accountable to the citizens whose lives were at stake.

While Judge Taylor bleats about the need to respect “checks and balances,” the check our system has designed for national-security matters is political, not judicial. It implicates the right of all citizens collectively — the body politic — to self preservation. It is not concerned with such comparative trifles as the insatiable idio-obsessions of “activists” and gadflies — however theatrically petrified they may seem over the possibility that, for example, their “right” to shoot the breeze with Ayman Zawahiri might be “chilled” if the NSA lends its ears … along with an audience that already includes every foreign intelligence service on the planet.

The standing rules that Judge Taylor shunned are there for a reason. It is not a legalism. It is not some abstruse jurisprudential technicality that you’d need an Ivy League law degree to decipher. It is about the right of the American people to govern themselves.

There is a difference between collecting evidence for use in a criminal prosecution and the collection of information for use as intelligence. To listen in on a man who uses his phone to set up contract “hits” so he can monopolize Jefferson City’s drug trade does require a warrant. I don’t think a warrant is required to listen in on conversations between Joe Taliban in Afghanistan and his cousin, Masoud living in Jefferson City, coordinating the purchase of cell phones for use in IED trigger mechanisms! Article 3, § 3 of the US Constitution defines treason. If Masoud is a US citizen and he was in fact colluding with his cousin Joe Taliban, Masoud is conducting a treasonous act, not perpetrating a crime.

Congress is charged under Article 1, § 8 of the US Constitution to provide for the common defense among other things. Congress dictates how intelligence is collected. Article 2, § 2 states that the President is the Commander in Chief of the military. Article 3 defines the role of Judiciary and does give the ACLU the right to sue the NSA (Article 3, § 2) but nowhere in Article 3 does it mention that it has jurisdiction over the nation’s conduct of war but as mentioned already, does define treason. McCarthy is right in that war is a political issue, that is why the US Constitution charges elected officials to prosecute war, not the judiciary!

Judge Taylor’s poorly written ruling will be overturned. Unfortunately, it will be overturned because of her baleful lack of intellectual rigor, not on the strength of the arguments put forth by the defendant, the National Security Agency. Because of that, the ACLU will still argue that “warrantless” eavesdropping on conversations between foreign nationals working to kill my family and residents of the United States who are cooperating with the aforementioned foreign nationals are still illegal.

This is a hell of a way to fight a war.

CPT NightHawk


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