Monday, August 21, 2006
Appropriate Smackdown
Andrew McCarthy over at NRO has a harsh but fair analysis of the opinion of federal district Judge Anna Diggs Taylor regarding the NSA terrorist interception program. Like him, I believe she got it wrong from finding standing on.
Money quote:
After all, who knew that lurking in the penumbras, unnoticed lo these two centuries, has been a First Amendment right to communicate privately overseas, in wartime, with enemy operatives plotting to murder Americans?
To arrive at this novel (ahem) discovery, Judge Taylor simply needed to blow past the long-settled law of standing-to-sue, as well as about 150 years of precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.
For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.
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.
(Emphasis added). Read it all.
Money quote:
After all, who knew that lurking in the penumbras, unnoticed lo these two centuries, has been a First Amendment right to communicate privately overseas, in wartime, with enemy operatives plotting to murder Americans?
To arrive at this novel (ahem) discovery, Judge Taylor simply needed to blow past the long-settled law of standing-to-sue, as well as about 150 years of precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.
For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.
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.
(Emphasis added). Read it all.
# posted by Roger Fraley @ 8:08 AM 
