Judge Taylor's Tapped-Out Argument

Federal domestic spying program nicked, not nixed

When President George Bush confidently told reporters Friday that a district court judge's ruling against his administration's secret wiretap program would be overturned, he wasn't just spinning. There is a good chance he is right.

As much as it might pain those looking for something, anything, to use against the Bush administration's ever-increasing definition of executive power, U.S. District Judge Anna Diggs Taylor's opinion probably ain't it. There is a reason the Justice Department rushed to appeal this decision.

"There are no hereditary Kings in America and no powers not created by the Constitution," Taylor wrote in her decision, a much-needed attempt at some executive-bashing rhetoric. It sounds to these ears like a conscious callback to the debates on the Constitution itself, when the fear of an untamed despot was palpable. But as part of a legal opinion? Not so much.

It isn't just the decision's language that falls short. As Eugene Volokh and his merry band of bloggers have teased out, the underpinnings of the relatively terse 43-page decision are weak or confused. It turns out that the National Security Agency's program violates the First Amendment only because it violates the Fourth Amendment. In essence, Judge Taylor agrees with the Justice Department that citizens have no constitutional right to private conversations, that the government can always listen in provided it has a good enough reason.

So then the primary question is down to the "reasonableness" of the NSA program. And what does Judge Taylor say? Why, she says the program "obviously" violates the Fourth Amendment and moves on. An appeals court is going to be all over that move like Ft. Meade on a cell call to Islamabad.

And on the key question of executive power the opinion is largely silent. As Yale Law Professor Jack Balkin immediately noted, the opinion does not even challenge the administration's fairly amazing suggestion that the Foreign Intelligence Surveillance Act is unconstitutional precisely because it puts restraints on Oval Office power. Taylor says this question is "irrelevant" because the NSA's program violates the constitution.

Balkin goes on to say he is "mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that rehearses the best arguments pro and con" on this point.

Officials at both Justice and the NSA were queasy about side-stepping FISA warrants the way the White House insisted the program had to do. Judge Taylor drops this vital indicator of a new expansion of executive power, and there is little reason to expect an appeals court to pick it up for her. With that, the last, best hope to roll back Bush's expansive "unitary executive" may be lost.

Moreover, the entire scope of the decision and the case is unsatisfactory to some. Surveillance expert James Atkinson claims that the entire federal government needs to be prohibited from such domestic sweeps, not just the NSA.

"All that AT&T needs to do is start routing the intercepted data to an agency different from the NSA to be compliant with the judge's order. AT&T could just as easily route the illegally intercepted data streams to a DOD facility, or DCI facility," Atkinson wrote in response to Judge Taylor's ruling.

To fully reel in the snooping programs you would need to include all the local phone companies, all long distance providers, the unde rsea cable companies, and all contractors who work at military bases handling the intercepts, Atkinson avers. And to do that you need a completely new and different challenge to the President Bush's surveillance programs. None is forthcoming.

No wonder then that our extra-legal Unitary Executive was so buoyant and confident at Camp David last week.