WulfCry Weblog

As you may already know, Judge Anna Diggs Taylor, a senior judge of a Federal Court in Michigan, recently ruled Pres. Bush’s “Secret Wiretapping Program” unconstitutional. YOu can read her opinion here and I highly recommend it. I’d like to take a moment to point out some of the specific criticisms of her opinion, and address them:

How on earth does she give standing to these Academians and Lawyers?
The argument of standing based on a “chilling” of the correspondence with parties overseas that is necessary for the Plaintifs to carry on their business is valid. But a lot of people, perhaps rightly so, see it as a trivial argument for standing here. I think it is a good argument, and all of section III of the opinion covers the reasoning in great detail. Even if it were tenuous, however, it would be a justifiable legal fiction for the reason Judge Taylor so succinctly pointed out:

“as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.”

In other words, it is entirely possible that my phone has been tapped. But since I don’t know about it I can’t bring suit. The legal fiction employed by Taylor in conferring standard serves the purpose of protecting those who would have standing, but cannot assert it due to the utter lack of oversight of this program.

What about the conflict of interest she is acused of?
What about it. An organization for which she served on the board of trustees donated money to the ACLU over the prior two years. This does not mean she gave them money, or even that she voted to give them money. THe Community Foundation for Southeastern Michigan provides grants for a number of nonprofit organizations and activities, particularly those that help the community. If you live in Southeast Michigan and want to give back to the community, visit their website, I’m sure they can hel you out. It is entirely possible that Judge Taylor was hardly aware of the monies that organization had given to the ACLU. If her actions were innapropriate, there are consequences. Charges can be brought and sanctions given. I notice, though, that no one has bothered bringing charges. They are content to decry to the media and try to drag her name through the mud because she dared defy the president.

Judge Taylor has disarmed the NSA!! We are no longer safe!! How will we protect ourselves?!?
My gods, your right. Whatever shall we do. Now the government will have to get warrants for their searches or at least apply for them after the fact. They won’t be able to listen to anyone they want with absolutely no oversight. We’ll have to rely on police work and get more people on the ground level in in America to protect our citizens. My gods, we may even have to bring some of the national guard back to GUARD OUR NATION

Wow, I suddenly feel a lot safer.

a final note
I have tried to read the right’s criticisms of this decision. Not a single one have I found that specifically attacks the precedents, or statutory and constitutional interpretations Judge Taylor uses. They seem content to say that it is “poorly reasoned” without pointing out why. They offer no statutes or precedents to support their own interpretation; they simply assert that Judge Taylor’s must be wrong, apparently because they disagree with them on a gut level. If anyone finds a cogent article that expresses the weaknesses of the opinion and refutes it with legal reasoning, please let me know.

In the meantime, the ACLU and the Government have agreed to a temporary stay at least until the 6th Circuit has had a chance to review the case a bit. I’m excited to see how it turns out. I’ve been wondering for a long time how Mr. Bush has been rationalizing his unconstitutional siezures without warrant, and his sidestepping of the traditional checks and balances that are so important guarding our nation from corruption and power mad tyranny.

I also have to wonder why he is so reluctant to go to FISA for warrants, especially since he is allowed to do so AFTER the intellegence activities have already taken place. A warrant would not stand in the way of the NSA’s information gathering. It would simply allow for someone outside of Bush’s inner circle to know who is being listened to and why. An impartial panel of judges appointed in a bipartidan manner. What is he so afraid of? What doesn’t he want the courts to know?

For a cogent, though unpersuasive argument for the legality of the NSA’s program, read Sen. Arlen Specter’s letter in defense of the program here

A little government and a little luck are necessary in life, but only a fool trusts either of them.
– P. J. O’Rourke