Missing the Mark

In her opinion declaring the NSA Program illegal and unconstitutional, Judge Anna Diggs Taylor wrote:

There are no hereditary kings in America and no powers
not created by the Constitution.

Well, there's an old saying: "If you're going to shoot the king, you'd better not miss."

Judge Taylor's opinion definitely takes aim at King George. Unfortunately, I think it misses the mark. The Washington Post quotes Bobby Chesney of Wake Forest University as saying:

Regardless of what your position is on the merits of the issue,
there's no question that it's a poorly reasoned decision. The
opinion kind of reads like an outline of possible grounds to
strike down the program, without analysis to fill it in.

I had exactly the same reaction when reading the opinion. The most important conclusions in the opinion (and the most controversial) are simply asserted, as if they are somehow self-evidently true. For instance, Judge Taylor, without any real analysis at all, states that the NSA program "obviously" violates the Fourth Amendment. She then relies on that assertion to avoid the question of whether FISA is constitution, and to some extent, the related question of whether the AUMF somehow supercedes FISA.

The AUMF Resolution, if indeed it is construed as replacing
FISA, gives no support to Defendants here. Even if that
Resolution superceded all other statutory law, Defendants
have violated the constitutional rights of their citizens.

If you're going to put so much weight on the conclusion that the program violates the Fourth Amendment, you have to first prove that it does. This is the one area where the government actually has a decent argument. There are a number of pre-FISA cases that held that the Fourth Amendment does not bar warrantless surveillance in the intelligence gathering context. And the Supreme Court specifically left that question open in the Keith case (precisely because it's such a hard question!). If you're going to come down the other way, you have to explain why. You have to address those cases and either distinguish or repudiate them.

But what makes this even more frustrating is that there is no need to reach this question, much less rely on it to support your other conclusions. The logical structure of the opinion is entirely ass backwards. Because FISA is currently the law of the land, there is simply no reason to reach the Fourth Amendment issue. The Fourth Amendment only comes into play if you first rule that the AUMF or article II authorizes the president to violate FISA. And this is where the DOJ has absolutely nothing to support its position.

Judge Taylor (and her clerks!) had to have known that this opinion would be subjected to instant and intense scrutiny, both within the legal system and in the court of public opinion. In light of that, I just don't understand why she chose to issues such a bare-bones opinion. Even if this decision is upheld by the Sixth Circuit, the appellate judges are likely to take issue with her reasoning. I would think that in a case that is certain to be appealed, a judge would want to err on the side of thoroughness.

Moreover, it's not as if Judge Taylor and her clerks had to come up with all this from scratch. The NSA program has generated thousands of pages of legal commentary and the Supreme Court just issued an opinion on exactly this topic. I agree fully with Jack Balkin, who observes:

I'm 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, or, for that
matter, the reasoning of the Supreme Court's Hamdan
decision, handed down this June, which is, in my estimation,
precisely on point.

Had Judge Taylor simply parroted those arguments, this opinion would be almost unassailable on appeal (at least on the merits; standing is another matter). But this opinion is both over-ambitious (plunging head-on into the Fourth Amendment issue) and under-supported. As a result, I fear it will only embolden the administration's defenders.

One thing is certain, whatever opinion Judge Taylor issued, it was certain to get appealed. The questions is whether this particular opinion (as opposed to a more sound one) makes a positive outcome at the appellate level less likely. I'm not sure what to think about that. The Sixth Circuit will not be bound by Judge Taylor's reasoning; they're free to affirm her judgment for reasons other than the ones offered in her opinion. Hopefully, the panel that hears the case will affirm it, and in doing so, release a more persuasive opinion.

I'm thankful that Judge Taylor had the courage to stand up and declare this program to be illegal (because it clearly is). And I hope that her judgment, in and of itself, will move this debate in the right direction. Yet I can't help but feel that a real opportunity was missed here. This was the first decision to reach the merits of the NSA program, and it therefore had enormous potential to persuade the public and encourage other judges (especially those reviewing it on appeal) to follow suit. Maybe this opinion will do that, but I fear it won't. And if not, that will be a real shame.