August 19, 2006
Experts Fault Reasoning in Surveillance Decision
By ADAM LIPTAK
Even legal experts who agreed with a federal judges conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decisions reasoning and rhetoric yesterday.
They said the opinion overlooked important precedents, failed to engage the governments major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.
Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.
It does appear, Mr. Bashman said, that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.
The main problems, scholars sympathetic to the decisions bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.
She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.
That ruling is rather innovative and not a particularly good argument, Jack Balkin, a law professor at Yale who believes the program is illegal, wrote on his Web log.
Judge Taylor also ruled that the program violated the Fourth Amendments ban on unreasonable searches and seizures. But scholars said she failed to take account of the so-called special needs exception to the amendments requirement that the government obtain a warrant before engaging in some surveillance unrelated to routine law enforcement. Its just a few pages of general ruminations about the Fourth Amendment, much of it incomplete and some of it simply incorrect, Orin S. Kerr, a law professor at George Washington University who believes the administrations legal justifications for the program are weak, said of Judge Taylors Fourth Amendment analysis on a Web log called the Volokh Conspiracy.
Judge Taylor gave less attention to the more modest statutory argument that has been widely advanced by critics of the program. They say that it violates a 1978 law requiring warrants from a secret court and that neither a 2001 Congressional authorization to use military force against Al Qaeda nor the presidents constitutional authority allowed the administration to ignore the law. A recent Supreme Court decision strengthened that argument. Judge Taylor did not cite it.
Some scholars speculated that Judge Taylor, of the Federal District Court in Detroit, may have rushed her decision lest the case be consolidated with several others now pending in federal court in San Francisco or moved to a specialized court in Washington as contemplated by pending legislation. Judge Taylor heard the last set of arguments in the case a little more than a month ago.
The decision has been appealed, and legal scholars said Judge Taylor had done the American Civil Liberties Union, which represents the plaintiffs, few favors beyond handing it a victory. On the other hand, they added, the appeals court is bound to examine the legal arguments in the case afresh in any event.
Indeed, Cass R. Sunstein, a law professor at the University of Chicago, predicted that the plaintiffs would win the case on appeal, but not for the reasons Judge Taylor gave.
The chances that the Bush program will be upheld are not none, but slim, Professor Sunstein said. The chances that this judges analysis will be adopted are also slim.
Eugene Volokh, a law professor at the University of California, Los Angeles, who presides over the Volokh Conspiracy Web log and says he is skeptical of the legality of the wiretapping program, called the decision not just ill-reasoned, but rhetorically ill-conceived.
If I were the A.C.L.U., Professor Volokh said, I would rather have a decision that came across as more-in-sorrow-than-in-anger and that was as deliberate, meticulous, thoughtful and studiously impartial as possible.
Anthony Romero, the executive director of the A.C.L.U., said Judge Taylors decision represented vindication of established limits on the scope of executive authority.
Ultimately, Mr. Romero said, any doubts about the decision will be taken up on appeal by sitting federal judges rather than pundits or commentators.
Judge Taylor, a longtime trial court judge who was appointed by President Jimmy Carter, enjoys a good reputation among lawyers who have appeared before her, according to anonymous comments collected by the Almanac of the Federal Judiciary.
Lawyers interviewed rated Taylor high in legal ability, the almanac concluded. The eight quoted comments ranged from enthusiastic (She is smart as hell) to lukewarm (She is competent).
Supporters of the program, disclosed by The New York Times in December, suggested that Judge Taylors opinion was as good a way to lose as any.
Its hard to exaggerate how bad it is, said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylors failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2002 that said it took for granted that Congress could not encroach on the presidents constitutional power to conduct warrantless surveillance to obtain foreign intelligence.
The decision also failed to cite a Supreme Court decision in June helpful to the plaintiffs, a group of journalists, scholars, lawyers and nonprofit organizations. The decision, Hamdan v. Rumsfeld, struck down the administrations plans to try prisoners at Guantánamo Bay, Cuba, as war criminals. It was widely interpreted as a rebuke to the administrations expansive conception of executive power.
After Hamdan, Professor Sunstein said, this program is not easy to defend.
Professor Balkin said there was a rushed quality to Judge Taylors decision, but he added that her reason for moving fast may have been the laudable one of assuring that more than one appeals court would have the opportunity to pass on the legality of the program.
Martin S. Lederman, a former Justice Department official who believes the program is illegal, said he found the contrast between Justice John Paul Stevenss approach in Hamdan and Judge Taylors in the wiretapping case telling.
Justice Stevens was criticized for not including sound bites and sweeping constitutional interpretation, Mr. Lederman said. Judge Taylors decision, by contrast, he said, was meant for headlines.
