Early on I noted that despite their feelings on the legality of the NSA’s terrorist surveillance program, legal scholars almost unanimously panned the opinion as heavy on rhetoric and light on the law.
I also thought it was worth noting how two of the nation’s most respected newspapers thought about the opinion.
Demonstrating once again that principle must always bow to political considerations, The New York Times editorial praised the ruling as a “careful, thoroughly grounded opinion.”
A far less BDS-afflicted analysis from the Washington Post editorial writers more accurately reflected the consensus legal assessment of the opinion.
Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.
“Not helpful” is the editorial writer’s way of saying “worse than useless.”
One other related thought: In the judge’s opinion finding a violation of the First Amendment, the plaintiffs had argued that they felt constrained from speaking to terrorists overseas because of the Bush administration’s surveillance. Is this admission, in court filings, that they have been contacting terrorists enough to get a warrant to tap their phones?