Unsurprising
It should come as little surprise that the ACLU found a district judge -- a Carter appointee -- to ignore previous rulings on Presidential commander-in-chief powers and find the NSA wiretapping program illegal. [PDF of the decision here.]
Eugene Volokh over at the Volokh Conspiracy has some more analysis of the ruling, and he doesn't seem to be too impressed with the judge's ruling.
I'd like to echo an issue that Volokh raises and the judge fails to address in her decision.
The judge completely ignores prior precedent on border searches. When you enter the United States from overseas, they can search your baggage and your person for contraband without a warrant or even the slightest suspicion that you may be guilty of something. In fact, a recent ruling by the Ninth Circuit allows Customs Enforcement to seize and search a person's laptop computer when they cross the border.
The 9th Circuit refused to overturn his conviction, ruling that American citizens effectively enjoy no right to privacy when stopped at the border.
"We hold first that the ICE's forensic analysis of Romm's laptop was permissible without probable cause or a warrant under the border search doctrine," wrote Judge Carlos Bea. Joining him in the decision were Judges David Thompson and Betty Fletcher.
Bea cited the 1985 case of U.S. v. Montoya de Hernandez, in which a woman arriving in Los Angeles from Columbia was detained. Police believed she had swallowed balloons filled with cocaine, even though the court said they had no "clear indication" of it and did not have probable cause to search her.
Nevertheless, the Supreme Court said police could rectally examine De Hernandez because it was a border crossing and, essentially, anything goes. (The rectal examination, by the way, did find 88 balloons filled with cocaine that had been smuggled in her alimentary canal.)
So, the U.S. government can monitor everything that comes across the border without a search warrant or even probable cause, but according to Judge Anna Diggs Taylor, cannot monitor international phone calls to or from associates of suspected terrorists.
The ruling will be quickly appealed -- and hopefully -- eventually overturned. To do otherwise would be foolishly offering an opening to terrorists where they can plan attacks with little fear of being stopped.
*UPDATE* There's quite a few more posts on this ruling over at the Volokh Conspiracy. If you follow the link, at the bottom of the post are more links to all the related posts. It's interesting to note that while several of the conspirators over there believe that the NSA program is illegal, they are all of the opinion that this judge's ruling is an incredibly lame effort toward that end.
You can find another dissection of the ruling by Paul Mirengoff over at Powerlineblog.
You can find a short back and forth between Hugh Hewitt, John Eastman and Erwin Chemerinsky on the ruling from Thursday's radio show here.
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[...] 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. [...]