Ideology 1, Law 0: Another strange decision

Paul Greenberg

8/23/2006 12:01:00 AM - Paul Greenberg
Who is Anna Diggs Taylor and what does she have against national security?

The answer to the first question is: a U.S. district judge in Detroit. The answer to the second is as mysterious as the decision she handed down Thursday.

In her 44-page ruling, Judge Taylor ordered the National Security Agency to stop monitoring international calls to and from this country, aka "domestic spying" in New York Times style.

The judge found the practice not just illegal but unconstitutional. And also un-American in just about every crass, rhetorical way she could. The crux of her opinion reads like an entry in a high-school declamation contest rather than a reasoned piece of jurisprudence.

It's as if Her Honor had mounted her trusty steed and ridden off in all directions - legal, constitutional, philosophical and mainly oratorical.

There may indeed be a legitimate argument against some aspects of the National Security Agency's wiretaps. But this ruling doesn't make it. It's not so much an argument as a series of wild swings:

First off, Her Honor agreed that those challenging the National Security Agency had grounds to sue even if they could not demonstrate any actual material damage to themselves. The mere fear that they might be spied upon was reason enough to let them ask that the whole surveillance program be shut down.

The plaintiffs argued that the very existence of the program is such a threat to their delicate psyches that it should be banned. Because even the possibility that the feds might be listening in - none of the defendants claimed their phone lines were actually tapped - could inhibit their conversations with terrorist suspects abroad. How dare the government do such a thing!

It's an interesting point of view. But it's not mine, at least not since it was reported that these wiretaps may have played a role in the arrest and conviction of at least one would-be terrorist - Iyman Faris, a truck driver who was casing the Brooklyn Bridge with a view to cutting its suspension cables.

It's not the NSA's listening in on international calls that bothers some of us. It's the distinct possibility that soon it may not be able to. Maybe that's because we'd like to think the courts would let the government protect one of our basic American rights - the right not to be blown sky-high.

When the next plot proves successful, and the country is reeling after another 9/11, you can bet the same folks now celebrating this ruling against the administration will be blaming the president for not preventing the massacre.

Judge Taylor found the NSA's surveillance program unconstitutional not only because Her Honor believes it violates the Fourth Amendment, which forbids unreasonable searches, but the First Amendment, too.

Since the existence of such a program might inhibit what people say in the course of international phone conversations.

Again, it's an interesting point of view. Does this mean libel laws are unconstitutional, too, since they tend to inhibit what folks say in print?

(Gosh, who says this decision is all bad?)

What we have here is a triumph of ideology over law. If this ruling holds up on appeal, it'll be another milestone in the radicalization of the federal judiciary. Judge Taylor's pronunciamento may be the most sweeping example of partisan dogma's replacing legal reasoning since the last convention of the American Bar Association. That's when the ABA solemnly resolved to keep the president of the United States from issuing any statement when he signs a bill into law.

Now a judge is doing her best, or rather worst, to keep this administration from detecting terrorist plots. Somehow I was not surprised to read that Anna Diggs Taylor had been appointed to the federal bench by Jimmy Carter.

Happily, the latest plot to blow up American airliners seems to have been foiled by the authorities in London, but Britain's home secretary - John Reid - has deeply offended that country's left-wing press and legal establishment. They say he's exaggerating the threat from terrorism - or at least that's what they were saying before the latest bomb plot was uncovered.

"They just don't get it," Mr. Reid said of his critics, explaining that Britain "probably faced the most sustained period of severe threat since the end of the Second World War."

Maybe that explains what The Hon. Anna Diggs Taylor has against the National Security Agency: She just doesn't get it.

Michael Chertoff, the head of the Homeland Security Department in this country, does. To quote him the other day, this country needs a legal system that allows the government to "prevent things from happening rather than . . . reacting after the fact." For example, a system that allows the National Security Agency to monitor international calls to and from terrorist suspects in real time.

But unfortunately there will always be some judge somewhere who, contrary to Justice Robert Jackson of sainted memory, confuses the Constitution of the United States with a suicide pact.