"The fox knows many things, but the hedgehog knows one big thing."


Glenn Reynolds:

Barack Obama:
"Impossible to transcend."

Albert A. Gore, Jr.:
"An incontinent brute."

Rev. Jeremiah Wright:
"God damn the Gentleman Farmer."

Friends of GF's Sons:
"Is that really your dad?"

Kickball Girl:
"Keeping 'em alive until 7:45."

Hired Hand:
"I think . . . we forgot the pheasant."

I'm an
Alcoholic Yeti
in the
TTLB Ecosystem

Friday, August 18, 2006

Not The New York Times

The New York Times:
. . . with a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them.
The Washington Post:
THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency's program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

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.
Judge Diggs found the program (about which she took no evidence, relying instead on what she read in the newspaper) to violate the First and Fourth Amendments to the Constitution, as well as to contravene the Foreign Intelligence Surveillance Act ("FISA"). It is our view that the program does not violate the Fourth Amendment, that discussion of the First Amendment in this context is just plain silly, and that these activities violate FISA.

Contra Judge Diggs, the ACLU, the New York Times and many other fuzzy-thinkers, however, that conclusion not only does not answer the question, it simply clears the stage so that the real question can be posed:
Does the Constitution grant to the Executive certain powers which, particularly in time of war, may not be limited or interfered with by the other branches of the Government?
The answer is plainly that it does. Certainly Congress cannot pass a statute asserting that it has lost confidence in the military abilities of George W. Bush and, accordingly, appoints Nancy Pelosi as Commander in Chief of the armed forces of the United States.

And so the question, not even posed by Judge Diggs, is whether this particular program involves the exercise by the President of such a power. We're not so sure that it does.

More (and better) ruminating at NRO, and The Volokh Conspiracy. There is even a remarkably scream-free analysis at Power Line.

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