California Conservative

Dr. James Q. Wilson, the chairman of the Council of Academic Advisers at AEI, has written a piece for the Wall Street Journal that rips Anna Diggs-Taylor’s opinion into tiny little shreds.

Judge Taylor refers to the free speech provision of the First Amendment but fails to explain how listening to a conversation or reading email abridges anyone’s right to speak. Taken literally, a constitutional ban on intercepts would make it impossible to overhear the mafia plotting murder or business executives fixing prices.

If I understand this logic, Dr. Wilson is saying that, if this ruling is taken literally, the First Amendment would prohibit the issuing of wiretaps because they infringe on someone’s First Amendment rights. That’s a scary thought. Here’s another scary thought:

Of course, the ACLU and the other organizations that brought the suit are not criminal conspirators. But for their claims to be taken seriously they must show that they were materially harmed. This is because the Constitution only allows actual cases or controversies, not hypothetical or imaginary ones, to be heard in court. To meet that test, plaintiffs must show that they are the actual victims of a direct and palpable harm. Without that rule, judges would be issuing advisory opinions on what the law may mean, not in settling concrete disputes.

Diggs-Taylor has essentially said that everyone has standing to bring this case. Of course, that part of the ruling will be reversed the instance it hits the Sixth Circuit. Dr. Wilson doesn’t stop there, though:

What is most striking about Judge Taylor’s decision is that she nowhere discusses the approval of warrantless searches by other and higher federal courts. In 1980, the Court of Appeals for the fourth circuit held (U.S. v. Truong Dinh Hung) that “the Executive need not always obtain a warrant for foreign intelligence surveillance.” That is because a “uniform warrant requirement” would “unduly frustrate” the discharge of the president’s foreign policy duties. It would “delay executive response to foreign intelligence threats” by requiring the judges instantly to make decisions about rapidly evolving events.
In 2002 the FISA review court itself held (In Re: Sealed Case) that the president “did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The Supreme Court has never spoken on this matter, but it is astonishing that Judge Taylor never discusses the FISA and appellate court decisions that bear directly on this question.

That these rulings weren’t even mentioned tells me that this was a political hatchet job by a politician wannabe judge. It’s hard imagining that there are judges out there that care this little about the Constitution and precedent. It’s also worth noting that the Senate Judiciary Committee’s Democrats have either been silent on this ruling or they’ve touted it as proof that President Bush overstepped his authority. Does that mean they only care about stare decisis when the subject is Roe v. Wade? Based on this, it’s difficult, if not impossible, to argue otherwise.

Listening in on possible overseas terrorists who are talking to Americans is designed to find out who may attack us, when and how. Such eavesdropping is done to discover who is a terrorist. It is impossible to have “probable cause” to justify hearing such calls, and therefore impossible to obtain in a timely manner a FISA warrant.

I agree.

Technorati: Anna Diggs Taylor, First Amendment, NSA, Stare Decisis

Cross-post at LetFreedomRingBlog

This entry was posted on Tuesday, August 22nd, 2006 at 1:38 am and is filed under Activism, Author: Gary Gross, Homeland Security, Judiciary, Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.