Why the Wiretapping Ruling Is Vulnerable

If you’re troubled by the Bush Administration’s warrantless eavesdropping program, you can’t be thrilled with Thursday’s opinion by U.S. District Judge Anna Diggs Taylor.

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Sure, Judge Taylor struck down the program, dealing a third judicial blow to the President’s claim of expansive war powers. The opinion comes two months after the Supreme Court rejected the Administration’s version of “due process lite” for detainees at Guantanamo Bay, and a month after a San Francisco judge allowed a lawsuit against AT&T for allegedly collaborating in the eavesdropping program.

But Taylor’s opinion is remarkably thin on legal reasoning, leaving it vulnerable to getting reversed by the generally conservative Sixth Circuit Court of Appeals. Worse, the opinion’s provocative, almost dismissive, language gives weight to criticism that this decision was more about politics than the law.

Take this phrase, for example: “There are no hereditary kings in America and no powers not created by the Constitution.” Or this one: The President’s orders “violate the Separation of Powers ordained by the very Constitution of which this President is a creature.” Good stuff, but not the kind of measured legal arguments that can persuade an appellate judge to agree with Taylor’s decision.

Here’s a rundown of some weaknesses in her opinion.

The judge ruled that the surveillance program violates the Constitution’s Fourth Amendment because it allows officials to “search” people’s phone calls unreasonably and without a warrant. But she didn’t say how the searches are unreasonable. If they tap into an old-fashioned call between a couple in Peoria who rightly assume their conversation is private, that’s one thing. It’s quite another if the couple uses a cordless phone (because they shouldn’t expect privacy) or if one person receives the call overseas (because he may not be covered by the Fourth Amendment). And some searches don’t require warrants, as when a customs agent takes a look in your bags when you cross the border. Does the eavesdropping program fall into an exception to the warrant requirement? Does it cover the couple in Peoria? We don’t know, and Taylor didn’t tell us. She just said that it “obviously” violates the Fourth Amendment, and that’s not much of a reason.

The judge also ruled that the program violates the First Amendment because it makes people afraid to speak freely or associate with organizations that sound suspicious. That may be true. More likely, though, the disclosure of the program rather than the program itself is what makes people afraid. And there are lots of circumstances in which legal eavesdropping, the kind that complies with the Fourth Amendment, makes people afraid to speak or associate but doesn’t violate the First Amendment. We don’t know whether the surveillance program falls into one of those circumstances, because we don’t know why, or really whether, it violates the Fourth Amendment.

The big issue facing the judge was whether Bush, despite everything else, has the power in a time of war to protect national security through eavesdropping. Bush said he does for two reasons: because Congress gave him that power in authorizing him “to use all necessary and appropriate force,” and because he has it anyhow as the commander-in-chief. Taylor said he was wrong on both counts. But she said so near the end of the 44-page opinion, and by that point may have been too exasperated with the Administration to tell us exactly why.

She ruled that Congress didn’t say anything about eavesdropping in authorizing force, and being the top commander doesn’t allow the President to eavesdrop for the same reason it doesn’t allow him to deny a fair hearing to an imprisoned American citizen. Or something like that. The judge missed a perfect opportunity to mention the Supreme Court’s June decision in the Guantanamo Bay case, which cast serious doubt on the expansive view of war powers that the Administration argued for in this case. Oh, well.

It’s hard to say why a federal judge wouldn’t do her best work on a case of historical importance. Maybe she wanted to get the opinion out quickly, before Congress overrode her decision with a bill resolving the issue. Maybe she wanted to shape the debate, offering some zesty talking points to opponents of the eavesdropping program. As a legal matter, though, the opponents deserved better.