Some justify the lack of analysis in Judge Taylor’s NSA opinion by arguing that it’s the Government’s fault for doing a poor brief. Glenn Greenwald advances this argument here, and some of his less brainy stooges have followed suit.
The idea that this is all the Government’s fault is nonsense. The Government cannot force a judge to articulate rules incorrectly, as Judge Taylor did when she stated that the Fourth Amendment “requires prior warrants for any reasonable search, based upon prior-existing probable cause” — a flat misstatement of the law.
Nor can the Government force the judge to articulate rules and then simply fail to apply them, as she did in her First Amendment discussion. There, she cited the rule requiring speech restrictions to serve a compelling governmental interest in the least restrictive manner possible. Having stated the rule, she failed to, you know, apply it, choosing instead to resort to our old friend “undisputedly”:
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
That’s not an analysis, folks.
Greenwald’s other point, regarding the Government’s alleged failure to make certain arguments, is confused by the procedural context. Orin Kerr has posted several of the relevant documents. As the comments to his post show, the procedural posture of the case is all mixed up. A decent opinion would have made it clear. But one thing *is* clear: the Government did not intend to waive its substantive arguments, and the judge never said it had. That undercuts Greenwald’s argument severely.