Patterico's Pontifications


Ideologue Leftist Judge Rules NSA Program Unconstitutional

Filed under: Civil Liberties,Court Decisions,General,Judiciary — Patterico @ 5:52 pm

As I predicted last month, the NSA’s controversial surveillance program has been ruled unconstitutional by Judge Anna Diggs Taylor, an ideologue Carter-appointed judge who has a documented history of bending the rules to obtain the leftist result.

As I reminded readers last month, Taylor once engaged in a highly unusual attempt to take the Michigan affirmative action case from a conservative judge:

Earlier, Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Freedman, who had been assigned it through a blind draw–and who was suspected of being skeptical about affirmative action–and consolidate it with a similar suit against the university’s undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort . . . after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed “the highly irregular” effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences.

Based on this history, I predicted in my earlier post that Judge Taylor would rule the NSA program unconstitutional. If Judge Taylor was willing to bend the rules to promote affirmative action, why not twist the law in order to rule unconstitutional a significant Bush anti-terror program?

I have not yet read the decision, but a limited sampling of reaction from intelligent lawyers across the blogosphere suggests that she did indeed twist the law, as I predicted she would.

Eugene Volokh says that the opinion “seems not just ill-reasoned, but rhetorically ill-conceived.” He calls it a “seemingly angry, almost partisan-sounding opinion” which is “rich in generalities, platitudes . . . and “obviously”‘s, and poor in detailed discussion of some of the government’s strongest arguments.”

Orin Kerr describes the opinion using phrases like: “well, um, it’s kind of hard to know what to make of it” and “I confess that this has me scratching my head.”

Dan McLaughlin:

Judge Taylor’s opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process.

No, it’s not going over well at all — among people with intellectual integrity, that is. (Those lacking integrity are, naturally, thrilled.)

Again: this is no surprise. An activist leftist judge with little respect for established legal procedures could hardly be expected to do anything else.

UPDATE: It should be noted that some of the above commenters have expressed strong doubts about the program’s legality (like Volokh) or conclusive tentative opinions that it is illegal (like Kerr) — yet they are still utterly critical of the court’s reasoning, or lack thereof. The fact that intellectually honest people agree with the result but are so critical of the reasoning is damning indeed. Even dishonest folks like Greenwald must concede that the opinion is deficient in analysis and argument — but folks like that don’t care, as long as they like the result.

UPDATE x2: I have now read the opinion. It is one of the most embarrassing pieces of garbage I have ever read. The idea that a sitting federal judge wrote such a shoddy piece of junk in a high-profile case should make even the most rabid Bush-hater squirm.

The word “undisputedly” is repeated again and again as a substitute for any effort at analysis or argument.

The judge leaps to decide the constitutional issue ahead of the statutory one, in contravention of well-accepted principles mandating the opposite approach.

She fails to perform balancing tests, or to address solid arguments for a warrant exception — like the border search exception to the warrant requirement.

And tomorrow, the media will shun expert analysis that would reveal these glaring deficiencies in her “reasoning.” Count on it.

UPDATE x3: Xrlq has convinced me that Kerr’s opinion on the illegality of the program is tentative, not conclusive, and I have updated the post to reflect this.

Hagee’s Office Responds: Contradicts L.A. Times

Filed under: Dog Trainer,General — Patterico @ 12:01 am

I heard back from General Hagee’s office yesterday regarding my inquiry about when Gen. Hagee briefed John Murtha about Haditha. The bottom line: Gen. Hagee’s office has directly contradicted an assertion by the L.A. Times that Gen. Hagee briefed John Murtha on Haditha before Murtha accused Marines of killing civilians in cold blood. Gen. Hagee’s office confirmed to me that the General’s first briefing to Murtha took place a week after Murtha had already made his public accusations.

The background is here. Briefly, Murtha made public statements on May 17 in which he accused Marines of killing civilians at Haditha “in cold blood.” On May 26, the L.A. Times reported that Gen. Hagee had briefed Murtha before his May 17 statements:

Hagee last week briefed key congressional leaders on the upcoming report. One of those, Rep. John P. Murtha (D-Pa.), a retired Marine colonel, said later that Marines “killed innocent civilians in cold blood.”

I have bolded the word “later” to emphasize what The Times claimed: first, Hagee briefed Murtha, and then “later,” Murtha made the “in cold blood” accusation.

Based on news reports, I suspected this was wrong. Murtha’s “in cold blood” statement was made on May 17, and I believed that Gen. Hagee had briefed Murtha well after that. Later news reports — in particular this one from Reuters — appeared to confirm my suspicions.

But when I wrote the L.A. Times Readers’ Representative, she insisted that The Times‘s report had been accurate, despite my having provided her with evidence to the contrary, including the Reuters story. Some suggested that Reuters might have gotten the story wrong, or overlooked an angle. So I contacted Gen. Hagee’s office directly.

I heard back yesterday from the Public Affairs Officer for the Commandant. She directly contradicted the L.A. Times‘s version of the facts — but declined to criticize the article specifically. Here is her statement:

While it would not be appropriate to comment on any particular press article, I can confirm that the Commandant of the Marine Corps, Gen. Michael Hagee, provided a progress update on the Haditha investigations to Congressional leaders, to include Rep. Murtha, on May 24, 2006.

In a follow-up phone call, she confirmed that May 24 was the first progress update Gen. Hagee gave Murtha and others. I specifically asked her whether May 24 was the first time Gen. Hagee spoke to Congressman Murtha about Haditha, and she said “yes.” So Hagee first briefed Murtha on Haditha on May 24 — a solid week after May 17, when Murtha first accused Marines of killing civilians “in cold blood.” Yet the L.A. Times specifically said that Hagee had briefed Murtha first, and Murtha “later” made his “in cold blood” accusation.

If Hagee’s office is right, then the L.A. Times May 26 article was wrong.

I can only speculate about where Murtha got his information, but according to Gen. Hagee’s Public Affairs Officer, it wasn’t from General Hagee himself (as Murtha had claimed to the Philadelphia Inquirer). Not only did Murtha make his statements before the investigation was complete, he didn’t receive his preliminary information from the top brass before accusing Marines of cold-blooded murder.

And the L.A. Times covered for him, and continues to do so — even after I have told them that Hagee’s office says otherwise.

You can reach the Readers’ Representative at

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