Bryan Cunningham who served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush has written this fantastic piece on National Review Online.
He says of the recent decision by Carter appointee federal court judge Diggs-Taylor which ordered the “president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications.” :
We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.
He argues that the ruling conatains “process fouls.”
Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an â??exceptionâ? to FISAâ??s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISAâ??s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISAâ??s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.
Cunningham also demonstrates other egregious errors in the judge’s decision including ignoring contrary authority, appeals Court Cherry picking, selective reading “redux”, and trivializing the 1st and 4th Amendments.
This ruling is a perfect illustration of judicial activism- substituting personal preferences for a strict interpretation of the law. And it shows why elections matter (she was a Carter appointee) and why liberals despise Bush so much (among other reasons of course, but judicial reform was a top priority of the Bush admin- replacing judicial activists with strict constructionists and originalists in the mold of Scalia and Thomas).
Cunningham concludes:
Whatever Judge Taylorâ??s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the â??9/11 Part 2â? British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.
As Judge Taylorâ??s new favorite justice, Robert Jackson himself, warned, the courts should not â??convert the constitutional Bill of Rights into a suicide pact.â? I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylorâ??s giant step in that direction to stand.
Yet another perfect illustration of why liberals cannot be trusted with national security. they appoint judges like Diggs-Taylor.