Saturday, August 19, 2006

Baseball Crank: The NSA Decision: Judging Without Facts or Law Baseball Crank: The NSA Decision: Judging Without Facts or Law

Baseball Crank goes through the TSP decision fairly thoroughly, and finds it lacking: The NSA Decision: Judging Without Facts or Law. For example:
This is the point at which I would, ordinarily, address Judge Taylor's reasons for coming to the opposite conclusion that I did - first and foremost, why she thinks that the program violates the Constitution - but her analysis is so flimsy that it is hard to even discuss. As I noted in my prior discussion, the touchstone of any Fourth Amendment analysis is reasonableness, not the presence of a warrant, and the courts have upheld this rule. This is the basis, for example, for many exceptions to the Fourth Amendment recognized by the Supreme Court, such as the exigency requirement. Yet Judge Taylor, without any citation at all, baldly asserts that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens." Slip op. at 31. She then turns to discuss FISA, ignoring the fact that if a search is constitutionally valid, it does not become invalid simply because a statute says otherwise (it may violate the statute, but that's a separate issue).


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