Thursday, August 24, 2006

One of Judge Taylor's more nonsensical statements One of Judge Taylor's more nonsensical statements

The following from Judge Taylor's decision in the ACLU, et al. v. the NSA, is one of her more nonsensical statments:
As long ago as the Youngstown case, the Truman administration argued that the cumbersome procedures required to obtain warrants made the process unworkable.56 The Youngstown court made short shift of that argument and, it appears, the present Defendants’ need for speed and agility is equally weightless. The Supreme Court in the Keith57, as well as the Hamdi58 cases, has attempted to offer helpful solutions to the delay problem, all to no avail.
I think what is obvious here is that the judge has most likely not read any of the cited cases. Yes, the Youngstown case was decided during the Korean War. But it didn't involve warrants at all, nor did it involve surveilance of any kind, and esp. not electronic surveilance of international and foreign communications. Rather, that case revolved around the Truman administration's attempt to seize and operate steel mills when their workers went on strike. The other two cases don't help her point much more than did the Youngstown cite.

The relevance of Youngstown to the debate is most likely in Justice Jackson's concurrence, in which he divides Executive action into three categories, depending on how it interacts with Congress. The TSP presumably falls into Category III in respect to FISA, since Executive power here would directly countervene Congressional action, and, thus, be at its lowest ebb in such a case.

But of course, in Hamdi, only two of the most liberal Justices picked up Jackson's Youngstown concurrence. It was only in the uncited Hamdan case that a majority gave it luke warm support.

As an addendum, it is also interesting to note that the government did address Youngstown in its motion to dismiss (p. 36):
The classified record would further demonstrate, in particular, that the President's action in authorizing the TSP is not fairly comparable to the presidential action at issue in Youngstown Sheet & Tube Co. v. Sawyer, supra. There, the President's action to seize a steel mill was deemed too attenuated from his core Commander in Chief authority, see 343 U.S. at 587, and to extend into the sphere of Congress's power to regulate domestic matters under the Commerce Clause, id. at 588. The facts underlying the TSP demonstrate that the activities authorized by the President are not several steps removed from the actaul conduct of a military campaign but are an essential part of that campaign. Yet to demonstrate that this is so would require an exposition of evidence that cannot be publicly disclosed.


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