Thursday, August 17, 2006

President Taylor President Taylor

WSJ article: President Taylor:
A federal judge rewrites the Constitution on war powers
takes Judge Anna Diggs Taylor to task for her decision Thursday that NSA's TSP is illegal. Especially of note:
Take the Fourth Amendment first. The "unreasonable search and seizure" and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King's political opponents under general and often secret warrants.

Judge Taylor sees an analogy here, but she manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found.

As for the First Amendment, Judge Taylor asserts that the plaintiffs--a group that includes the ACLU and assorted academics, lawyers and journalists who believe their conversations may have been tapped but almost surely weren't--had their free-speech rights violated because al Qaeda types are now afraid to speak to them on the phone.

But the wiretapping program is not preventing anyone from speaking on the phone. Quite the opposite--if the terrorists stopped talking on the phone, there would be nothing to wiretap. Perhaps the plaintiffs should have sued the New York Times, as it was that paper's disclosure of the program that created the "chill" on "free speech" that Judge Taylor laments.

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