Friday, August 18, 2006

The Judge Taylor decision fallout

Hopefully, there will not be any. Immediately after her ruling, the DoJ appealed and the ruling is stayed pending review by the Sixth Circuit.

The Monk did want to highlight a couple of things in her honor's opinion. The Baseball Crank said it "reads like a parody of bad judicial reasoning." That's a charitable explanation.

First, the Plaintiffs in the case basically admit that they are communicating with potential terrorists -- as Taylor's footnote 7 indicates:
. . . in a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. Attorney William Swor also provided a similar declaration. Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq.

So Taylor essentially holds that a person may coordinate terrorist activities and the United States acts unconstitutionally by monitoring those communications that go outside US borders. How? She says the information gathering is "obviously in violation of the Fourth Amendment." Let's see, Fourth Amendment rights require a reasonable expectation of privacy violated by an unreasonable search and/or seizure. So she implicitly holds that the terrorist coordinators have a reasonable expectation of privacy on the phone, that's arguable. She also implicitly holds the government's surveillance is unreasonable, that's untenable -- the surveillance was limited to calls going into the US from other nations or originating in the US and going to other nations. The government has the inherent authority to police its borders, regardless of how they are crossed (thus, no flight can cross US airspace without approval of the FAA; if such approval is not obtained, the FAA is within its rights under US and international law to force the plane down).

This is not a legal decision by the judge, it's a political one. Here's the paradigm that proves my point:
The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

That statement needs analysis.

That's not an honest characterization of the Government's position, the law or the way our system works, it's a DailyKos talking point. The notion that the Government claimed Presidential authority to violate the Constitution is risible, unworthy of a judge with intellectual integrity and unwarranted.

Moreover, what is a "law of Congress"? It is an irrelevancy -- there are no laws of Congress. The United States Code is made up of laws of the United States. Congressional bills do not become laws until and unless either the President signs them or the President vetoes them and Congress overrides the veto. This is Schoolhouse Rock material that my 8-year old niece can understand.

But Taylor's use of the phrase "laws of the Congress" is itself revealing. This is a concept that has gained many adherents on the Left -- Congress passes laws, Presidents merely execute them. Thus, Congress is like a Parliament and the President is merely some manner of errand boy. It makes the laws and the President's job is mechanical. The President cannot execute laws in any way other than how Congress intended them to be executed. That notion itself is at odds with history and the Constitution.

The President's job is to ensure that the laws of the United States are "faithfully executed." That faithful execution is NOT referable to the will of Congress. Instead, the President's job is to ensure the laws of the United States are faithfully executed in accordance with the President's oath to protect and defend the Constitution of the United States. The President does not answer to Congress, he answers to the nation and must do so in accordance with the Constitution, not Congressional will. This is basic civics, but it eludes entirely too many judges and "academics". Evidently that list includes Judge Taylor.

She did her position, her court and the nation a disservice with this opinion because of what her analysis was, not just because of her conclusion.

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