A Blip

As you know by now, a liberal Detroit judge has ruled against the NSA's terrorist communications intercept program initiated by President Bush. If you fan out across the blogosphere, everyone has an opinion on the ruling.

I'm not really up to it, so I'll go with the professionals, starting with the Volokh Conspiracy

Eugene Volokh:

...the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Dale Carpenter:

I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional. I have written so here. But I am less sure this is an issue courts should review, and even less sure that this case is one they should review.

So while the much sexier questions of executive power, the First Amendment, and the Fourth Amendment, will no doubt occupy many of us over the coming months (as they already have), I'd be willing to bet that at either the appellate court or the Supreme Court the suit will be dismissed for lack of standing.

Orin Kerr:

I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment...

It's hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that's the issue before the court, and my sense is that we really don't know enough to answer it without knowing the facts...

I can come up with explanations for why a district court judge inclined to rule against the program would put out an opinion that isn't quite ready for prime time. For example, Senator Specter's bill would take these issues away from the district court, so the choice might be to speak now or never. But at least based on the court's Fourth Amendment analysis, I suspect this opinion is important more for its political impact and its triggering of appellate review than for any analysis in the opinion itself.

Mark Levin hits many of the same points. The consensus among these legal scholars is that the judge made a very weak ruling, and seem to indicate that it will probably get tossed at a September 7 appellate court hearing.

My gut reaction? The ACLU venue-shopped to get a judge that fit their needs, and won a short-term political victory. In the long run, it won't affect the operations of the NSA program all that much, if at all.

I just can't get too excited or irate over a case that seems assured to die a quick death.