ACLU v NSA

I thought we probably should take note of the recent decision by a US district court that the Bush administration's program of unwarranted wiretapping of US to Outstide US calls is unconstitutional and possibly a violation of criminal law.

I personally don't know how to evaluate this decision. To me the basic points of the judgment jive nicely with what my sense of constitutional law tells me a correct judgment in the case is. From the parts of it I've read, this extends to both the specific conclusions and reasoning used to justify the conclusions. But I've also seen a lot of sympathetic summaries of the judgment by those who adamently reject the rationale and use of precedent while accepting the judge's basic findings. So, just don't know how to judge this myself anymore. The facts of the case seem clear so it seems odd to me to think that a seasoned judge -- predisposed or not to supporting Bush's War on Terror -- would write a poor judgment. For those who see constitutional problems with warrentless wiretapping, the problems are fundamental ones that are obvious to anyone who understands what a law is and how it functions. The Judge's conclusions, as I understand them, are just reiterations of the basic point that the executive is not magically beyond the law (either constitutional or as passed by Congress). So, again, how couldn't any capable constitutional lawyer write a competent argument on the subject?

So, when it comes up for appeal, either there are lots of people who accept the judgment's conclusions yet grossly misjudge the strength of its reasoning (which I find hard to believe, personally, but it remains a hopeful possibility) or I have to come to terms with the fact that a clearly capable federal judge is unable to defend the rule of law.

Perhaps there is a kind of third alternative. I read one theory that claims that the decision was a kind of "punt" by the judge. Knowing that there are several basic issues at play that haven't typically been the subject of judicial review (perhaps because they just are so fucking obvious), she writes something in the spirit of the law, but doesn't bother to work out much of a decision because she knows its all going to be decided anyone it higher courts. Again, I haven't much of a clue how to evaluate the possibility of such a scenerio, but I find it hard to believe that a judge would have the obvious antipathy for the administration and its odious contempt for the law, and also know a little old case called Bush v Gore, and not want to go on the record making the strongest possible judgment you could make.

Some links

ACLU v NSA Decision
Different Programs in the Administration's unwarranted surveillance campaign and different pending lawsuits (Emptywheel is great, if you don't know her work yet!)
Sympathetic critique of Judge's Decision