Jurist Imprudence

INVESTOR'S BUSINESS DAILY
Posted 8/28/2006

Warrantless Wiretaps: As Judge Anna Diggs Taylor's surveillance ruling comes up for appeal, the question is not only whether her questionable logic is sustainable, but also whether she should have heard the case at all.

In 2004, there was a media feeding frenzy over the alleged impropriety of Supreme Court Justice Antonin Scalia going on a duck-hunting trip in Louisiana with Vice President Dick Cheney when a case involving Cheney's energy task force and the issue of executive privilege was on the court's docket.

We wonder whether that microscopic concern over judicial impartiality will extend to the recent ruling by Taylor that the government's warrantless surveillance of communications between foreign-based terrorists or those under suspicion and their U.S. contacts was unconstitutional.

Thanks to due diligence by the group Judicial Watch, we know that Taylor serves as a secretary and trustee of a foundation that donated funds to the American Civil Liberties Union of Michigan, one of the plaintiffs in ACLU et al. v. National Security Agency.

Taylor noted on her financial disclosure forms filed in 2004 and 2005 that she serves in those capacities for the Community Foundation of Southeastern Michigan. The executive director of the Michigan ACLU, Kary Moss, says her group had received grants totaling $125,000 from the foundation since 1999.

We have noted many times the ACLU's ongoing campaign to undermine American society and national security. We find it curious that the judge who handed our mortal enemies such as al-Qaida a major victory would also be in a position to make financial decisions benefiting a plaintiff before her court.

Not just any plaintiff, but a plaintiff that opposes every tool we use to fight terrorism — from the Patriot Act to tracking terrorist finances to monitoring their communications.

Taylor's coziness with the ACLU goes far toward explaining the fuzzy logic and curious reading of the law used in her ruling, which seems to be an overturned decision waiting to happen, an event to be fervently hoped for when the appeal is heard Sept. 7.

George Washington University law professor Orin Kerr, who's no fan of the wiretap program, pokes holes in Taylor's assertion that warrantless wiretaps constitute an "unreasonable search" under the Fourth Amendment by noting that the Supreme Court has allowed warrantless searches of goods, people and information that cross the border.

Is walking through a metal detector at the airport, opening your luggage or being subjected to a pat-down unreasonable in this age of terror? We think not. Neither do we think listening in on those plotting to kill people boarding those planes is unreasonable.

Taylor cites the 1967 Katz case in saying that "searches conducted without prior approval by a judge or magistrate were per se unreasonable." She must have missed the class on footnote 23 of that decision, which specifically exempted national security.

Her reference to the 1972 Keith case is similarly flawed. She claims it said a prior warrant was required "even in domestic security matters." In truth, the Keith decision expressed "no judgment" on the scope of the president's surveillance power regarding "the activities of foreign powers, within or without the country" or their "agents" inside the U.S.

When Jimmy Carter's attorney general, Griffin Bell, testified in favor of the Foreign Intelligence Surveillance Act, he told Congress that while the measure didn't explicitly acknowledge the "inherent power of the president to conduct electronic surveillance," it does not take away the power of the president under the Constitution.

Before Taylor's ruling, no American court had said a commander in chief in wartime could not conduct warrantless surveillance. In 1973, the U.S. Circuit Court of Appeals for the Fifth Circuit held that "the president may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

We trust that the 6th Circuit Court of Appeals will more sensibly interpret the law and the Constitution. We trust its judges don't spend their free time funneling money to the ACLU.

Justice may be blind, but our intelligence agencies shouldn't be forced to be.