Federal Judge Anna Diggs Taylor of Detroit ruled earlier today that the NSA’s international terrorist surveillance program is unconstitutional. I haven’t yet seen the text of the opinion, and therefore can’t comment on it in detail. However, as we’ve written repeatedly (for example, here), the federal courts have held on a number of occasions that the President has the constitutional power under Article II to order warrantless surveillance for national security purposes. The Second, Third, Fourth, Fifth and Ninth Circuits have so held, as has the special FISA Court of Review. And those cases dealt with domestic warrantless intercepts, as opposed to the international communications that fall within the NSA program.
One of the serious weaknesses of our federal judicial system is that in many cases, plaintiffs can forum-shop for a favorable district or judge. Here, the ACLU, the plaintiff in the case, could have brought the case anywhere in the United States. The ACLU naturally avoided the circuits that had already upheld warrantless surveillance as an executive power; the Sixth Circuit, which encompasses Michigan, has not ruled on the issue, to my knowledge. The ACLU was able to get its case before Judge Taylor, a 1979 Jimmy Carter appointee who was described by the Detroit Free Press as “a liberal with Democratic roots.”
It is interesting, and possibly significant, that Judge Taylor was involved in a judge-shopping controversy in connection with her effort to preserve race discrimination at the University of Michigan, where her husband is a regent:
Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Friedman, who had been assigned it through a blind draw–and who was suspected of being skeptical about affirmative action–and consolidate it with a similar suit against the university’s undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed “the highly irregular” effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences.
Consistent with unanimous precedent in the Federal Courts of Appeal, I would expect the 6th Circuit to reverse Judge Taylor’s ruling and uphold the NSA program. That’s a year or more off, however, and in the meantime the ACLU and the Democrats got the headlines they wanted from one of their own.
UPDATE: The opinion is available here, but I’m on vacation. I’ll leave it to Paul and Scott to dissect.
FURTHER UPDATE: Patterico has more, including a roundup of law professor commentary. The consensus is not kind to Judge Taylor.