Anyone who knows what legal analysis and legal argument look like — anyone who knows the requisites of legal reasoning — must look on the handiwork of Judge Anna Diggs Taylor in the NSA case in amazement. It is a pathetic piece of work. If it had been submitted by a student in my second year legal writing class at the University of St. Thomas Law School, it would have earned a failing grade.
On the issue of the legality of warrantless interception of enemy communications, for example, it is entirely conclusory. It does not address precedent. It assumes its conclusion, essentially framing the issue as whether the president can break the law. It simply asserts that the NSA eavesdropping program is “obviously in violation of the Fourth Amendment” — apparently because it is warrantless. (Wrong.) She sagely observes that the “President of the United States is himself created by that same Constitution” — you know, the one with the Fourth Amendment that she apparently thinks requires warrants in all cases.
Judge Taylor is like the big bad wolf in the fairly tale. She huffs and she puffs. I think she’s facing the brick house that can’t be blown down — she at least can’t blow it down — but the end of this unedifying fairy tale has yet to be written by a higher and presumably more competent authority.