Judge Taylor glancingly deals with SCOTUS’ Keith decision but doesn’t even bother to assess the FISA Appeals Court opinion in In Re Sealed Case, 2002 in which that panel of three federal judges skilled in this area of the law noted:
It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: “We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” 407 U.S. at 321- 22.30 But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and “ordinary crime.” Id. at 322. It pointed out that “the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes.” Id.
The main purpose of ordinary criminal law is twofold: to punish the wrongdoer and to deter other persons in society from embarking on the same course. The government’s concern with respect to foreign intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity. As we discussed in the first section of this opinion, the criminal process is often used as part of an integrated effort to counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a secondary objective;31 indeed, punishment of a terrorist is often a moot point.
The judge doesn’t deal with this passage or other relevant passages not because they are dicta –they are– but because there is no answer to the logic and the obvious conclusion that the NSA program –wartime surveillance aimed not at prosecuiting law breakers but stopping terrorist attacks– is indeed not governed by the Fourth Amendment’s prohibitions.
No doubt the judge ruled as she understood the Constitution, but she doesn’t understand the Constitution or the war, and her refusal to deal with a higher court’s on-point discussion telegraphs her intellectual insecurity about her “reasoning.” She will be reversed, most likely following a lengthy stay of her order.Implementation of the order would certainly disrupt ongoing surveillance of terrorists and thus endanger innocent lives, and the possibility of that harm should be sufficient to maintain the stay until higher courts intervene to reverse this absurd decision..
The Ned Lamont Democrats are beside themselves with joy, and Pat Leahy is leading the standing ovation for the judge.
I might have to send her a thank you note myself, though not for her logic or her abuse of precedent.
Rather, the judge has triggered another great moment of clarity about the Ned Lamont Democrats (and the Jon Tester Democrats in Montana, the Debbie Stabenow Democrats in Michigan, the Maria Cantwell Democrats in Washington State, the Sherrod Brown Democrats in Ohio etc etc.) Judge Anna Diggs Taylor is a Jimmy Carter appointee, and so she’s even given us a twofer today: Illustrating the vast dangers of liberals running national security, and the lasting impact of liberal presidents on national security.
Carter lost Iran to the Islamist fanatics; engineered the deal that brought North Korea nukes, and now his judicial legacy is trying to blind us to the terrorists.
Don’t run for your life in the fall. Vote for your life. Every vote for a Democrat (except Joe Lieberman) is a vote against victory.