Anna Diggs a Hole

Friday, August 18th, 2006 1:17 pm by Neal

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OK, I am not a lawyer, but I can’t help but note a trend, by lawyers, regarding Judge Anna Diggs Taylor’s pathetic reasoning in the NSA case. Here’s what Scott at powerline has to say:

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.

Here’s a brief excerpt of what Bryan Cunningham (who served in senior positions in the CIA and as a federal prosecutor under President Clinton) has to say about this decision in his article, Amateur Hour? A judge’s first-year failing-grade opinion.

We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.

Folks, that is about as strongly as lawyers ever condemn someone’s legal opinion. Read on for Cunningham’s demolition of this misguided judge’s “opinion.” Anna Diggs Taylor has served up one steamy, stinking pile of a decision that surely won’t stand.


Today’s Washington Post editorial, A Judicial Misfire, is not complimentary of Judge Taylor’s opinion:

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.

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