Friday, August 18, 2006

Judge That Ruled NSA Wiretaps Illegal Has History of Ignoring the Law

From, a bit of information about the liberal, Jimmy Carter appointed judge who ruled that the National Security Administration wiretaps on calls to overseas terror suspects are illegal. It seems that in a case involving Affirmative Action preferences at the University of Michigan, she was slapped down hard by a higher court for blatantly disobeying the law. From Opinion and Order by Judge Bernard A. Friedman Denying Defendant’s Motion to Designate Gratz v. Michigan and Grutter v. Michigan as Companion Cases, August 17, 1998...
Judges Feikens and Cook lacked authority for several reasons. First, their designation by the Chief Judge was unlawful. When Chief Judge Taylor disqualified herself, a federal statute required that she assign the portion of defendants’ motion addressed to her to “the district judge in active service, present in the district and able and qualified to act, who is next in precedence.” 28 U.S.C. § 136(e).4 If for whatever reason Chief Judge Taylor believed this statute did not apply, she might instead have elected to reassign the portion of defendants’ motion addressed to her to another judge by blind draw pursuant to E.D. Mich. LR 83.11(d)(1).5 This alternative procedure would at least have protected the appearance of fairness and impartiality. However, Chief Judge Taylor followed neither § 136(a) nor Local Rule 83.11(d)(1), but instead devised her own, novel procedure, whereby she reassigned the entire motion (not just the portion addressed to her) to two judges whom she personally selected to act as a special two-judge panel. . . .

While Chief Judge Taylor recognized that she must disqualify herself pursuant to 28 U.S.C. § 455,6 she nonetheless violated her legal and ethical duty by selecting the judicial officers who were to act in her stead....

By continuing to act after disqualifying herself, Chief Judge Taylor clearly violated § 455, and any action taken subsequent to her disqualification is a nullity. See id § 22.4.1 (“When a judge presumes to take substantive action in a case despite having recused himself from it . . . any such action is often considered a nullity and any orders issued by such a judge are considered absolutely void for want of jurisdiction.”). . . .

The court concludes that Chief Judge Taylor acted without authority when she reassigned both portions of defendants’ motion to a hand-picked, two-judge panel. Because this two-judge panel was constituted unlawfully, it lacked any authority to convene, to hear argument, to issue any opinion or decision, or to take any action of any kind whatsoever in this case....

For these reasons, the court concludes that Chief Judge Taylor lacked authority to refer defendants’ motion, or any portion thereof, to Judges Feikens and Cook; and that the August 6, 1998, “opinion” of Judges Feikens and Cook is unlawful, void and must be stricken. [emphasis added]
Even the Washington Post blasted the arbitrary piece of judicial fiat that claimed to be a ruling from Taylor.
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.

Judge Taylor’s opinion is certainly long on throat-clearing sound bites. “There are no hereditary Kings in America and no powers not created by the Constitution,” she thunders. She declares that “the public interest is clear, in this matter. It is the upholding of our Constitution.” And she insists that Mr. Bush has “undisputedly” violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA’s program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don’t have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.
Taylor, a black woman, is in fact a one-person argument against judicial affirmative action.


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