After the decision by Judge Anna Diggs Taylor to cripple a proven and effective means of identifying, tracking, and apprehending terrorists of all stripes – the Terrorist Surveillance Program – I began to wonder if she has any idea what is at stake in this war, for war is exactly what it is that we are fighting. Worse, I wonder if she really cares. It appears that she has her own agenda and stopping the Islamofascist Pinheads from killing Americans isn't part of it. Her action, if it carries through and isn't overturned by the US Supreme Court, seriously damages the war powers granted by the Constitution.
The 44-page decision, which concludes by issuing a permanent injunction against the [NSA's] wiretapping program, will doubtless occasion much rejoicing among the "imperial Presidency" crowd. That may have been part of her point, as, early in the decision, Judge Taylor refers with apparent derision to "the war on terror of this Administration."
The only war she apparently sees is the war against the Bush Administration and not against Al Qaeda and their ilk. She doesn't seem to realize that if Al Qaeda had its way, she wouldn't be a judge, a lawyer, or anything else that their twisted Islamic death cult decides shouldn't be done by women. In fact, she'd probably be dead by their hands. But that doesn't bother her in the least. She doesn't see the wiretapping being done by the NSA as an intelligence operation with military implications.
We can at least be grateful that President Taylor's judgment won't be the last on the matter. The Justice Department immediately announced it will appeal and the injunction has been stayed for the moment. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death.
So let's set aside the judge's Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The "unreasonable search and seizure" and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King's political opponents under general and often secret warrants.
Judge Taylor sees an analogy here, but she manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found.
It appears that Judge Taylor is no student of history. If she were, she'd know what measures were taken during World War II that limited many civil rights, particularly the rights of Japanese-Americans and large numbers of Nazi sympathizers in the US. The FBI vigorously prosecuted spies and traitors with the help of local authorities and military assets. We were fighting a war against intractable enemies and intelligence was one way we defeated them.
But Judge Taylor seems to think that this war, one against an enemy just as intractable as the Nazis, Italian Fascists, and the Japanese Empire, is nothing more than a ploy to use our enemies as a bugaboo to steal away our rights. Whether she realizes it or not, she has aided our enemies in achieving their goals. We must remember that their aim is to destroy us, to kill us, because we represent everything they are against. You don't defeat such an enemy by tying the hands of the very people you need to fight them. That is suicide. To reiterate what I wrote yesterday, the Constitution is not a suicide pact, despite what Judge Taylor may believe. The wiretapping program of the NSA is not an issue of civil rights being violated, but one of foreign intelligence being gathered to defeat our enemies.