Wiretap decision goes over the top

Published August 19, 2006 at midnight

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It's unfortunate that the first federal judicial ruling on the Bush administration's "terrorist surveillance" program ended up a political statement, rather than a dispassionate legal analysis of the policy.

That's because the ruling issued Thursday in Detroit by U.S. District Judge Anna Diggs Taylor, which found that warrantless wiretaps are unconstitutional, is likely to be slapped down on appeal. And that's true despite there being good reasons to question the program's legality. Many scholars who agree with her conclusion also think the 43-page decision will not stand.

Taylor's opinion was quickly stayed by the 6th U.S. Circuit Court of Appeals, so the surveillance program is still in business until the appeal is heard Sept. 7. And now the program will almost certainly remain in effect until Congress endorses it in legislation, or a more credible legal challenge is posed.

Taylor employs plenty of florid rhetoric in the opinion, comparing President Bush with King George III and at times saying "obviously" and "undisputedly" the wiretap program violates the Constitution. But her arguments show a profound misunderstanding of the Bill of Rights, so it's unlikely to persuade appellate judges. And the main constitutional question remains whether these wiretaps are considered unreasonable searches under the Fourth Amendment.

At one point, Taylor asserts that the Fourth Amendment "in its few words requires reasonableness in all searches. It also requires prior warrants for every reasonable search . . . " No, it doesn't.

George Washington University law professor Orin Kerr, who's no fan of the wiretap program, has noted that the Supreme Court has allowed warrantless searches of goods, persons and information that cross the border; otherwise, customs and immigration enforcement would be impossible.

Moreover, in a precedent Taylor cites, the "Keith" decision from 1972, the high court left open the possibility that the government might never have to obtain a warrant to conduct foreign surveillance. How Taylor could misrepresent this landmark ruling is baffling.

What we're left with is a decision that doesn't pass a smell test - and the likelihood that the government's wiretap surveillance of calls between the United States and foreign countries will continue without greater oversight.

MISREADING THE 4TH AMENDMENT

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