HOME | BIO | MUSIC | JOURNEYS BY DJ | STUDIO BLOG | POLITICAL BLOG | BOOKING INFO | CONTACT

With a few days now between us and the ruling by a federal judge that this administration's NSA wiretapping program was unconstitutional, the experts have had the time to look over the full opinion and come to some more-than-preliminary conclusions. Their opinion? Not so good.

It seems that even those who agree with the substance of the opinion have found significant flaws with its legal reasoning and procedures. Publius, who has completed two long posts in as many days, has even gone so far as to call it "a legal atrocity."

As much as I hate to say it, the more I read, the more I tend to agree with his conclusion. Although I fully support the conclusions the judge reached, it appears she did so in a legally inappropriate way. And that matters.

My single biggest complaint about this program is that it has been created and managed outside the rule of law. FISA's too burdensome and inconvenient in the post 9/11 world? Perhaps. But it is the law nonetheless, and under our constitution only Congress can change the law. That concept is so fundamental to our system of separation of powers and checks and balances that it shouldn't even need to be said. Thus, although there are concerns about this program violating constitutional rights, there are also concerns about violating constitutional procedures. Procedure matters. But in reaching her opinion here, the judge, it appears, may have violated numerous legal procedures.

Or maybe not. Glenn Greenwald, another blogger for whom I have immense respect, believes that the flaws will ultimately be far less significant than those like Publius might suggest. However, he has yet to respond to a number of the issues raised by Publius, so the debate meaning that the debate is at this point far from over.

Either way, the debate will ultimately be resolved by the Supreme Court, and my guess is that will happen sooner rather than later. Here's hoping no vacancies arise between now and the end of the year!