Thursday, August 17, 2006

NSA eavesdropping decision: The Volokh Conspiracy weighs in

Whenever there is something in the news that is of great national import, I try to avoid reading the blogs of "the usual suspects". At least for awhile. I at first search around for the so-called "experts" in the subject matter at hand, those with some experience in the matter, or those that have "been there, done that", or those who not only "talk the talk" but also "walk the walk". Even at that, one has to carefully judge and weigh everything one reads while keeping the "agenda" of the writers in mind at all times.

For instance, before going all ga-ga over the arrest of the fellow in Thailand for the murder of JonBenet Ramsey, I skated around and read as many comments from prosecutors and defense attorneys as I could find, or had the time to read. They are almost unanimous; something doesn't smell right about this. Is this guy a kook or did he really do it? One said, as best as I can remember, "I hope they (Colorado prosecutors) have a lot more than just this guy's confession."

The federal court decision just handed down which ruled that the NSA's domestic surveillance program was unconstitutional is just such a matter of great national import. So, my first reaction was to consult the experts. When consulting any of the experts, my biggest challenge is to find those who do not dig so deeply into the minutiae of the issue at hand so as to cause my eyes to roll back into my head and cause me to become, er, um, zzzzzzzzzzzzzzzzzzzzzzzzz.

I will confess to having read Jeff Goldstein's opinion, also. Prior to going there, however, I was 99.9999% sure of what his opinion would be. But so what? Jeff is a former teacher of English and no more qualified to comment on the court's decision than I. He just writes a lot better. Therefore, I avoided Ace, Allah, Michelle and all of the other "usual suspects". I eventually got to all of them as well as others, but not before I read the opinions of the constitutional lawyers and professors.

The federal court's decision has now been reviewed by Prof. Eugene Volokh (also writing here and again here), conspirator Prof. Dale Carpenter, conspirator Orin Kerr and Jack Balkin. This small group, almost unanimously opposed to the executive branch's NSA domestic surveillance program, is unanimously in agreement on the federal court judge's decision. It's a pig and pigs can't fly.

The unanimous opinion of these legal beagles is that the judge wrote a poorly worded opinion, unfounded in constitutional law, filled with personal opinion and invective and that her decision is a ship heading for the shoals. And most of these writers are opposed to the NSA program and believe it to be unconstitutional and unlawful. Imagine what the right wing of the legal and constitutional law brigade are saying.

Sheesh! Even the Washington Post says the decision is crap.

As I understand it, the 6th Circuit Court of Appeals has already put the kabosh on the district court's ruling. However, I cannot find any verification of this.

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