Judicial malfeasance

(Washington, D.C.): Exactly one week after British authorities announced the disruption of an internationally-organized Islamofascist plot to blow up several airliners en route from the United Kingdom to the United States, a federal judge in Detroit dealt a serious blow to America’s own ability to utilize one of the most effective tools in thwarting that attack.

Yesterday, federal district judge Anna Diggs Taylor ruled the Bush Administration’s Terrorist Surveillance Program (TSP) – an initiative designed to intercept communications between persons in the United States and al-Qaeda operatives oversees – to be unconstitutional, declaring “The public interest is clear in the matter.” Indeed, the public interest is clear in the matter, though it fully contradicts Taylor’s verdict.

Taylor’s decision to grant standing to plaintiffs in the case – an assembly of lawyers, academics and journalists represented by the American Civil Liberties Union (ACLU) – in the first place was in itself a gross violation of judicial authority. The group’s quibble with TSP rested on the contention that it had “chilled” their ability to freely communicate with al-Qaeda and al-Qaeda sympathizers. As an editorial in today’s edition of National Review Online observed:

For Judge Taylor…there are more important interests than protecting Americans from attack. There are lawyers who want to represent al Qaeda sympathizers; there are journalists who want to write about al Qaeda sympathizers; there are Muslim activist groups who want to agitate on behalf of al Qaeda sympathizers.

Clearly, any implication that the “public interest” is better served by allowing a journalist to interview a terrorist than by allowing U.S. intelligence agencies to disrupt an attack designed to inflict mass casualties is not just absurd, it is suicidal.

What might otherwise pass for judicial naivete in understanding the deadly nature of the enemy confronting the United States, however, is exposed as nothing less than an attempt to undermine the Bush Administration’s war on terror policies by Taylor’s order that the program be halted because it does not seek warrants under the Foreign Intelligence Surveillance Act (FISA) to authorize its activities. This determination flies in the face of rulings by every other federal appellate court – including that of the FISA Court of Review – to weigh the issue, all of whom have found that the president inherently possesses the constitutional authority to protect the nation by conducting warrantless communications intercepts.

Setting legal considerations aside, it is worth noting that TSP hardly sprung from the imagination of Orwell. Rather, it was carefully developed to protect civil liberties and thus very narrow in reach, only targeting phone calls coming into or out of the U.S. where one party is suspected of being affiliated with al-Qaeda, and not necessarily other Islamofascists who wish the Nation harm. If TSP’s scope were more widely understood, then, the vast majority of Americans would likely determine the public interest lies in expanding – not ending – the program.

Sadly, Taylor’s ruling is hardly surprising to those familiar with the effort by anti-war activists and their enablers in Congress and on the federal bench to systematically dismantle the Bush Administration’s war on terror policies under the guise of protecting civil liberties and the rule of law. Only two months ago, for instance, the Supreme Court’s activist wing effectively extended Geneva Convention protections to terrorists in Hamdan v. Rumsfeld.

A critical battle for the Nation’s security is being fought in U.S. courtrooms. It behooves America’s elected representatives to block the appointment of jurists who would exercise unrestrained discretion to undercut the policies developed by those very same legislators. It is, in short, time to fight back.