Section eight is about whether or not the AUMF, as the later legislative act, supercedes FISA. The judge quotes the AUMF, and says that the government argues that through this it was given the authority to conduct the program "in violation of both FISA and the Constitution." That language is the first tip-off to the judge's world-view. The judge sees the AUMF as being level and equal with FISA, and thus begins by saying FISA is "violated," then seeks to see if the violation is justified. The accurate analysis would be to see if FISA was superceded, because FISA would not apply at all. (Whether the program violates the Constitution - and it doesn't - I will discuss in part 3. Or you could simply read today's WSJ op-ed. Or before becoming a Federal judge you could actually read one of the seminal cases on wartime activities. But I digress.)

The judge then says something that makes me wonder what planet she's on. Indeed, this is the absolute craziest thing I have read in a legal opinion after three years of reading them. At the bottom of page 37 (the underlining is mine):

"[T]his court must note that the AUMF says nothing whatsoever of intelligence or surveillance."

Digest that for a moment. The Congress says go to war, but do not use intelligence in this war! Use all necessary and appropriate force to fight a war, except for intelligence! For the first time in our nation's history, we are to act militarily without using intelligence-gathering capabilities! Against an enemy in civilian clothing that constantly seeks to hide its presence!

According to this statement, when we train a satellite on Shahi-kot, we're going beyond what the Congress authorized.

She continues on page 38 to argue that FISA and other previous statutory regimes still control, even after the AUMF, and since they are equal in her eyes, the common rule of statutory interpretation that the specific governs the general still applies. Except that this rule only applies when both legislative actions are pointed at accomplishing the same goal. (The case she cites from is here.)

The only way I can possibly understand how the judge thinks FISA and the AUMF are pointed at accomplishing the same goal is to recall soemthing many right-wing pundits have said, which is that many on the left see terrorism as a law-enforcement issue rather than a military issue. This would also explain why she thinks FISA is not superceded by the AUMF, and why she thinks you can fight a war without intelligence. To her this is not a war. It's another version of President Clinton's promise of 100,000 new police officers on the street.

In the remaining part of section eight she misapplies Hamdi, which for reasons of brevity (brevity, in a legal paper - it is to laugh) I plan to include in my next post on this where I go over section nine of her ruling.

NOW, to turn things back a bit, I do have to say that section two is likely the strongest part of the ruling. It begins on page 3, and discusses the privilege of the govenrment to refuse to answer allegations, discovery requests, or other attempts by a Plaintiff to acquire ifnormation whose exposure could be dangerous to national security. Before you read it, look at Federal Rule of Evidence 501 regarding privileges. Pretty general stuff, isn't it? There is no hard and fast rule because when the Federal Rules of Evidence were being made the Congress desired flexibility with regard to privileges, and therefore they left the laws of what privileges work when and how up to the courts, which of course emans either up to the USSC or the various appellatte courts if the USSC should choose to not review a case. (The USSC is petitioned to review almost 75,000 cases from the Federal Circuit courts alone every year, plus however many are petitioned from the state supreme courts, and the USSC only handles 80-90 cases a year.)

As a result, it should be no surprise that Judge Taylor spends about 12 pages citing case after case, and discussing whether they apply or not. As this post is already very long, and my wife just came home with the kids, I will have to update this posting - hopefully later today.