Domestic Surveillance

After spending some time perusing the web world, it is fair to say that yesterday's ruling against the Terrorist Surveillance Program will not withstand review.  This is not to say that Judge Taylor did not come to the correct result, but that her legal reasoning is so shoddy that it will not withstand scrutiny by higher courts.  For example, here is Orin Kerr at Volokh (with my emphasis):

I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment.

Or how about Bryan Cunningham:

We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm.

See the rest of Cunningham's excellent piece for a review of the procedural and legal abuses by Judge Taylor.

I am no 4th Amendment expert, but it seems to me that question at hand is whether the 4th Amendment even applies here.  The 4th Amendment is designed to protect our rights in regards to criminal procedure, but in this case the government is not gathering information for prosecution but rather for national defense.  Second, at least one person being monitored in TSP eavesdropping is outside the nation.  It is not clear the 4th Amendment even applies if the subject of the search is a foreigner overseas.  The case against the TSP, it seems, must be based on whether it violates the Foreign Intelligence Surveillance Act (FISA).  Then the question becomes whether FISA restricts these kinds of searches and, if it does, does it restrict the president in ways that violate his constitutional prerogatives.  On these issues I don't feel expert enough to comment, namely because I don't know the precise content of FISA as it pertains to this program.