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By Marion Edwyn Harrison, Esq.
August 23, 2006
How extraneously absurd can one get? Do we really need some judge to pontificate in an opinion (even if technically mere dictum - meaning not part of the holding) that: “There are no hereditary Kings in America and no powers not created by the Constitution.” Ignoring the incorrect capitalization and grammar, one reads this sentence at page 40 of 43 pages, which pages, especially in relation to the norm for judicial opinions, border on rant. The document is the Memorandum Opinion of Senior Judge Anna Diggs Taylor, United States District Court, Eastern District of Michigan, Southern Division, meaning Detroit. (A “senior judge” is retired but continues full-time or part-time to sit.)
Judge Taylor, a civil-rights activist in Mississippi and elsewhere, married (and divorced) the late Detroit Congressman Charles C. Diggs, Jr., moved from Washington, D. C. to Detroit in 1960, in 1979 was appointed to the Federal Bench by President Jimmy Carter. She has rendered as many controversial opinions over 27 years as any Federal trial judge whose name comes to mind. Whether any other opinion has been so poorly reasoned and so replete with errors of grammar, syntax and inconsistency is beyond the reach of this short column - a surprising phenomenon in that Judge Taylor is well educated.
Never mind that the Taylor decision if sustained upon appeal would nullify the (arguably minimal) efforts of the National Security Agency (“NSA”) to learn of potential terrorist attacks upon America and Americans. For example, as recited in the Taylor Opinion, the decision is designed to protect the privacy of two attorneys’ international telephone and e-mail contacts “with individuals who have alleged connections with terrorist organizations . . .” and of a journalist’s “international communications with sources who [sic] are suspected of helping the insurgents in Iraq.” (Opinion, foonote 7, page 13). The Taylor and American Civil Liberties Union (“ACLU”) mentality fully exalts the pre-emptive importance of privacy when Americans are, or well might be, furthering the cause of terrorism.
The United States Court of Appeals for the 6th Circuit and ultimately probably the Supreme Court of the United States will adjudicate the law. Few, if any, objective scholars appear to take seriously the Taylor Opinion, even were the holding to be sustained upon other grounds. As THE WASHINGTON POST, never accused as some rightist rag, noted, if somewhat condescendingly, “. . . Legal scholars said Taylor’s decision is likely to receive heavy scrutiny [upon appeal] and some criticized her ruling as poorly reasoned.” THE WALL STREET JOURNAL editorial is more scathing.
There is legislation pending in Congress which would address the principal alleged defect in the international anti-terrorist surveillance activity - asserted to be its lack of adequate statutory judicial-review procedures.
If the gentle reader would like a few superficial comments upon the Taylor Opinion, perhaps to wonder if emotion and frenzy overcame English grammar and syntax and factual accuracy, a few follow. Because this column is not a law-review note or similar publication, let’s forego legal analysis - but watch the last two paragraphs.
The first sentence: “This is a challenge to the legality of a secret program . . .undisputedly inaugurated . . .” Undisputedly? Then why litigation? At page 5, “ . . . the District of Columbia Circuit Court . . .” Slight problem: No such court. There is the District of Columbia Superior Court and the Court of Appeals. The reference is meant to be the United States Court of Appeals for the District of Columbia Circuit, one of twelve geographic Federal circuits, sometimes cited in abbreviated language if first correctly cited. At page 6 again appears the incorrect language. Thereafter, references to Federal courts are inconsistent. On page 11 we learn that not merely the Army, Air Force and Marines have major generals but, gee whiz, also the National Security Agency - to wit, “NSA Major General Richard J. Quirk . . .” On page 2 we see reference to “this Administration” which by page 14 becomes the “Bush Administration . . .” Enough of this pedantry. Let’s jump to page 43, the last, only to find a quotation: “As Justice Warren wrote . . .” Slight problem: There never was a Justice Warren; there was Chief Justice Earl Warren. The Opinion does not downgrade Chief Justices Fred M. Vinson or William H. Rehnquist but a reader seeking consistency or accuracy had better skip the Taylor Opinion.
The Opinion also tells us several times that “the President is created by the Constitution . . .” Most people would have thought that parents create the baby who becomes President and that the Constitution created the Office of the President (Article II, § 1) or Presidency, not the President.
Never underestimate the learning ACLU litigation brings us - even biology.
Meantime, vastly more serious and more dangerous to national and individual security, don’t let it be a surprise that an Islamic organization is one of the plaintiffs in the case.
Perhaps it also would not be a surprise that Judge Taylor may have a conflict of interest. According to its website, she is Trustee and Secretary of the Community Foundation of Southeastern Michigan, which donated funds to the ACLU of Michigan, another plaintiff in the case.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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