Stone Praises Judge Taylor

An Independent and Fearless Judiciary
Geoffrey R. Stone
Chicago Tribune
August 24, 2006

On Aug. 17, federal Judge Anna Diggs Taylor held that the National Security Agency's domestic surveillance program violates the Foreign Intelligence Surveillance Act of 1978 and the Constitution.

Although I agree wholeheartedly with Taylor's conclusion, I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the president of the United States asserts is essential to national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.

In American Civil Liberties Union vs. National Security Agency, it would have been easy for Taylor to evade her responsibility. She could have ducked the merits of the case by endorsing the government's contention that the case should be dismissed either because of the state secrets privilege or because the plaintiffs lacked standing. Many judges, I fear, would have taken that route.

ACLU vs. NSA was a civil action brought by a broad range of individuals and organizations alleging that the NSA surveillance program infringes upon their legal and constitutional rights. The government argued that the case should be dismissed because the government would have to reveal state secrets to defend the legality of the program. This argument is puzzling. It is analogous to a defendant in a civil action demanding dismissal of the case because in order to prove a defense he would have to forgo the attorney-client or doctor-patient privilege. But the privilege gives the defendant the right to prevent the plaintiff from demanding the privileged information. It does not give the defendant the right to have the case dismissed. In any event, this question was not presented in ACLU vs. NSA because, as Taylor held, the government failed to demonstrate that any state secrets needed to be disclosed for it to defend the legality of the program.

The standing argument is similarly puzzling. The government maintained that the plaintiffs lacked standing to challenge the legality of the NSA program because they could not prove that they had personally been subjected to unlawful surveillance. Why couldn't they prove this? Because the government insisted that the identities of the victims of the program were a state secret. On this view of the law, no one would have standing to challenge an unconstitutional and unlawful government program so long as the government keeps secret the identities of the victims. Taylor rightly rejected the standing argument in ACLU vs. NSA. Sometimes, the law is not an ass.

Of course, the government will appeal Taylor's decision. What will happen on appeal is anyone's guess. I will venture a partial prediction: If the appellate judges do not hide behind the standing and state secrets arguments, they will uphold Taylor's ruling. On the merits, the illegality of the NSA program is simply too clear to elide.

Interestingly, critics of the decision have now noted that Taylor is a member of the board of a local organization that has made grants to the ACLU. The implication is that, for this reason, she should have recused herself from the case, or at least disclosed her "conflict of interest." This is downright silly. For the same reasons that I disagreed with those who attacked Supreme Court Justices Samuel Alito for a more serious conflict and Antonin Scalia for hearing a case involving his duck-hunting partner (Vice President Dick Cheney), I find this accusation completely over the top. Judges live in the real world. These are not the sorts of conflicts that undermine their integrity.

Who is Judge Taylor, anyway? Knowing little about her, I decided to check her out. She is an African-American graduate of Yale Law School (1957). In 1964, she spent the summer ("Freedom Summer") in Mississippi to help provide legal services for civil rights activists. She arrived in Mississippi on the very day that three young civil rights workers (James Chaney, Andrew Goodman and Michael Schwerner) disappeared in Philadelphia, Miss. When she and several other attorneys went to the sheriff's office to inquire about the disappearance, they were surrounded by a mob of hostile whites who hurled racial epithets at Taylor and her companions. Forty-four days later, the bodies of Chaney, Goodman and Schwerner were found at Olen Barrage's Old Jolly Farm, 6 miles northeast of Philadelphia. Each of the civil rights workers had been shot to death. Four decades after the murders, in June 2005, Edgar Ray Killen, a local minister and member of the Klan, was finally brought to justice as one of the conspirators.

After her experience in Mississippi, Anna Diggs Taylor had a distinguished legal career in Detroit, where she served as an assistant U.S. attorney, special counsel to the city and a private practitioner. Among her many achievements, she won a landmark anti-discrimination case. In 1979 President Jimmy Carter appointed her a United States district judge.

Judges are who they are. They strive to follow the law, but personal experience and character matter. I have little doubt that Taylor's willingness to face the merits in ACLU vs. NSA was in part the consequence of who she is as a person. Her decision took personal courage and a genuine commitment to the rule of law--the same kind of courage and commitment she manifested 40 years ago during Freedom Summer.

We need more judges cut from such cloth.

Geoffrey R. Stone is a professor of law at the University of Chicago and the author of Perilous Times: Free Speech in Wartime.

Copyright 2006 Chicago Tribune Company

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Geoffrey R. Stone