Via the NYT (Experts Fault Reasoning in Surveillance Decision - New York Times):

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

The piece is full of quotes from legal scholars and commentators of various ideological stripes who believe the wiretap program to be illegal, but nonethelss find the ruling itself to be worthy of scorn.

For example:

“It’s hard to exaggerate how bad it is,” said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor’s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2024 that said it took for granted that Congress “could not encroach on the president’s constitutional power” to conduct warrantless surveillance to obtain foreign intelligence.

The opinion also failed to note Hamdan:

The decision also failed to cite a Supreme Court decision in June helpful to the plaintiffs, a group of journalists, scholars, lawyers and nonprofit organizations. The decision, Hamdan v. Rumsfeld, struck down the administration’s plans to try prisoners at Guantánamo Bay, Cuba, as war criminals. It was widely interpreted as a rebuke to the administration’s expansive conception of executive power.

“After Hamdan,” Professor Sunstein said, “this program is not easy to defend.”

What effect the poor quality of the opinion will have on appeal, however, is quite unclear.

Still, it is unfortunate that such a major and important issue was so thoroughly botched by the Judge in this case.