The Times vs. The Times on Anti-Bush NSA Surveillance Ruling

Was the anti-Bush surveillance ruling "a careful, thoroughly grounded opinion" or did it "use[d] circular reasoning" and "substitute passion for analysis"?

Shocking absolutely no one, the New York Times editorial page last Fridaycelebrated Judge Anna Diggs Taylor's ruling that declared Bush's terrorist surveillance program unconstitutional, under the headline "Ruling for the Law."

The editorial absurdly claimed: "The ruling eviscerated the absurd notion on which the administration's arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan."

And later: But for now, with a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do."

By contrast, the Washington Post editorial page savaged the ruling under the headline "A Judicial Misfire."

"Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work - that is, as a guide to what the law requires and how it either restrains or permits the NSA's program - her opinion will not be helpful."

Butthe very next morning, Times legal reporter Adam Liptak swiped the champagne with a front page story entitled "Many Experts Fault Reasoning Of Judge in Surveillance Ruling."

Liptak minces no words, stating in his lead: "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."

By contrast, in the same edition reporter Eric Lichtblau claimed : "But Democrats and some legal scholars said they regarded the decision by Judge Taylor, who was appointed by President Jimmy Carter, as an important affirmation of the separation of powers and limits on presidential authority even in a time of war."

Yet later Lichtblau seems to contradict himself: "In a view echoed by other legal experts interviewed Friday, Peter M. Shane, a law professor at Ohio State University who specializes in separation of powers issues, said he agreed with Judge Taylor's ultimate determination but took issue with elements of her legal analysis, including her reading of constitutional law.

"'I agree very strongly that the president's national security powers are not sufficient in this area to defy Congress's express determination,' Mr. Shane said. 'I just wish she had written it more carefully.'"

Lichtblau doesn't quote any "legal scholar" who actually defend the opinion's reasoning.