Booman: What's Most Significant about Judge Taylor's NSA Decision?

From Booman.

Yes, I know, that opinions differ as to the soundness of Judge Taylor's decision. She's either a brave and principled jurist who finally held Bush accountable for his illegal spying program (the position of most on the left, ably expressed by Professor Stone here and Professor Tribe here) or she is a stupid, ignorant and dangerous black woman who should never have been appointed to the Federal bench by that bleeding heart idiot President Jimmy Carter (the default position of the right). We could argue for days over how well her opinion was written and her intellectual bona fides (something Mr. Heh indeedy would prefer to pontificate about endlessly), and whether or not she truly understands the threat posed by international terrorism to our very existence (i.e., the issue President Bush would love for us to ponder at length), but, as usual, Glenn Greenwald has hit on what is, by far, the most significant aspect of her decision granting summary judgment against the Federal Government:

...[A] principal reason why Judge Taylor was somewhat conclusory in her analysis of some issues, and the reason she repeatedly said that certain propositions were "undisputed," is because the Bush administration either failed or chose not to dispute them. Specifically, the Justice Department was so intent on telling the Judge that she had no right to even rule on these issues (because the NSA program is a "state secret," the legality of which the court cannot adjudicate without damaging national security and/or because the plaintiffs lack "standing"), that it basically chose not to address the merits of the plaintiffs' case at all.

...[T]he Bush administration's refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU's factual claims as undisputed for purposes of deciding the motion.

[...I]n plain English...

The DOJ said to the judge: "You can't decide this summary judgment motion because the NSA program is so super-secret and important that we can't let you decide whether it violates any laws or not."

The Judge replied: "Bullshit. I'm not going to disregard the ACLU's motion just because you claim it is so super secret important. Come back with a proper response as to why I shouldn't rule in favor of the ACLU and find the NSA spy program illegal."

So the DOJ came back with its response to the ACLU's summary judgment motion which said (in effect): "Dear stupid Judge, we aren't going to tell you why the ACLU is wrong about its various claims that the NSA spy program is illegal and violates federal law and the US Constitution because you don't have the right to decide if its illegal or not, because its so super duper secret. So there!"

And then the Judge replied to the DOJ: Ok smarty pants. In that case, you lose, the ACLU wins and I am enjoining you, your fearless leader (who thinks he's a King or a Dictator or some other kind of blasphomous deity) and anyone else in the Federal Government from continuing to spy on Americans under this crappy warrantless surveillance program. How do you like them apples?"

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