Once upon a time, the courts of the United States acted in the interests of the United States. They knew that international affairs, the conduct of war, and the protection of Americans from foreign threats stood far beyond the judicial ken. As Supreme Court justice Robert Jackson wrote in 1936, sensitive matters of foreign policy and national security involve “decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”
Enter Anna Diggs Taylor, chief judge of the federal district court in Detroit. She has just purported to find unconstitutional the Bush administration’s Terrorist Surveillance Program (TSP) — an early-warning system crucial to protecting the nation from attack. In so doing, she has become the latest jurist to illustrate how far we have strayed from Justice Jackson’s wisdom.
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