A story in today’s NYT focuses on the challenging position the Obama administration is now in, given Wednesday’s ruling by a federal judge on the warrantless surveillance issue.

Challenging or not for the administration, reader “Jason Arvak” emailed yesterday, arguing that the judge’s ruling “smells like a political or emotional decision … not genuine compliance with the legal standard required.” He explains:

The significance of Judge Walker’s holding may be somewhat less than it appears on its face. While Walker casts his ruling in strong terms and condemns the government, the “procedural posture” of his ruling is unusual — it is summary judgment (judgment before trial) in favor of a Plaintiff in a cause of action that strongly challenges a major power of the Executive Branch. To make summary judgment in favor of the side that bears the burden of proof at trial is highly unusual and normally requires an exceedingly high standard. It is far from clear that Judge Walker applied such a standard. It rather appears that Judge Walker simply indulged either in his emotional dislike for the government’s behavior in this case or in his desire to accelerate the case on its inevitable path to the Supreme Court.

In either case, it is highly unlikely that such a ruling would be allowed to stand on appeal. At a minimum, the case will now proceed on its lengthy path to the Supreme Court. And appellate courts will not grant much deference to a ruling made in such a context. Instead, they will probably review Judge Walker’s determinations de novo, as if from the beginning. And while the Supreme Court has been suspicious of dramatic examples of executive overreaching in detainee cases, I do not think it is at all clear that the Court will be eager to slap shackles on the ability of the federal government to monitor international communications for the purpose of merely gathering intelligence.

I think in the end, Judge Walker’s ruling will be overturned or at least dramatically narrowed so as to preserve the government’s ability to gather intelligence notwithstanding the no-compromises extremism of radical civil libertarians citing purely abstract harms. The most likely path towards a moderate compromise would be to allow the government to continue to monitor international communications without a burdensome warrant requirement, but to restrict the use of information thus gathered to purely national security uses, rendering it inadmissible in criminal proceedings.

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