A judge's foreign policy.

THE courts of the United States once understood 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 1948, 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 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 shown how far we have strayed from Justice Jackson's wisdom.

The TSP is a classic signals-intelligence initiative of the type that has been central to every successful American war effort. Under the program, the NSA monitors international communications, including those into and out of the United States, when there is a reasonable basis to believe that an al-Qaeda operative is on at least one end of the conversation. Americans broadly support the TSP. But ever since the end of 2005--when government officials illegally disclosed its existence to the New York Times, which promptly compromised it--it has come under legal assault from the anti-American Left, civil-liberties extremists, and Muslim activists.

To block litigation by this coalition from providing the enemy with incalculably valuable intelligence, the administration invoked the state-secrets privilege, a 150-year-old legal tool that allows the federal government to dismiss cases that might compromise national-defense information. This should have been the end of the story. But Taylor reached the dubious conclusion that the state-secrets privilege applies only to litigation that would require the government to disclose informants, and offers no protection to other kinds of intelligence collection.

She also found that the plaintiffs in the case, mainly attorneys and journalists, had standing to sue. Standing rules require a plaintiff to establish that he has suffered a unique, concrete injury that can be redressed by court action. They are designed to ensure that matters of general rather than individual concern are decided by the political branches accountable to the public, not by the courts. Yet Taylor found, in flat contravention of Supreme Court precedent, that the plaintiffs were harmed because both they and the al-Qaeda suspects they wished to contact had been "chilled" from communicating. This reasoning is ludicrous. Americans have no reasonable expectation of privacy when seeking to communicate with persons outside the United States, and privacy law consequently does not--cannot--apply.

In short, Taylor ran roughshod over rules that should have kept her from deciding the case in the first place. But decide it she did, finding that the TSP violates the separation of powers and the Fourth Amendment because it does not seek judicial warrants under the Foreign Intelligence Surveillance Act to authorize its activities. She ruled thus notwithstanding that every federal appellate court to consider the issue, including the Foreign Intelligence Surveillance Court of Review itself, had previously ruled that the president has inherent constitutional authority to conduct warrantless wiretapping to protect the nation from external threats.

In disregarding this consensus, Taylor effectively claimed that the only official elected by all Americans--an official whose primary duty happens to be safeguarding the security of the United States--is powerless to order surveillance against an enemy in wartime unless a federal judge says he can. The Framers would be appalled. And so should we.