A judge's foreign policy.(AT WAR III)

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 ...