Posted by Curt on 17 August, 2006 at 3:09 pm. 4 comments already!

So the ACLU goes to a Carter appointed judge to get the kind of ruling they wanted about the NSA wiretap program:

A federal judge ruled Thursday that the government’s warrantless surveillance program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.

The Justice Department appealed the ruling and issued a statement calling the program “an essential tool for the intelligence community in the war on terror.”

White House press secretary Tony Snow said the Bush administration “couldn’t disagree more with this ruling.”

“United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives,” he said. “The program is carefully administered and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected al-Qaida or affiliated terrorist.”

This is a joke and will be overturned. Guaranteed.

But the real funny point to this whole thing is that the London Sky Bombing plot was discovered via the same techniques that this judge just ruled unconstitutional.

How about these plots that were discovered using that same program:

1. The West Coast Airliner Plot: In mid-2002 the U.S. disrupted a plot to attack targets on the West Coast of the United States using hijacked airplanes. The plotters included at least one major operational planner involved in planning the events of 9/11.

2. The East Coast Airliner Plot: In mid-2003 the U.S. and a partner disrupted a plot to attack targets on the East Coast of the United States using hijacked commercial airplanes.

3. The Jose Padilla Plot: In May 2002 the U.S. disrupted a plot that involved blowing up apartment buildings in the United States. One of the plotters, Jose Padilla, also discussed the possibility of using a “dirty bomb” in the U.S.

4. The 2004 U.K. Urban Targets Plot: In mid-2004 the U.S. and partners disrupted a plot that involved urban targets in the United Kingdom. These plots involved using explosives against a variety of sites.

5. The 2003 Karachi Plot: In the Spring of 2003 the U.S. and a partner disrupted a plot to attack Westerners at several targets in Karachi, Pakistan.

6. The Heathrow Airport Plot: In 2003 the U.S. and several partners disrupted a plot to attack Heathrow Airport [outside London] using hijacked commercial airliners. The planning for this attack was undertaken by a major 9/11 operational figure.

7. The 2004 U.K. Plot: In the Spring of 2004 the U.S. and partners, using a combination of law enforcement and intelligence resources, disrupted a plot to conduct large-scale bombings in the U.K.

8. The 2002 Arabian Gulf Shipping Plot: In late 2002 and 2003 the U.S. and a partner nation disrupted a plot by al-Qa’ida operatives to attack ships in the Arabian Gulf.

9. The 2002 Straits of Hormuz Plot: In 2002 the U.S. and partners disrupted a plot to attack ships transiting the Straits of Hormuz.

10. The 2003 Tourist Site Plot: In 2003 the U.S. and a partner nation disrupted a plot to attack a tourist site outside the United States.

The Ohio truck driver caper? Jeffrey Battle?

As James Lileks once said:

They want us to connect the dots, but they do not want us to collect the dots. The dots should apparently just walk up and volunteer, here I am. I’m a dot. And that’s the extent of the War On Terror.

How is it that anybody in their right minds thinks its ok to allow people in our country to talk to those who want us destroyed without us listening in. Don’t tell me “they should get a warrant” because you don’t need one.

AJStrata lays it out in laymans terms:

The NSA was going through FISA since 9-11. Prior to 9-11 no intelligence information could be used to gain a surveillance warrant through FISA. In fact, the NSA would not pass any leads to the FBI-FISA regarding potential terrorists they uncovered in the US because of this restriction. The change after 9-11 was allow the FBI to get the leads and investigate. The NSA still monitors just the terrorists and anyone talking to them until a FISA warrant is passed which provides for complete surveillance of all communications on the person in the US. All that this means is there now will be NO LEADS coming out of the NSA to the FBI regarding possible terrorists in the US. That is what it means to go back to the pre 9-11 idiocy. Get here and the terrorists have more protections against detection than any other place in the world.

So it’s back to the Gorelick wall, back to the law enforcement tactics in fighting this war.

I mean this opinion didn’t even mention that time and time again the courts have ruled that the Government can search the bags and persons ot those crossing the border. The Volokh Conspiracy had a great analysis of this argument some time back:

The border search exception permits searches at the border of the United States “or its functional equivalent.” United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I’m not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don’t know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the “functional equivalent of the border,” much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn’t a slam dunk, but I think a plausible argument — and with dicta that seems to say that mode of transportation is not relevant.]

And that is just one of the arguments.

Hell, five judges from the FISA court stated that this was well within Bush’s right:

A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president’s constitutional authority to spy on suspected international agents under executive order.

“If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”

But this is what we get. A biased Carter lackey doing the bidding of the left. Amazing.

In the end it’s the liberals and the leftwing looking out for the interests of those who want us dead. They care little that we are indeed in a war for our survival against fanatical Islam. They care little whether we catch those who want us dead.

All they care about is proving Bush wrong and getting their party into power.

Country be damned.

I’ll end this post with this great comment by Protein Wisdom:

Even still, it’s amazing that we’ve reached the nuance point where only by revealing secrets can we show the the secrets in question should not be revealed, lest they damage programs meant to protect us from attacks, which only work while details of how they work remain secret.

Perhaps we can just tie stones to the NSA program, put it in a lake, and see if it floats. If it does, it is clearly unconstitutional and should be hanged. If it drowns from the weight of its own revealed legality, everyone will know for certain that it wasn’t, in fact, unconstitutional. Which, helluva lot of good that does us, sure.

But it’s the thought that counts.

UPDATE

Quite interesting what is being dug up about the first judge to disarm our country in the war on terror:

She worked as the Legislative Assistant/Detroit Office Manager to liberal U. S. Rep. Charles C. Diggs, Jr., (D-MI) from 1967-1970- who was her first husband. His district included downtown Detroit and some of the city’s poorest neighborhoods. He was the first chairman of the Congressional black Caucus. He also had trouble with the law:

He resigned from Congress in 1980, two years after being convicted of 29 counts of operating a payroll kickback scheme in his office. In 1978, he was stripped of his committee and subcommittee chairmanships. He also was censured by the House.

Anna Diggs Taylor was married to Rep. Charles C. Diggs, Jr.

Anna Diggs Taylor later married S. Martin Taylor. He also was in democratic politics and helped Coleman Young in his 1973 campaign and Jimmy Carter in his 1976 victory. She became a Federal Judge in 1979.

So, in case you are wondering… Our national security was just decided by a liberal judge closely associated (married) to a scandal-plagued Democratic Representative and America’s most liberal and worst president, Jimmy Carter.

The funny thing is that I am not worried one bit. This will be overturned quite easily.

Just glad to see how the left really feels about our country.

UPDATE II

Michelle Malkin found this tidbit of information about the Judge and where this case will ultimately end up:

Although Taylor is a liberal with Democratic roots and defended civil-rights workers in the South in the 1960s, people who know her say she will follow the law — not her politics — in deciding the case…

But even if Taylor harpoons the spying program, experts said, the decision likely would be overturned by the U.S. 6th Circuit Court of Appeals.

“Given the composition of the 6th Circuit and its previous rulings in related areas, it seems more likely to favor national security over civil liberties if that issue is squarely presented,” said Carl Tobias, a law professor at the University of Richmond in Virginia. “And that’s what this case is all about.”

UPDATE III

Powerline found this doozy about the judge:

Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Freedman, who had been assigned it through a blind draw–and who was suspected of being skeptical about affirmative action–and consolidate it with a similar suit against the university’s undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort was dropped after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed “the highly irregular” effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences.

UPDATE IV 08-18-06 0920hrs PST

Here is a comment left at Hot Air by GeorgeJ that I simply had to post here as an update. I am not a expert in Federal courts but this guys seems to know what he is talking about:

Judge Taylor’s decision is binding ONLY in her court. That is to say, no other federal judge is required to follow her ruling. Rarely are a district court trial judge’s opinions considered to apply beyond the plaintif and defendent named in the case. An identical case could be heard tomorrow by another judge and the ruling could go the other way.

The appellate court for the district hears appeals from the district courts and also adjudicates conflicting any decisions. That is the next step in this case. Usually 3 appellate judges hear an appeal. A decision of the appellate court (in this case the 6th US District) is binding upon all courts in the district. All district courts in the district are required to accept the ruling as precident. Appellate decisions may also be used as precident for cases in other US districts.

A decision of the appellate court can be reheard by all the appellate judges in the district if the losing party wishes the case to be decided “en banc” (which means by the entire bench, not just 3 judges).

An en banc decision can over rule the 3 judge one or uphold it. In either case, the decision is binding within the district, and may be cited as precedent in other districts.

The next court is the US Supreme Court. The Supreme Court is the only court actually defined in the US Constitution. The lower courts and the US Districts were created by Congress under Article 3 as “inferior” courts.

In Marbury v. Madison (1803), the Court gave itself the SOLE power to determine whether or not a law is Consitutional, while at the same time noting that the Executive Branch is specifically prohibited from enforcing laws that is unconstitution.

Specifically, the court held:

…a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

[As an interesting side note, up until shortly before the Civil War, the Supreme Court Justices rode a district court circuit and heard DISTRICT cases as trial judges.]

USSC decisions are binding on all other courts, both federal and state (thanks to the 14th Amendment).

Judge Taylor’s decision conflicts with an appellate court outside the 6th District in this issue, namely one heard by the FISA Court of Review: FISA Court of Review, In re: Sealed Case No. 02-001, which stronly upholds the President’s power to order warrantless wiretapping and searching. To wit:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Some of the other cases that the courts that have decided the issue are:

Katz v. United States, 389 U.S. 347 (1967).
United States v. United States District Court (Keith) (1972).
United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970).
United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974).
United States v. Humphrey (1978).
United States v. Buck, 548 F.2d 871 (9th Cir. 1977).
United States v. Duggan, 743 F.2d 59 (1984).

All of these explicit cite the President’s power to obtain foreign intelligence without the necessity of obtaining a warrant.

As others have noted, Judge Taylor is simply ignoring the precedents.

I can not imagine Taylor’s decison NOT being overturned by the appellate court.

Given the egregious behavior of Judge Taylor in this and other cases, methinks it is time for the House and Senate to impeach and remove Judge Anna Diggs Taylor for cause: refusing to uphold the Constitutiion as determined by the US Supreme Court.

I wholeheartedly agree that it is time Judges such as this biased piece of crapola to be removed from office. A message needs to be sent to those who would twist and turn the Constitution to fit their political belief system.

Additionally an injunction as been posted here.

Then there is this editorial by the Washington Post that slams the Judge:

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.

Judge Taylor’s opinion is certainly long on throat-clearing sound bites. “There are no hereditary Kings in America and no powers not created by the Constitution,” she thunders. She declares that “the public interest is clear, in this matter. It is the upholding of our Constitution.” And she insists that Mr. Bush has “undisputedly” violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA’s program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don’t have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

This last point by the WaPo is an important point. How she could quickly gloss over and dismiss the fact that the President has the inherent powers granted by the Constitution to conduct these wiretaps is simply amazing.

The President had a few words of his own about this ruling during the announcement of the Governments appeal:

A federal judge’s decision to declare the administration’s warrantless wiretapping program unconstitutional is wrong, President Bush said Friday.

“Those who herald this decision simply do not understand the nature of the world in which we live,” Bush told reporters at his presidential retreat in Camp David, Md.

Bush ordered the Justice Department to appeal the Thursday ruling by U.S. District Judge Anna Diggs Taylor in Detroit. Taylor ruled that the National Security Agency’s program that monitors some electronic communication inside the United States without a warrant should be halted.

The program allows the NSA to intercept telephone calls and e-mails without court approval in cases in which the government suspects a party of having links to terrorism. At least one of the people involved in the communication has to be outside of the United States.

“If Al Qaeda is calling into the United States, we want to know why they are calling,” Bush said.

[…]”We must give those whose responsibility it is to protect the United States the tools necessary to protect this country in a time of war,” Bush said.

The government is appealing to the 6th U.S. Circuit Court of Appeals in Cincinnati.

“We’re going to do everything we can do in the courts to allow this program to continue,” Attorney General Alberto Gonzales said at a news conference in Washington. The Justice Department appealed within hours of Taylor’s ruling.

[…]”We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm,” said Senate Majority Leader Bill Frist in a statement. “I encourage swift appeal by the government and quick reversal of this unfortunate decision.”

Also, AJStrata makes a point that I have been stating for quite sometime. Namely that the left has decided that impeaching Bush is more important then the war on terror:

The decades of this sewer politics has come to a head with people on the left now so obsessed with the liberal war on conservatism they cheer the dismantling of our anti-terrorism efforts and see evil conspiracies even in the thwarting of the UK bombing plot last week.

The left has decided the war on Bush, which will culminate in Impeachment hearings once they win over Congress, is more important than any little terrorist concerns. And now America can decide which path to go down. Will we face down the Islamo Fascists or will we devolve into attacking ourselves? It will be National Security verses Impeaching Bush. It is the dicussion the far left has been wanting and the one they naively think will win the day.

I disagree tho with his belief that the Democrats will win over Congress. They will not get the majority come November.

Charles at Lifelike Pundits does his own analysis.

UPDATE V 1020hrs PST

A great editorial by NRO:

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.

[…]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. Taylor, however, reasoned that the state-secrets privilege only protected the government from litigation that would require it to disclose informants, and did not apply to other kinds of intelligence collection.

In Justice Jackson’s day, it would have been taken for granted that intercepting enemy communications into and out of the United States is vital to the prosecution of a war, and that the state should be protected from having to reveal information that would compromise such efforts. For Judge Taylor, though, there are more important interests than protecting Americans from attack. There are lawyers who want to represent al Qaeda sympathizers; there are journalists who want to write about al Qaeda sympathizers; there are Muslim activist groups who want to agitate on behalf of al Qaeda sympathizers.

[…]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. U.S. privacy law consequently does not — cannot — apply. Moreover, virtually every intelligence agency in the world is pursuing al Qaeda operatives and intercepting their communications. In Judge Taylor’s perfect world, only the U.S. — the primary target of al Qaeda — would be forbidden to do so.

The more I learn about this ruling the more laughable it gets. The 6th Circuit has already ordered a stay of the ruling and will be so quickly overturned that the Democrats won’t know what hit them. Some of my commentors have stated that the Democrats will use this ruling as fodder for a impeachment, which I don’t disagree. But this ruling is so glaringly biased and full of holes they will have little success.

Other’s Blogging:


But this is what we get. A biased Carter lackey doing the bidding of the left. Amazing.

But in the end it’s the liberals and the leftwing looking out for the interests of those who want us dead. They care little that we are indeed in a war for our survival against fanatical Islam. They care little whether we catch those who want us dead.

All they care about is proving Bush wrong and getting their party into power.

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