Judge Finds NSA Program Unconstitutional
The Associated Press reports via the WaPo:
DETROIT — A federal judge decision’s to strike down President Bush’s warrantless surveillance program was the first ruling over its legality, but surely not the last.
U.S. District Judge Anna Diggs Taylor in Detroit ruled Thursday that the program violated the rights to free speech and privacy, as well as the separation of powers enshrined in the Constitution
Back in January of 2006, the ACLU filed a lawsuit against the NSA wire tapping program. The ACLU’s lawsuit was on behalf of journalists, lawyers, and others- who said that the NSA program made it hard to do their jobs. I can’t see as how that would be correct; unless they were in contact with terrorists.
The ACLU’s contention was that overseas contacts are likely to be targets of the program. People were outraged that a government program would monitor their phone calls and e-mails. What people seem to forget to mention or include in their diatribes about the NSA wiretapping program is that the phone calls and emails that are monitored to or from the U.S. are those that involve people the government suspects have terrorist links.
Kind of like that inconvenient second part in the establishment clause, isn’t it?
But with the recent publications of Pallywood type photographs coming out of the MSM, pictures of journalists having Thanksgiving with the Taliban, etc., it would seem as though what they’re really objecting to is getting caught red-handed with the enemy and having to pay some type of a price for it or be held accountable for aiding and abetting the enemy.
So what’s the problem? I think they should be held accountable! Part of their feigned objection is that the 1978 Foreign Intelligence Surveillance Act already gave our government enough tools to monitor suspected terrorists, because it set up a ’secret court’ to grant warrants for these types of surveillance.
But…the government argued that the NSA program is well within the president’s powers and said proving that would require revealing state secrets. But that’s not enough for the ACLU.
From the WaPo:
The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule. The administration has decried leaks that led to a New York Times report about the existence of the program last year.
Riiight. That was when most of us stood up in disagreement with the ACLU and particularly when the New York Slimes let this out–because it’s letting the enemy know what we’re doing to combat them. It isn’t bad enough that we have the ACLU here within our country fighting against everything we stand for and legislating their agenda through the judiciary branch; but we have the New York Times joining them in aiding and abetting the enemy.
Taylor, a Carter appointee, said the government appeared to argue that the program is beyond judicial scrutiny.
“It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote. “The three separate branches of government were developed as a check and balance for one another.”
Oh bologna. It was never the intent of the framers for judges to ignore the law and the intent of the separation of powers and allow bloviating baffoons to legislate from the bench. There’s a whole branch of government for that and it’s supposed to represent the people: It’s called the Legislative BRANCH.
Problem is, too many people don’t even know how the government is supposed to operate because they don’t learn about how our government is even set up.
That’s obvious when you read the comments from people who think the ACLU is standing up for peoples’ civil rights. All you have to do is do a google search for recent cases having to do with civil rights, and you can see that the majority of people are having those rights stripped away from them in the name of political correctness.
Any way you look at it, this ruling is disgusting. I can’t find a direct link to this editorial that is apparently up at the WaPo, but the following was sent to me through email. Isn’t it interesting what opinions actually get the air play and which are hidden below the fold?
President Taylor
A federal judge rewrites the Constitution on war powers.Friday, August 18, 2006 12:01 a.m. EDT
In our current era of polarized politics, it was probably inevitable that some judge somewhere would strike down the National Security Agency’s warrantless wiretaps as unconstitutional. The temptations to be hailed as Civil Libertarian of the Year are just too great.
So we suppose a kind of congratulations are due to federal Judge Anna Diggs Taylor, who won her 10 minutes of fame yesterday for declaring that President Bush had taken upon himself “the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.” Oh, and by the way, the Jimmy Carter appointee also avers that “there are no hereditary Kings in America.” In case you hadn’t heard.
The 44-page decision, which concludes by issuing a permanent injunction against the wiretapping program, will doubtless occasion much rejoicing among the “imperial Presidency” crowd. That may have been part of her point, as, early in the decision, Judge Taylor refers with apparent derision to “the war on terror of this Administration.”
“of this Administration?” Puhleez.
We can at least be grateful that President Taylor’s judgment won’t be the last on the matter. The Justice Department immediately announced it will appeal and the injunction has been stayed for the moment. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death.
So let’s set aside the judge’s Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The “unreasonable search and seizure” and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King’s political opponents under general and often secret warrants.
Judge Taylor sees an analogy here, but she manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found.
As for the First Amendment, Judge Taylor asserts that the plaintiffs–a group that includes the ACLU and assorted academics, lawyers and journalists who believe their conversations may have been tapped but almost surely weren’t–had their free-speech rights violated because al Qaeda types are now afraid to speak to them on the phone.But the wiretapping program is not preventing anyone from speaking on the phone. Quite the opposite–if the terrorists stopped talking on the phone, there would be nothing to wiretap. Perhaps the plaintiffs should have sued the New York Times, as it was that paper’s disclosure of the program that created the “chill” on “free speech” that Judge Taylor laments.
The real nub of this dispute is the Constitution’s idea of “inherent powers,” although those two pages of her decision are mostly devoted to pouring scorn on the very concept. But jurists of far greater distinction than Judge Taylor have recognized that the Constitution vests the bulk of war-making power with the President. It did so, as the Founders explained in the Federalist Papers, for reasons of energy, dispatch, secrecy and accountability.
Before yesterday, no American court had ever ruled that the President lacked the Constitutional right to conduct such wiretaps. President Carter signed the 1978 FISA statute that established the special court to approve domestic wiretaps even as his Administration declared it was not ceding any Constitutional power. And in the 2002 decision In Re: Sealed Case, the very panel of appellate judges that hears FISA appeals noted that in a previous FISA case (U.S. v. Truong), a federal “court, 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 couldn’t find Judge Taylor’s attempt to grapple with those precedents, perhaps because they’d have interfered with the lilt of her purple prose.
Unlike Judge Taylor, Presidents are accountable to the voters for their war-making decisions, as the current White House occupant has discovered. Judge Taylor can write her opinion and pose for the cameras–and no one can hold her accountable for any Americans who might die as a result.
Jack Lewis has more on Judge Taylor, who has chosen to ignore the letter of the law before.
TITLE: Judge that ruled against NSA has history of ignoring the law
SUMMARY: It should come as no surprise that the judge who ruled against the NSA’s wiretapping program has a history of ignoring the law when it suits her own person political agenda.
Judge that ruled against NSA has history of ignoring the law
From Opinion and Order by Judge Bernard A. Friedman Denying Defendant’s Motion to Designate Gratz v. Michigan and Grutter v. Michigan as Companion Cases, August 17, 1998…
Something is terribly wrong with an ideology that would make it ‘constitutional’ for terrorists to conspire to kill us all. There’s something even more wrong about the ACLU which cheers them on for doing it.
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Posted by cao on August 18, 2006 7:46 pm
» Filed Under ACLU, Activist Judges
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8 Responses to “Judge Finds NSA Program Unconstitutional”
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Syndicate Me
The Judge needs to read the U.S. Constitution. First is applies only to the citizens of the United States and their posterity. Second it applies only within the jurisdiction of the United States. In any case when either one side of the conversation is a non citizen or the call exits the United States the call is not protected by the Fourth Amendment.
On the other hand Congress has the right to legislate the conduct of the executive and judicial branch as well as the treatment of non citizens. They did make a wire tap law that the administration ignored. The administration could have contacted Congress to change the law. They chose not to. That may because of the undemocratic obstructionism that is practiced so much in the Senate.
Some people say that the terrorists a rre or SHOULD BE constitutionally allowed to conspire to kill us. That cannot be right.
“Some people say that the terrorists a rre or SHOULD BE constitutionally allowed to conspire to kill us.”
Who has said that, Cao? Name them, and provide a source for the quotation.
“In any case when either one side of the conversation is a non citizen or the call exits the United States the call is not protected by the Fourth Amendment.”
Please cite the supporting case law for your assertion.
Meatbrain,
Statue law has jurisdiction over case law in all cases as the U.S. Constitution clearly states that all federal legislation must be passed by Congress and the federal judiciary can merely judge according to that law. So case law is unconstitutional unless you view it as orders (equivalent to military orders) from the high judges to the lower judges in which case it does not effect anyone outside the federal judicial branch and can be disobeyed by a federal judge if he or she believes it an illegal decision.
The U.S. Constitution states its purpose in the preamble. One of those purposes is to insure the blessings of liberty to Ourselves and Our Posterity. Non citizens do not qualify as ourselves or our posterity. The Dread Scott v. Sanford decision states the same thing.
The U.S. Constitution states the jurisdiction of Congress in Article 1 Section 8. Several amendments expand the governments power but not allows Congress or the government in general to act on cases that occur outside the jurisdiction of the United States. That is the jurisdiction of others and becomes a foreign affairs issue. The situation in Italy over the CIA rendition program is an example.
Congress does have the authority to regulate the conduct of the executive branch is these situations.
“So case law is unconstitutional unless you view it as orders (equivalent to military orders) from the high judges to the lower judges in which case it does not effect anyone outside the federal judicial branch and can be disobeyed by a federal judge if he or she believes it an illegal decision.”
Nice dodge. Where is the legal support for your claim that a communication is not protected for the Fourth Amendment simply because “either one side of the conversation is a non citizen or the call exits the United States”?
“Non citizens do not qualify as ourselves or our posterity.”
You have a firm grasp of the obvious. Where is the legal support for your claim that my Fourth Amendment protections evaporate when I am speaking to a non-citizen?
“You have a firm grasp of the obvious. Where is the legal support for your claim that my Fourth Amendment protections evaporate when I am speaking to a non-citizen?”
The government can not legally bug your phone but they can bug that of the non citizen.
“The government can not legally bug your phone…”
That is clearly wrong, Kerwin, and I would suggest you study the facts before you make such a statement again. The government can legally bug my phone under several statutes, of which FISA is one.
The wiretaps carried out by the Bush administration were performed in direct violation of the requirements of FISA. No one suggests that the wiretaps be ended entirely; they are clearly an important tactic in combatting terrorist plots. What is required is that these wiretaps be performed within the requirements of the law.