Carter Appointed Judge Strikes Down NSA Program - Merged w/ I hate to say It

[red states rule]

It is no surprise the libs would allow the terrorists to plot their attacks in private, just so they can oppose Pres Bush and fire up their rabid base.

The Courts are trying to control of Commander In Chief duties, and this insane decision will not stand for long.

Then the rabid left will have something else to howl about

 

[KarlMarx]

Again, the judge has not diminished, in any way, the administration's right to get surveillance information. In all the time the FISA Court has operated, only one warrant has been denied, to the best of my knowledge.

I think that making warantless searches unconstitutional even when the persons involved are not to be tried or convicted of any crime does indeed diminish the Executive Branch's ability to defend the country.

Actually, these people aren't anything until they've been convicted. Where you and I differ is you assume this administration is only surveilling dangerous terrorists and their buddies.... just as you assume dangerous terrorists and their buddies are the only ones holed up in Gitmo. I don't trust government to make good decisions. I don't trust the honesty of government. I don't want any government, even one I agree with (and I sure as heck don't agree with the admin we have now) having unlimited power for which they are accountable to no one. Think on it....would you want Hillary to be able to listen in on whoever she wanted? And would you trust her to only listen in on terrorists' calls?

If a person is captured by our the military on a battle field in a foreign land while involved in hostilities against our forces, he doesn't need to be read his rights. He doesn't need to be convicted or tried, he's a prisoner of war. It seems to me that you assume that criminal process applies to such circumstances, they don't. Yes, actually I do assume that dangerous terrorists are holed in Gitmo. If Bush wanted to imprison his political enemies, he'd have imprisoned most of Hollywood, the NYT and most of the news media. Again, we are at war, the Executive Branch has the power to wage it, collect surveillance in order to make military decisions.

I have to ask how Congress and the judicial branch why get involved in this. Is it actually out of a concern for protecting our rights or wresting Constitutionally granted power from the Executive Branch?

The FISA Courts are secret. Any surveillance can be started BEFORE seeking any warrrant, so there is no prejudice and no delay. They won't miss valuable information waiting for some judge to make a decision on a warrant (which, btw, under normal circumstances, is usually given with just a phone call). I would also point out that exigent circumstances, hot pursuit and items in plain sight are AWAYS exempt from the requirement of a warrant, so the arguments that investigations will be slowed down is specious.

The only thing FISA does is require acccountability.... to someone.... at some point.

Ask yourself why that accountability troubles the administration so much if they can proceed without a warrant anyway.

And one last question to think on...if what we're fighting for is our democratic way of life.... and we allow the spectre of terror to destroy that way of life and our freedoms.... then what is it we're fighting for?

Since you brought up the subject of accountability. I'd like to ask the same questions about the Clinton White House. Why wasn't the standard of conduct expected to be as high? No one on the Left seemed to be worried about it then. Yet, Clinton was abusing his powers, he had political opponents' tax returns audited, he had FBI files of political opponents in his possession and ignored court orders to return them for months. Wasn't that an abuse of power?

 

[LuvRPgrl]

Again, the judge has not diminished, in any way, the administration's right to get surveillance information. In all the time the FISA Court has operated, only one warrant has been denied, to the best of my knowledge.?

It does diminish the right AND ABILITY to get information. Warrants can only be requested for specific phones, whereas the wiretapping includes searching for particular words or phrases that a computer can be programmed to pick up. For example, if the phrase, we will set the bomb off, is used regularly by someone, then they will hone in on that signal and monitor it.

And one last question to think on...if what we're fighting for is our democratic way of life.... and we allow the spectre of terror to destroy that way of life and our freedoms.... then what is it we're fighting for?

Typical left wing propaganda.

SPECTRE of terror?

WTF??? You think 9/11 was merely a spectre???

 

[Annie]

Oh my, Jillian. Seems some of those that even agree with the idea that NSA monitoring may be wrong, can't get there through this judge's reasoning:

From the VERY BIASED NY TIMES:

http://www.nytimes.com/2006/08/19/w...&oref=login&partner=homepage&pagewanted=print

August 19, 2006
Experts Fault Reasoning in Surveillance Decision
By ADAM LIPTAK

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

The main problems, scholars sympathetic to the decision’s bottom line said, is that the judge, Anna Diggs Taylor, relied on novel and questionable constitutional arguments when more straightforward statutory ones were available.

She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.

That ruling is “rather innovative” and “not a particularly good argument,” Jack Balkin, a law professor at Yale who believes the program is illegal, wrote on his Web log.

Judge Taylor also ruled that the program violated the Fourth Amendment’s ban on unreasonable searches and seizures. But scholars said she failed to take account of the so-called “special needs” exception to the amendment’s requirement that the government obtain a warrant before engaging in some surveillance unrelated to routine law enforcement. “It’s just a few pages of general ruminations about the Fourth Amendment, much of it incomplete and some of it simply incorrect,” Orin S. Kerr, a law professor at George Washington University who believes the administration’s legal justifications for the program are weak, said of Judge Taylor’s Fourth Amendment analysis on a Web log called the Volokh Conspiracy.

Judge Taylor gave less attention to the more modest statutory argument that has been widely advanced by critics of the program. They say that it violates a 1978 law requiring warrants from a secret court and that neither a 2001 Congressional authorization to use military force against Al Qaeda nor the president’s constitutional authority allowed the administration to ignore the law. A recent Supreme Court decision strengthened that argument. Judge Taylor did not cite it.

Some scholars speculated that Judge Taylor, of the Federal District Court in Detroit, may have rushed her decision lest the case be consolidated with several others now pending in federal court in San Francisco or moved to a specialized court in Washington as contemplated by pending legislation. Judge Taylor heard the last set of arguments in the case a little more than a month ago.

The decision has been appealed, and legal scholars said Judge Taylor had done the American Civil Liberties Union, which represents the plaintiffs, few favors beyond handing it a victory. On the other hand, they added, the appeals court is bound to examine the legal arguments in the case afresh in any event.

Indeed, Cass R. Sunstein, a law professor at the University of Chicago, predicted that the plaintiffs would win the case on appeal, but not for the reasons Judge Taylor gave.

“The chances that the Bush program will be upheld are not none, but slim,” Professor Sunstein said. “The chances that this judge’s analysis will be adopted are also slim.”

Eugene Volokh, a law professor at the University of California, Los Angeles, who presides over the Volokh Conspiracy Web log and says he is skeptical of the legality of the wiretapping program, called the decision “not just ill-reasoned, but rhetorically ill-conceived.”

“If I were the A.C.L.U.,” Professor Volokh said, “I would rather have a decision that came across as more-in-sorrow-than-in-anger and that was as deliberate, meticulous, thoughtful and studiously impartial as possible.”

Anthony Romero, the executive director of the A.C.L.U., said Judge Taylor’s decision represented vindication of established limits on the scope of executive authority.

“Ultimately,” Mr. Romero said, “any doubts about the decision will be taken up on appeal by sitting federal judges rather than pundits or commentators.”

Judge Taylor, a longtime trial court judge who was appointed by President Jimmy Carter, enjoys a good reputation among lawyers who have appeared before her, according to anonymous comments collected by the Almanac of the Federal Judiciary.

“Lawyers interviewed rated Taylor high in legal ability,” the almanac concluded. The eight quoted comments ranged from enthusiastic (“She is smart as hell”) to lukewarm (“She is competent”).

Supporters of the program, disclosed by The New York Times in December, suggested that Judge Taylor’s opinion was as good a way to lose as any.

“It’s hard to exaggerate how bad it is,” said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor’s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2002 that said it took for granted that Congress “could not encroach on the president’s constitutional power” to conduct warrantless surveillance to obtain foreign intelligence.

The decision also failed to cite a Supreme Court decision in June helpful to the plaintiffs, a group of journalists, scholars, lawyers and nonprofit organizations. The decision, Hamdan v. Rumsfeld, struck down the administration’s plans to try prisoners at Guantánamo Bay, Cuba, as war criminals. It was widely interpreted as a rebuke to the administration’s expansive conception of executive power.

“After Hamdan,” Professor Sunstein said, “this program is not easy to defend.”

Professor Balkin said there was a rushed quality to Judge Taylor’s decision, but he added that her reason for moving fast may have been the laudable one of assuring that more than one appeals court would have the opportunity to pass on the legality of the program.

Martin S. Lederman, a former Justice Department official who believes the program is illegal, said he found the contrast between Justice John Paul Stevens’s approach in Hamdan and Judge Taylor’s in the wiretapping case telling.

“Justice Stevens was criticized for not including sound bites and sweeping constitutional interpretation,” Mr. Lederman said. Judge Taylor’s decision, by contrast, he said, “was meant for headlines.”

 

[CockySOB]

I wouldn't worry Kathianne. They're probably not too bright not to see things Jillian's way either.....