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

[red states rule]

Pumpkin?

How about Cupcake?

 

[Rove Rules]

Bush said today that supporters of Judge Taylor-Diggs decision were "Naive." You gotta love that, when this guy gets to call someone else "naive." It's just hard not to chuckle - as much as I think most of us would love to buy the guy a cold one. Let's face it, he isn't exactly the sharpest box cutter in the junk draw.

It is refreshing though - you know this ruling is getting over turned, even if it is illegal and unconstitutional. It's like; "in your face!" When the libs win, they don't really win.

Alberto Gonzales can listen in on my phone calls any day. He'd hear nothing but high-praise for the NSA and a whole bushel of G-- Bless Americas!

The neo-cons rock and if you don't agree, you're just an educated fool who thinks too G-- darn much and asks too many stupid a-- questions.

 

[Stephanie]

Bush said today that supporters of Judge Taylor-Diggs decision were "Naive." You gotta love that, when this guy gets to call someone else "naive." It's just hard not to chuckle - as much as I think most of us would love to buy the guy a cold one. Let's face it, he isn't exactly the sharpest box cutter in the junk draw.

It is refreshing though - you know this ruling is getting over turned, even if it is illegal and unconstitutional. It's like; "in your face!" When the libs win, they don't really win.

Alberto Gonzales can listen in on my phone calls any day. He'd hear nothing but high-praise for the NSA and a whole bushel of G-- Bless Americas!

The neo-cons rock and if you don't agree, you're just an educated fool who thinks too G-- darn much and asks too many stupid a-- questions.

:food1:

 

[Gunny]

Bush said today that supporters of Judge Taylor-Diggs decision were "Naive." You gotta love that, when this guy gets to call someone else "naive." It's just hard not to chuckle - as much as I think most of us would love to buy the guy a cold one. Let's face it, he isn't exactly the sharpest box cutter in the junk draw.

It is refreshing though - you know this ruling is getting over turned, even if it is illegal and unconstitutional. It's like; "in your face!" When the libs win, they don't really win.

Alberto Gonzales can listen in on my phone calls any day. He'd hear nothing but high-praise for the NSA and a whole bushel of G-- Bless Americas!

The neo-cons rock and if you don't agree, you're just an educated fool who thinks too G-- darn much and asks too many stupid a-- questions.

Did the "Wannabe-comedian Board" recently go bust? Seems we have more than a few all of a sudden.

 

[The ClayTaurus]

Bush said today that supporters of Judge Taylor-Diggs decision were "Naive." You gotta love that, when this guy gets to call someone else "naive." It's just hard not to chuckle - as much as I think most of us would love to buy the guy a cold one. Let's face it, he isn't exactly the sharpest box cutter in the junk draw.

It is refreshing though - you know this ruling is getting over turned, even if it is illegal and unconstitutional. It's like; "in your face!" When the libs win, they don't really win.

Alberto Gonzales can listen in on my phone calls any day. He'd hear nothing but high-praise for the NSA and a whole bushel of G-- Bless Americas!

The neo-cons rock and if you don't agree, you're just an educated fool who thinks too G-- darn much and asks too many stupid a-- questions.

Lasagna ice cream.

 

[Stephanie]

Hey, it's Pete and Repete....

 

[jillian]

Perhaps I misunderstand your meaning, but FISA was passed into law in 1978 during the Carter Administration....

http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act

Where did you get the idea that it was passed during Bush I?

No one is claiming that the Executive Branch's power should be limitless, but then, neither should the other two branches of the government. The President has the authority to defend the United States, not Congress. I don't understand how spying on agents of foreign powers violates any amendment regarding unreasonable searches.

Still, I'll wait to see how the Supreme Court rules on this. My guess is that it will upset a lot of liberals. Then we'll get to hear how certain Supreme Court justices are under the influence of Bush.... golly, I just can't wait to read this insults!

The current incarnation, with the current timeframes, was established during BushI.

It's not the spying that's the problem...it's the lack of a warrant in spying on our OWN citizens. Why do you keep saying it's only foreigners who are being tapped? That isn't true. And, frankly, if it were, why wouldn't Bush comply with the law?

You don't think Bush's appointees make politically motivated decisions?

Interestingly, I'm not sure they're gonna give him a pass on this. There's really no justification for them to let it slide. And Roberts, at least, has already showed that he doesn't tolerate overreaching and limitless executive power. Will be interesting in any event.

 

[jillian]

Relax Pumpkin.

I am relaxed, sugar buns.

 

[Rove Rules]

"Wannabe comedian board!" Now that's funny! Are you sure you didn't come over from that board as well, Gunny?

My opinion on the recent developments on this issue are clearly stated. If there's a twinge of attempted humor, apologies, just trying to have a little fun.

Thanks and have a nice day.

 

[KarlMarx]

The current incarnation, with the current timeframes, was established during BushI.

I think I understand your meaning now.

It's not the spying that's the problem...it's the lack of a warrant in spying on our OWN citizens. Why do you keep saying it's only foreigners who are being tapped? That isn't true. And, frankly, if it were, why wouldn't Bush comply with the law?

No, I said "agents of foreign powers", which can include American citizens (as in the Rosenbergs, for instance).

You don't think Bush's appointees make politically motivated decisions?

No, actually I do. I also think that Clinton and Carter appointees make politcally motivated decisions.

Interestingly, I'm not sure they're gonna give him a pass on this. There's really no justification for them to let it slide. And Roberts, at least, has already showed that he doesn't tolerate overreaching and limitless executive power. Will be interesting in any event.

Except that it has been challenged in court before and the court decided in the Administration's favor. So there is a precedent.

 

[RyzinEnagy]

The neo-cons rock and if you don't agree, you're just an educated fool who thinks too G-- darn much and asks too many stupid a-- questions.

 

[jillian]

I think I understand your meaning now.

Cool. I might not have made it clear initially.

No, I said "agents of foreign powers", which can include American citizens (as in the Rosenbergs, for instance).

Then they can easily get a warrant AFTER the surveillance begins. Why gather evidence you can't use in Court anyway? Isn't the point to put the real villains away for a really long time?

No, actually I do. I also think that Clinton and Carter appointees make politcally motivated decisions.

There ya go... I agree. But it's the people who pretend that it's only the "other guys" who make decisions based on political ideology who are being disingenuous.

Except that it has been challenged in court before and the court decided in the Administration's favor. So there is a precedent.

I'm afraid I'm unfamiliar with the case. Perhaps a link or cite and we can discuss it. What I will say is if the decision you're talking about comes from another District Court judge or from an appeals court of a different circuit, then it's not binding on this judge. In fact, while it may interest the judge (assuming the other decision was written by a judge she respects), it has no precedential value whatsover.

For now, it's only a District Court decision, rightfully stayed pending appeal. You could have many conflicting district court decisions before the Circuit Courts of Appeal get them. After that, it'll go up to the Supreme Court and they'll make the ultimate decision if the Circuit Courts aren't in agreement (and we KNOW they won't be).

 

[CockySOB]

No one is claiming that the Executive Branch's power should be limitless, but then, neither should the other two branches of the government. The President has the authority to defend the United States, not Congress. I don't understand how spying on agents of foreign powers violates any amendment regarding unreasonable searches.

Still, I'll wait to see how the Supreme Court rules on this. My guess is that it will upset a lot of liberals. Then we'll get to hear how certain Supreme Court justices are under the influence of Bush.... golly, I just can't wait to read this insults!

Thank you Karl, for answering Jillian. Well put.

Jillian, unpucker those cheeks babe, and lighten up.

 

[KarlMarx]

Cool. I might not have made it clear initially.

Then they can easily get a warrant AFTER the surveillance begins. Why gather evidence you can't use in Court anyway? Isn't the point to put the real villains away for a really long time?

I don't believe that the purpose of the surveillance is to put anyone in jail, but to gather intelligence. That's the point. The FISA Court ruled in "re: Sealed Case" that, so long as the primary purpose of the surveillance is NOT a criminal investigation but to gather surveillance on individuals suspected of being agents of foreign powers or their collaborators, warrants were not needed.

I'm afraid I'm unfamiliar with the case. Perhaps a link or cite and we can discuss it. What I will say is if the decision you're talking about comes from another District Court judge or from an appeals court of a different circuit, then it's not binding on this judge. In fact, while it may interest the judge (assuming the other decision was written by a judge she respects), it has no precedential value whatsover.

Actually the case was ruled by the FISA court, since the almost everything regarding FISA is classified. I believe this is the link I cited in a previous post on another thread.....

http://files.findlaw.com/news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf

For now, it's only a District Court decision, rightfully stayed pending appeal. You could have many conflicting district court decisions before the Circuit Courts of Appeal get them. After that, it'll go up to the Supreme Court and they'll make the ultimate decision if the Circuit Courts aren't in agreement (and we KNOW they won't be).

Thanks for enlightening me, I'm not familiar with the judicial court process.

 

[jillian]

I don't believe that the purpose of the surveillance is to put anyone in jail, but to gather intelligence. That's the point. The FISA Court ruled in "re: Sealed Case" that, so long as the primary purpose of the surveillance is NOT a criminal investigation but to gather surveillance on individuals suspected of being agents of foreign powers or their collaborators, warrants were not needed.

Well, I would hope that the purpose of surveillance was to get information AND put the bad guys away. I've just read the first 20 pages of your link and, actually, the FISA Appeal Court found that while the FISA judge cannot question the government's certification that the warrant is for foreign intelligence purposes, since the FISA warrant is based on probably cause, there is no issue that information derived from such surveillance can be and is anticipated to be used in criminal prosecution. In fact, the Court found that the definitions forming the basis of FISA authority are founded in definitions of criminal behavior.

Actually the case was ruled by the FISA court, since the almost everything regarding FISA is classified. I believe this is the link I cited in a previous post on another thread.....

http://files.findlaw.com/news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf

Thank you for the link. What is interesting is I'm not certain what authority the FISA Court has to make constitutional determinations. I do think the decision was an appropriate one, though, since the statute clearly doesn't anticipate restrictions on the warrant once it is issued. Again, I'm only about 20 pages in, so I haven't gotten to the Court's ultimate determination and all of its reasoning.

Thanks for enlightening me, I'm not familiar with the judicial court process.

No worries.... kinda what they pay me for

 

[Annie]

Jilian, could you read this, ignore that it's from National Review, look at the bona fides of the writer. Check out Drezner from U of C or Volokh, both pretty well regarded constitutional experts, they have similiar problems with the ruling:

— Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.

http://article.nationalreview.com/?q=OWVlOGNiZmIyMmZkYTg2OGFiYzM3ZGU4Nzc0MjFjNzQ=

Amateur Hour?
A judge’s first-year failing-grade opinion.

By Bryan Cunningham

The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.

We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.

Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.

Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception” to FISA’s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.

More worrisome still are the judge’s breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an “F.” Here’s one of several examples: The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is “reasonable.” Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a “domestic” program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs, such as protecting us from attack, against other constitutional interests.

Lest there be any doubt as to whether Keith supported Judge Taylor’s view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge’s missive.

Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion.

Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.

Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention:

—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context (seizure of U.S. steel mills in the face of a union strike);

—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or

—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.

Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.

Trivial Pursuit. Perhaps most disturbing about the judge’s opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal “Schoolhouse Rock” episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP “regulates.” FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.

Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge’s oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.

Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2” British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

As Judge Taylor’s new favorite justice, Robert Jackson himself, warned, the courts should not “convert the constitutional Bill of Rights into a suicide pact.” I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor’s giant step in that direction to stand.

 

[LuvRPgrl]

If you want an answer from me, my name is Jill or Jillian. We are neither friends nor family, dearie. I don't answer disrespectful children.

Disrespectful for calling you Jilly?

Yet it is one of your allies that continues showing disrepect by calling a sitting president "chimpy". Funny though, "chimpy" was able to out do the best the Dems had two times in a row. BWAHHHAHAH

But the point is, how can you expect people to be respectful to you, when your camp continuously is disrespectful.

 

[KarlMarx]

Well, I would hope that the purpose of surveillance was to get information AND put the bad guys away. I've just read the first 20 pages of your link and, actually, the FISA Appeal Court found that while the FISA judge cannot question the government's certification that the warrant is for foreign intelligence purposes, since the FISA warrant is based on probably cause, there is no issue that information derived from such surveillance can be and is anticipated to be used in criminal prosecution. In fact, the Court found that the definitions forming the basis of FISA authority are founded in definitions of criminal behavior.

Surveillance is important for more than just criminal cases. Remember we are at war. Surveillance can be used for military purposes and for thwarting attacks. That's what upsets me about the decision. A judge has helped diminish the government's ability to protect Americans from harm. Because we are at war, I don't feel that criminal justice procedures are relevant when dealing with individuals who are foreigners and are very likely conspiring to launch attacks upon us.

That's where we will part company on the issue. Enemy combatants at Gitmo shouldn't be entitled to attorneys. Ensuring that the rights of agents of foreign powers are preserved at the cost of innocent lives doesn't make sense to me, either.

Let's not forget what these people actually are. They are monsters. Many detainees at Gitmo regularly attack the guards and attempt to kill them. Except under circumstances, e.g., treaties that have been ratified by the Senate and therefore oblige the President to observe, I fail see how a foreigner who is in the field in an foreign land engaging in hostilities against our troops is suddenly entitled to Constitutional protections.

 

[red states rule]

Near as I can tell, you haven't rubbed two thoughts together since you started posting.

But do share the bona fides which make you think you have the ability to call a Justice's decision "insane".

The pro terrorist and anti Bush ruling will be overturned. Here are more reasons


http://www.opinionjournal.com/editorial/feature.html?id=110008816
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."

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.

 

[jillian]

Surveillance is important for more than just criminal cases. Remember we are at war. Surveillance can be used for military purposes and for thwarting attacks. That's what upsets me about the decision. A judge has helped diminish the government's ability to protect Americans from harm. Because we are at war, I don't feel that criminal justice procedures are relevant when dealing with individuals who are foreigners and are very likely conspiring to launch attacks upon us.

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.

That's where we will part company on the issue. Enemy combatants at Gitmo shouldn't be entitled to attorneys. Ensuring that the rights of agents of foreign powers are preserved at the cost of innocent lives doesn't make sense to me, either.

Let's not forget what these people actually are. They are monsters. Many detainees at Gitmo regularly attack the guards and attempt to kill them. Except under circumstances, e.g., treaties that have been ratified by the Senate and therefore oblige the President to observe, I fail see how a foreigner who is in the field in an foreign land engaging in hostilities against our troops is suddenly entitled to Constitutional protections.

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?

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?