Judge nixes warrantless surveillance

[RandomGuy]

Judge nixes warrantless surveillance

DETROIT (AP) - A federal judge ruled Thursday that the government's warrantless wiretapping 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 American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which involves secretly listening to conversations between people in the U.S. and people in other countries.

The government argued that the program is well within the president's authority, but said proving that would require revealing state secrets.

The ACLU said the state-secrets argument was irrelevant because the Bush administration had already publicly revealed enough information about the program for Taylor to rule on the case.

"By holding that even the president is not above the law, the court has done its duty," said Ann Beeson, the ACLU's associate legal director and the lead attorney for the plaintiffs.

The NSA had no immediate comment on the ruling.

Taylor dismissed a separate claim by the ACLU over data-mining of phone records by the NSA. She said not enough had been publicly revealed about that program to support the claim and further litigation could jeopardize state secrets.

Beeson predicted the government would appeal the ruling and request that the order to halt the program be postponed while the case makes its way through the system. She said the ACLU had not yet decided whether it would oppose such a postponement.

I may not be a fan of everything the ACLU does, but it does fill a very vital and needed role in protecting civil liberties from potential tyrants.
(puts on his helmet, dives for a trench, and readies for the inevitable anti-ACLU vitriol)

[Mr. Peabody]

does this mean the constitution is for the terrorists and against freedom?

If the Constitution doesn't like it, then it can move to France with all of the other liberal commie fags.

[RandomGuy]

Elpimpo's wit once again finds the mark. (bows)

[boutons_]

Federal Judge Orders Halt to NSA Wiretapping

By Dan Eggen
Washington Post Staff Writer
Thursday, August 17, 2006; 2:42 PM

A federal judge in Detroit ordered a halt to the National Security Agency's warrantless surveillance program, ruling for the first time that the controversial effort ordered by President Bush was unconstitutional.

U.S. District Judge Anna Diggs Taylor wrote in a strongly-worded 43-page opinion that the NSA wiretapping program violates privacy and free-speech rights and the constitutional separation of powers between the three branches of government. She also found that it violates a 1978 law set up to oversee clandestine surveillance.

The Justice Department said that it was appealing the decision and that the parties to the lawsuit had agreed to delay the judge's order until the appeal could be heard.

Ruling in a case brought by the American Civil Liberties Union and other advocacy groups, Taylor, 73, wrote that "public interest is clear, in this matter. It is the upholding of the Constitution. . . . "

"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. " . . . There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."

The ruling marks a significant setback for the Bush administration, which has aggressively defended the legality of the NSA program since its existence was first revealed in press reports last December. Dubbing it the "terrorist surveillance program," officials have said the effort allows the NSA to monitor telephone calls and e-mails to and from the United States without warrants when one party is suspected of ties to al-Qaeda.

The decision could also have an impact on Congress, which has for months been debating whether to limit or endorse the NSA program through legislation.

The Justice Department argued in court that the program is well within Bush's authority as president, but said proving it would require revealing state secrets. The ACLU argued that many details about the program had already been revealed by Bush and other government officials, and Taylor, who was appointed to the bench by President Jimmy Carter, agreed.

"Today's ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," said ACLU Executive Director Anthony D. Romero. "Government spying on innocent Americans without any kind of warrant and without congressional approval runs counter to the very foundations of our democracy."

He called the ruling "yet another nail in the coffin of the Bush administration's strategy in the war on terror. . . . The judge very clearly points out that this, at its core, is about presidential powers.

© 2006 The Washington Post Company

====================

Not in the US's interest,
was only in the WH interest,
was in the Repug interest,
was in the dickhead-agenda-to-promote-president-to-divine-right-King interest

dubya/dickhead/puto Gonzalez kicked in the balls again.

Just wait til November when the motherfuckers are fully castrated.

[Obstructed_View]

It's certainly an issue to be cavalier about, because it's all about discrediting the president.

[boutons_]

"discrediting the president."

dubya is just an ignorant, but not innocent, puppet of dickhead, who is the real target because he has discredited the paranoid checks and balances of the Constitution.

The WH Repugs are the LAST bunch of assholes the US should trust with unchecked power.

[FromWayDowntown]

Hmmm.

And Yonivore has been telling me that there's no way that anyone could find that the NSA program is unconstitutional. :rolleyes

[ChumpDumper]

It is now time to attack the judge.

[Obstructed_View]

"discrediting the president."

dubya is just an ignorant, but not innocent, puppet of dickhead, who is the real target because he has discredited the paranoid checks and balances of the Constitution.

The WH Repugs are the LAST bunch of assholes the US should trust with unchecked power.
Yeah, because the last time that happened all the blacks were set free.

[Mr. Peabody]

Hmmm.

And Yonivore has been telling me that there's no way that anyone could find that the NSA program is unconstitutional. :rolleyes

Good ol' Yoni. What blog did Yoni copy from to try and convince you of this?

[FromWayDowntown]

It is now time to attack the judge.

That is, of course, the answer to my post. The decision is incorrect because the judge simply does not understand constitutional law. I'm sure it's just a matter of time before Yoni cites us to some cleverly-named blog to tell us all that this judge is just a left-wing partisan who epitomizes the foolishness of those who oppose this President and the inherent propriety of any action he takes in the name of defeating terrorists.

[boutons_]

"all the blacks were set free."

which article or amendment established/protected slavery and was discredited by emancipation?

[ShackO]

Not to worry the world is safe for now..........

all things considered (http://www.npr.org/templates/story/story.php?storyId=5665192) , August 17, 2006 · A federal judge in Detroit says the Bush administration's domestic wiretap program violates both federal law and the Constitution and orders the warrantless suveillance program shut down. The ruling is the first definitive response to a barrage of legal suits. The Justice Department will appeal. In the meantime, both sides in the suit agree to a hold on the order to shut down the program.

[Extra Stout]

Let's play "count the Supreme Court justices..."

Scalia
Alito
Roberts
Thomas

...vote to overturn.

Ginsburg
Breyer
Stevens
Souter

...vote to uphold.

Kennedy?

[FromWayDowntown]

Let's play "count the Supreme Court justices..."

Scalia
Alito
Roberts
Thomas

...vote to overturn.

Ginsburg
Breyer
Stevens
Souter

...vote to uphold.

Kennedy?

As ever . . . .

[Obstructed_View]

"all the blacks were set free."

which article or amendment established/protected slavery and was discredited by emancipation?
Depriving citizens of property without due process of law.

[smeagol]

I'm no Bush supporter but I side with him on this one.

Being able to swiftly tapp suspected terrorists' telephones appears to be a reasonable weapon in the war on terror.

I do agree this can get out of control with an Administration such as this one, but hey, he was electedan relected.

Tapping phones probably played a mayor role in stopping last weeks failed plane-bombing plot.

[Ocotillo]

I'm no Bush supporter but I side with him on this one.

Being able to swiftly tapp suspected terrorists' telephones appears to be a reasonable weapon in the war on terror.

I do agree this can get out of control with an Administration such as this one, but hey, he was electedan relected.

Tapping phones probably played a mayor role in stopping last weeks failed plane-bombing plot.

There is a legal, constitutional way to tap phones of suspects whether they are in or out of the country. Slap the wiretap on, go to the FISA court up to 72 hours later and get the warrant. This does not hurt the war on terror.

This is what we are fighting to protect are our freedoms and a key part of the foundation of those freedoms is the constitution and the checks and balance that were put in place in it.

A unitary executive that spies on people without the consent or consultation of the legislative or judicial branch is ripe for abuse. As you say in your post this administration is particularly suspect.

But let's take the Bush administration out of it. Say Hillary Clinton wins in '08, do the conservatives that support the NSA wiretaps w/o warrants want her and her administration having the ability to wiretap whoever they want w/o consulting a judge?

My whole point is, without the court issuing a warrant, the executive can wiretap anyone they want for any reason they want and they have to answer to no one because who know they are even doing it?

The District judge is right in this case and the far right is already smearing her on the internet and on the right wing noise machine.

The NSA program had nothing to do with the airline plot that was disrupted this past week either.

[RandomGuy]

I'm no Bush supporter but I side with him on this one.

Being able to swiftly tapp suspected terrorists' telephones appears to be a reasonable weapon in the war on terror.

I do agree this can get out of control with an Administration such as this one, but hey, he was electedan relected.

Tapping phones probably played a mayor role in stopping last weeks failed plane-bombing plot.

Octillo is right.

The secret court that the administration bypassed has only turned down 7 out of tens of thousands of requests, yet the administration finds that court too binding?

I don't buy it.

[Yonivore]

Hmmm.

And Yonivore has been telling me that there's no way that anyone could find that the NSA program is unconstitutional. :rolleyes
She's a Carter appointee with apparent disdain -- evident in the ruling itself -- for the president.

Legal scholars are already ripping her ruling to shreds as being unworthy of even a first year law student. The appellate court immediately issued a stay of her ruling and she's being mocked in court circles.

So, maybe I should have said no competent jurist could find the NSA program unconstitutional.

[Yonivore]

Here's some professional analysis on the ruling. If you can find legal scholars, on the left, that are willing to trash their own reputations in defense of this whack-a-do judge I'd like to see their response.

Eugene Volokh (http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155856506):


...the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.
Dale Carpenter (http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155856278):


I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional. I have written so here. But I am less sure this is an issue courts should review, and even less sure that this case is one they should review.

So while the much sexier questions of executive power, the First Amendment, and the Fourth Amendment, will no doubt occupy many of us over the coming months (as they already have), I'd be willing to bet that at either the appellate court or the Supreme Court the suit will be dismissed for lack of standing.
Orin Kerr (http://confederateyankee.mu.nu/):


I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment...

It's hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that's the issue before the court, and my sense is that we really don't know enough to answer it without knowing the facts...

I can come up with explanations for why a district court judge inclined to rule against the program would put out an opinion that isn't quite ready for prime time. For example, Senator Specter's bill would take these issues away from the district court, so the choice might be to speak now or never. But at least based on the court's Fourth Amendment analysis, I suspect this opinion is important more for its political impact and its triggering of appellate review than for any analysis in the opinion itself.
Mark Levin (http://levin.nationalreview.com/post/?q=OGJiNjI3ZGFiMzk5NTQ1MjQ4MmRhMDgyNzhjNjVhYTU=) and Paul Mirengoff (http://powerlineblog.com/archives/015041.php) hit many of the same points. The consensus among these legal scholars -- and yes, unlike the pretenders in this forum, these are real lawyers -- is that the judge made a very weak ruling, and seem to indicate that it will probably get tossed at a September 7 appellate court hearing.

I think it's a case of the ACLU venue-shopped to get a judge that fit their needs, and won a short-term political victory. In the long run, it won't affect the operations of the NSA program all that much, if at all.

I just can't get too excited or irate over a case that seems assured to die a quick death. Let me know when Lawrence Tribe comes out in defense of this Carter moonbat.

[FromWayDowntown]

She's a Carter appointee with apparent disdain -- evident in the ruling itself -- for the president.

Legal scholars are already ripping her ruling to shreds as being unworthy of even a first year law student. The appellate court immediately issued a stay of her ruling and she's being mocked in court circles.

So, maybe I should have said no competent jurist could find the NSA program unconstitutional.

Mocked in court circles? How on Earth are you privy to what goes on in "court circles" unless you're a member of the judiciary, which past discussions strong suggest is untrue.

The stay in this case wasn't apparently issued by the 6th Circuit. It was one agreed to by the parties. Not terribly significant, I'll admit, but your post would appear to be incorrect on that point.

Nevertheless, this is still another example of just how non-sensical and utterly devoid of objective truth the old "judicial activism" cannard is. A judge rules against the President and she's immediately noted to be a Carter appointee, labeled "activist," wand castigated as utterly unqualified and completely incompetent. I'm not here to defend this judge; but it's evident to me that this issue will signal a crescendo in the "judicial activism" nattering. If a judge rules with the President, notwithstanding well-established Fourth Amendment law that suggests that this program is unconstitutional, that judge will be held out as a paragon of judicial virtue and a person of unassailable integrity and intelligence. As this ruling demonstrates, any judge who reaches a conclusion adverse to the President's position is doomed to incessant labelling and attack.

The judge may have reached the right conclusions, but for the wrong reasons. She may not have explained herself terribly well. She might not have employed convincing rhetoric to justify her conclusion. I'll admit that I find her rationale somewhat shaky. But judges (particularly lower court judges) struggle with all of those issues every day -- whether appointed by President Carter or President Reagan; President Bush or President Clinton. Her decision will be reviewed. It might be upheld; it might not be. But the attack on her integrity and intelligence based solely upon the result of her decision strikes me as cowardly.

Whatever happened to that Republican credo that nothing should ever subvert the rule of law? Such a quaint (c. 1999-2000) idea, really.

[Yonivore]

Mocked in court circles? How on Earth are you privy to what goes on in "court circles" unless you're a member of the judiciary, which past discussions strong suggest is untrue.

Nevertheless, this is still another example of just how non-sensical and utterly devoid of objective truth the old "judicial activism" cannard is. A judge rules against the President and she's immediately noted to be a Carter appointee, labeled "activist," wand castigated as utterly unqualified and completely incompetent. I'm not here to defend this judge; but it's evident to me that this issue will signal a crescendo in the "judicial activism" nattering. If a judge rules with the President, notwithstanding well-established Fourth Amendment law that suggests that this program is unconstitutional, that judge will be held out as a paragon of judicial virtue and a person of unassailable integrity and intelligence. As this ruling demonstrates, any judge who reaches a conclusion adverse to the President's position is doomed to incessant labelling and attack.

The judge may have reached the right conclusions, but for the wrong reasons. She may not have explained herself terribly well. She might not have employed convincing rhetoric to justify her conclusion. I'll admit that I find her rationale somewhat shaky. But judges (particularly lower court judges) struggle with all of those issues every day -- whether appointed by President Carter or President Reagan; President Bush or President Clinton. Her decision will be reviewed. It might be upheld; it might not be. But the attack on her integrity and intelligence based solely upon the result of her decision strikes me as cowardly.

Whatever happened to that Republican credo that nothing should ever subvert the rule of law? Such a quaint (c. 1999-2000) idea, really.
Hey Mr. Bloviator, I listed some commentary. So, show me some from the left that are defending the crazy judge.

[Yonivore]

And maybe the most qualified of any of the opininons I've posted comes from Bryan Cunningham (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 (http://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.
Mr. 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.

[RandomGuy]

That is, of course, the answer to my post. The decision is incorrect because the judge simply does not understand constitutional law. I'm sure it's just a matter of time before Yoni cites us to some cleverly-named blog to tell us all that this judge is just a left-wing partisan who epitomizes the foolishness of those who oppose this President and the inherent propriety of any action he takes in the name of defeating terrorists.


She's a Carter appointee with apparent disdain -- evident in the ruling itself -- for the president.

Legal scholars are already ripping her ruling to shreds as being unworthy of even a first year law student. The appellate court immediately issued a stay of her ruling and she's being mocked in court circles.

So, maybe I should have said no competent jurist could find the NSA program unconstitutional.

:lmao

Score! Three pointer!

[RandomGuy]

I think that the claims of venue-shopping were probably right. I would bet this makes it to the supreme court.

I would further bet that this wiretapping will eventually be found unconstitutional, despite what Yoni and his own venue-shopped lawyers say.

[FromWayDowntown]

Hey Mr. Bloviator, I listed some commentary. So, show me some from the left that are defending the crazy judge.

I'm not defending the judge. I'm just pointing out that this issue will, undoubtedly, rehash the judicial activism cannard as the right makes outcome-oriented complaints about the qualifications and credentials of judges. Just my opinion. I've got no need to rely on others to tell me what to think about that.

I certainly respect the views of Eugene Volokh and Orin Kerr, among others. I've frequently cited both of them in this forum and don't quarrel with their conclusions about this case. But what they've said has little to do with the propriety of the outcome and much, much more to do with the rationale by which that outcome was reached. Volokh concedes that it's not the outcome, but the rhetoric that is problematic here. Carpenter readily admits that he thinks the outcome here is probably legally correct in some abstract sense, even if untenable given the specific facts of the case. And Kerr, who is clearly a 4th Amendment wonk, admits that he thinks the ultimate issue presented by the case will prove to be a close call while lamenting that extrinsic factors may have caused this judge to issue an opinion that could have been revised to provide a better rationale while still reaching the same outcome. Seemingly, all of the initial commentators you cited don't question the ultimate decision here; they question the style by which that decision was reached and explained. Those strike me as two very, very different questions.

[Yonivore]

I'm not defending the judge. I'm just pointing out that this issue will, undoubtedly, rehash the judicial activism cannard as the right makes outcome-oriented complaints about the qualifications and credentials of judges. Just my opinion. I've got no need to rely on others to tell me what to think about that.

I certainly respect the views of Eugene Volokh and Orin Kerr, among others. I've frequently cited both of them in this forum and don't quarrel with their conclusions about this case. But what they've said has little to do with the propriety of the outcome and much, much more to do with the rationale by which that outcome was reached. Volokh concedes that it's not the outcome, but the rhetoric that is problematic here. Carpenter readily admits that he thinks the outcome here is probably legally correct in some abstract sense, even if untenable given the specific facts of the case. And Kerr, who is clearly a 4th Amendment wonk, admits that he thinks the ultimate issue presented by the case will prove to be a close call while lamenting that extrinsic factors may have caused this judge to issue an opinion that could have been revised to provide a better rationale while still reaching the same outcome. Seemingly, all of the initial commentators you cited don't question the ultimate decision here; they question the style by which that decision was reached and explained. Those strike me as two very, very different questions.
What of Bryan Cunningham's analysis?

[FromWayDowntown]

What of Bryan Cunningham's analysis?

Eh. He disagrees. The ultimate issue is a close one. Disagreement on the ultimate issue is fairly unexceptional.

[Yonivore]

Eh. He disagrees. The ultimate issue is a close one. Disagreement on the ultimate issue is fairly unexceptional.
You call what he wrote merely "disagreement?" Fascinating.

[FromWayDowntown]

You call what he wrote merely "disagreement?" Fascinating.

He challenges this judge for both her conclusion and her rationale.

You seem to suggest that Cunningham is a foremost and unassailable expert on both the legal and political issues that the NSA program creates and that nobody could rationally challenge his conclusions about the feasibility and constitutionality of that program. Alas, for you, that's not how the judicial system contemplated by our Constitution operates. I'm sure you'd prefer that all disputes about the legality of this President's foreign policy choices be submitted to Mr. Cunningham for resolution. Until he's confirmed to sit on a federal bench somewhere, though, that's not his province and his opinion, while certainly persuasive to some is hardly controlling to all.

Curiously, you've also cited legal experts with equally stellar credentials (Orin Kerr and Eugene Volokh were both Supreme Court clerks -- not a position one obtains without significant ability as a legal scholar) who concede that the legality of the program is at best a close call and admit (as Volokh does) that a well-reasoned opininon reaching this conclusion might very well stand up against appellate review through the Supreme Court.

Again, other than Cunningham, the commentary you've presented is less about the conclusion than it is about the means used to reach that conclusion. At the end of the day, the conclusion in any case will be far more significant to the fate of the NSA program than the rationale used to justify that conclusion. Cunningham obviously disagrees with, say, Dale Carpenter, about whether the program is ultimately constitutional. That's the debate we should be having here -- the propriety of the conclusion, regardless of the eloquence of the rationale.

You seem more inclined to castigate this particular judge as a partisan hack than to discuss the possibility that her ultimate conclusion might actually be correct. Insert judicial activism cannard (copyright 2000, GOP).

[Yonivore]

He challenges this judge for both her conclusion and her rationale.

You seem to suggest that Cunningham is a foremost and unassailable expert on both the legal and political issues that the NSA program creates and that nobody could rationally challenge his conclusions about the feasibility and constitutionality of that program. Alas, for you, that's not how the judicial system contemplated by our Constitution operates. I'm sure you'd prefer that all disputes about the legality of this President's foreign policy choices be submitted to Mr. Cunningham for resolution. Until he's confirmed to sit on a federal bench somewhere, though, that's not his province and his opinion, while certainly persuasive to some is hardly controlling to all.
I'd never heard of him before today. He just makes a compelling argument about the rationale and probable motives behind Judge Taylor's decision. Just as did many other legal experts I have cited here. Again, can you find a legal expert that is defending her decision?


Curiously, you've also cited legal experts with equally stellar credentials (Orin Kerr and Eugene Volokh were both Supreme Court clerks -- not a position one obtains without significant ability as a legal scholar) who concede that the legality of the program is at best a close call and admit (as Volokh does) that a well-reasoned opininon reaching this conclusion might very well stand up against appellate review through the Supreme Court.
Without going back to all their written discourse on this topic, and I read Volokh daily, I believe his position is that not enough can be known, without compromising national security, to even allow a court to render a decision on this matter but that if the administration is conducting intelligence gathering operations as it claims it is (using the program for only foreign intelligence operations), what they are doing is perfectly consistent with the first and fourth amendments and FISA.

It's back to what I've contended before; without an injured party with standing, there's no reason for this to be in the courts right now.


Again, other than Cunningham, the commentary you've presented is less about the conclusion than it is about the means used to reach that conclusion. At the end of the day, the conclusion in any case will be far more significant to the fate of the NSA program than the rationale used to justify that conclusion. Cunningham obviously disagrees with, say, Dale Carpenter, about whether the program is ultimately constitutional. That's the debate we should be having here -- the propriety of the conclusion, regardless of the eloquence of the rationale.
I don't think Judge Taylore's decision will stand any serious scrutiny and, in fact, it was vacated by an appellate court -- pending the appeal -- the same day it was issued.


You seem more inclined to castigate this particular judge as a partisan hack than to discuss the possibility that her ultimate conclusion might actually be correct. Insert judicial activism cannard (copyright 2000, GOP).
She is a partisan hack and her decision isn't worth the paper it's written upon. Besides not offering any constitutional or precedental support for her finding, she made a mockery of the judicial system. If this is the best the ACLU can find in its pursuit of the NSA Program, I'm comfortable it will be upheld by a more competent jurist than Taylor.

As has been suggested, this is a problem with the federal judiciary; litigants can venue shop. And, if the all-powerful ACLU did their shopping and came up with Taylor, that tells me no one else thought they had a leg to stand on.

[FromWayDowntown]

I'd never heard of him before today. He just makes a compelling argument about the rationale and probable motives behind Judge Taylor's decision. Just as did many other legal experts I have cited here. Again, can you find a legal expert that is defending her decision?

Are you being purposefully obtuse? I've spent the last few posts distinguishing the problematic nature of her rationale from the seemingly supportable conclusion she reached. As I've repeated several times, Volokh, Kerr, and Carpenter all appear to concede the possibility that the ultimate conclusion may be correct, even if reached by poor reasoning. You seem either unwilling or unable to make that distinction. I don't see any particular utility in finding a legal expert to defend her rationale, largely because I am persuaded that the rationale is lacking. But, again, poor rationale does not make the ultimate conclusion incorrect.


Without going back to all their written discourse on this topic, and I read Volokh daily, I believe his position is that not enough can be known, without compromising national security, to even allow a court to render a decision on this matter but that if the administration is conducting intelligence gathering operations as it claims it is (using the program for only foreign intelligence operations), what they are doing is perfectly consistent with the first and fourth amendments and FISA.

That's a rather exceptional characterization, given that the post you originally cited in this thread readily admitted that better reasoning in this case could very well have been persuasive to upstream jurists, who might have chosen to uphold the reasoning AND the conclusion. At the very least, that would suggest either that Volokh: (1) has no faith in the ability of federal appellate court judges to reach correct legal decisions and the ease with which they might be persuaded to reach incorrect results by logical brilliance; or (2) isn't convinced that the resolution of the ultimate constitutional question here is particularly clear-cut. Having also read Volokh for some time, I'm rather inclined to believe that, on balance, he subscribes to the second view.


It's back to what I've contended before; without an injured party with standing, there's no reason for this to be in the courts right now.

Admittedly a concern for those who seek to establish that the program is unconstitutional. That might very well be the basis for the reversal of this decision. But the absence of standing by a particular person who is willing to sue doesn't make the program constitutional.



I don't think Judge Taylore's decision will stand any serious scrutiny and, in fact, it was vacated by an appellate court -- pending the appeal -- the same day it was issued.

The decision couldn't have possibly been vacated by an appellate court. Vacatur is a remedy available at the conclusion of an appeal, not before any appellate review has occurred. The parties apparently agreed to stay enforcement of the orders attendant to Judge Taylor's decision -- very much different than an appellate court taking any action at all. And even if the appellate court itself was responsible for the stay, the fact of a stay in a case like this one is a rather unexceptional occurrence.


She is a partisan hack and her decision isn't worth the paper it's written upon. Besides not offering any constitutional or precedental support for her finding, she made a mockery of the judicial system.

Ah-ha!! Your argument.


If this is the best the ACLU can find in its pursuit of the NSA Program, I'm comfortable it will be upheld by a more competent jurist than Taylor.

As has been suggested, this is a problem with the federal judiciary; litigants can venue shop. And, if the all-powerful ACLU did their shopping and came up with Taylor, that tells me no one else thought they had a leg to stand on.

Litigants can shop for venue in almost every American judicial system. That's an inherent problem with permissive venue rules that create multiple bases for establishing proper venue. But those permissive venue rules are among the best protection that most litigants have in most cases. I don't know that there's any great uproar to fundamentally overhaul the venue rules, largely because the problems with doing so would substantially outnumber the relatively minor problems that currently exist, most all of which are remediable by existing protections afforded to defendant parties in litigation.

I wouldn't assume that a reversal of this decision would prove to be a death knell to litigation concerning the NSA program. There are several separate tracks of litigation occurring right now -- and in at least one of those cases, the rulings that have been made to this point aren't terribly favorable to the government. As Kerr's note points out, part of what may have hastened the release of the decision in this case is the looming possibility of an order consolidating all NSA program litigation into a single nucleus. We'll see.

[Yonivore]

Are you being purposefully obtuse? I've spent the last few posts distinguishing the problematic nature of her rationale from the seemingly supportable conclusion she reached. As I've repeated several times, Volokh, Kerr, and Carpenter all appear to concede the possibility that the ultimate conclusion may be correct, even if reached by poor reasoning.
I don't believe they do anything of the sort. They say the NSA Programs could be held to be unconstitutional if, in fact, the program were engaged in practices that, up to this point in the debate, have neither been alleged nor shown to have occurred. That's the case with the application of any law; the applicant's behavior could be unconstitutional if they acted outside the constitutional parameters allowed by the law.

That's all Volokh has ever suggested. And, he's made the caveat that, to his knowledge, no one has accused the administration of acting in this regard and, indeed, no one has claimed to have been materially harmed by the NSA Program.

I can't speak for the other guys.


You seem either unwilling or unable to make that distinction. I don't see any particular utility in finding a legal expert to defend her rationale, largely because I am persuaded that the rationale is lacking. But, again, poor rationale does not make the ultimate conclusion incorrect.
My point is this; given the facts we have -- and are likely to ever have -- there is no available rationale that would support such a finding.


That's a rather exceptional characterization, given that the post you originally cited in this thread readily admitted that better reasoning in this case could very well have been persuasive to upstream jurists, who might have chosen to uphold the reasoning AND the conclusion. At the very least, that would suggest either that Volokh: (1) has no faith in the ability of federal appellate court judges to reach correct legal decisions and the ease with which they might be persuaded to reach incorrect results by logical brilliance; or (2) isn't convinced that the resolution of the ultimate constitutional question here is particularly clear-cut. Having also read Volokh for some time, I'm rather inclined to believe that, on balance, he subscribes to the second view.
I think their points -- particularly Mr. Cunninghams -- are that better reasoning would have necessarily have had to include a more dutiful analysis of the first and fourth amendments to the U. S. Constitution and FISA and that this would necessarily expose the jurist to having to deal with established court precedent that tends to defend the administration's position in the NSA Program.


Admittedly a concern for those who seek to establish that the program is unconstitutional. That might very well be the basis for the reversal of this decision. But the absence of standing by a particular person who is willing to sue doesn't make the program constitutional.
No, but the absence of any evidence the administration is acting unconstitutionally does tend to act in their defense. Surely, you would agree that just because a law can be abused is not a reason for it to be abandoned.


The decision couldn't have possibly been vacated by an appellate court. Vacatur is a remedy available at the conclusion of an appeal, not before any appellate review has occurred. The parties apparently agreed to stay enforcement of the orders attendant to Judge Taylor's decision -- very much different than an appellate court taking any action at all. And even if the appellate court itself was responsible for the stay, the fact of a stay in a case like this one is a rather unexceptional occurrence.
I'm not a lawyer. I believe it was a stay that was issued. In any case, the judge's order had no affect, beyond the political, and will, I am confident, be vacated or overturned or whatever has to happen for it to be null and void.


Ah-ha!! Your argument.
Well, yeah. That seems to be everyone's position on this crock of crap. What other possible explanation is there for a professional, such as Judge Taylor, to issue such an "amateurish" court ruling on such a potentially significant issue.

I also believe she has acted similarly in the past.


Litigants can shop for venue in almost every American judicial system. That's an inherent problem with permissive venue rules that create multiple bases for establishing proper venue. But those permissive venue rules are among the best protection that most litigants have in most cases. I don't know that there's any great uproar to fundamentally overhaul the venue rules, largely because the problems with doing so would substantially outnumber the relatively minor problems that currently exist, most all of which are remediable by existing protections afforded to defendant parties in litigation.
My point was that since this flaw exists the ACLU must have had a pretty weak case if Judge Taylor was the best they find to take their case. Seems to me they could have found a principled moderate, along the lines of a, say, Eugene Volokh, to take the case -- if, in fact, there was any merit to their claims.


I wouldn't assume that a reversal of this decision would prove to be a death knell to litigation concerning the NSA program. There are several separate tracks of litigation occurring right now -- and in at least one of those cases, the rulings that have been made to this point aren't terribly favorable to the government. As Kerr's note points out, part of what may have hastened the release of the decision in this case is the looming possibility of an order consolidating all NSA program litigation into a single nucleus. We'll see.
Yes, we will.

[RandomGuy]

No, but the absence of any evidence the administration is acting unconstitutionally does tend to act in their defense. Surely, you would agree that just because a law can be abused is not a reason for it to be abandoned.

That is an odd thing to say about a program that abandons the law that required wiretapping to be vetted by a court in the first place.

If you are worried about abandoning laws, then you should be against the wiretapping.


I'm not a lawyer. I believe it was a stay that was issued. In any case, the judge's order had no affect, beyond the political, and will, I am confident, be vacated or overturned or whatever has to happen for it to be null and void.

Care to put some real money on it? :lol


What other possible explanation is there for a professional, such as Judge Taylor, to issue such an "amateurish" court ruling on such a potentially significant issue.

I also believe she has acted similarly in the past.

Ad hominem, rinse, repeat.


My point was that since this flaw exists the ACLU must have had a pretty weak case if Judge Taylor was the best they find to take their case. Seems to me they could have found a principled moderate, along the lines of a, say, Eugene Volokh, to take the case -- if, in fact, there was any merit to their claims.

Weak logic at best.

The purpose of venue-shopping to increase the odds in your favor. One can increase the odds and reduce uncertainty but never eliminate it.

If the case is that weak, then surely the administration's case is that much stronger?

If it is that much stronger, then would a case that is, by this logic, a certain slam dunk in any other court, still have a good chance, even with a strongly leaning judge?

The real fallacy here is once again, an ad hominem one.

If a biased judge rules a certain way most of the time, it cannot be conclusively or logically proven that any particular case was ruled on because of that bias.

I liar can lie all the time, but when he tells you the sky is blue, does that then make the sky NOT blue?

[George Gervin's Afro]

why not just get a warrant? that would solve verything however this administration has made no bones about strengthening the excecutive branch. dick cheney has made it very clear that in his opinion the executive branch has ceded to much authority to Congress and the courts.. To me this is the primary issue.. the expanding of the powers of the executive branch otherwise the NSA could simply apply for warrants for which there is almost a 100% chance the warrants would be granted.


please save the hypothetical " what if there is no time to get the warrant' argument..from my understanding the party tapping the line has up to 15 days after the fact to get the warrant..I am surprised that the known republicans on this board are ok with giving the executive branch carte blanche when it comes to allowing this branch of govt to act in secret.. without any type of checks or balances.

[Yonivore]

Orin Kerr at the Volokh Conspiracy kind of states my argument on this issue:


First, the issues raised by the NSA domestic surveillance program are not easy. Granted, I think that the Administration's published legal defense of the program is weak. But that doesn't mean that the program is illegal; the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don't know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don't know enough of the facts to know if the program violates the Fourth Amendment. I can recite the arguments, but without the facts I can't tell.)
In other words, we don't know enough to know if the program is unconstitutional or illegal. And, while Kerr doesn't state so here, others have said so in the past (on Volokh and elsewhere) that being able to know enough to make that determination might unnecessarily compromise national security in that methods and practices and possibly allies would have to be exposed in defending the program.


isn't the gist of Greenwald's argument [similar to that of From Way Downtown's regarding criticizing the judge's rationale over conclusion] somewhat similar to the arguments that the President's most zealous supporters have been making all along? In their case, of course, they have made such claims in response to criticisms of the Administration's legal defense of the NSA program, rather than in response to criticisms of Judge Taylor's opinion striking it down. But you've seen the argument many times, including in many VC comment threads: Rather than dwell on the "fascinating intellectual puzzle" of whether the NSA program is legal, we should focus on the really important question of defending the country against terrorists. In other words, stop quibbling over little legal issues and get back to the big picture. To be fair, this is often a very legitimate argument; legal niceties aren't everything. But it's not obvious to me why we would reject this advice when analyzing the DOJ's defense of the program but not when analyzing Judge Taylor's opinion striking it down.
Again, in other words, why is this argument not alright for defenders of the administration but okay for those who would support the conclusion of Judge Taylor, if not the means by which she reached it?

Once again, I argue that since we have no harmed party the issue shouldn't be before the courts in the first place.

[Obstructed_View]

It's funny that people only dislike legislating from the bench when they don't like the legislation.

[DarkReign]

It's funny that people only dislike legislating from the bench when they don't like the legislation.

Wait, wait....was that a moderate, rational comment?!

You sir are in the wrong forum.

[George Gervin's Afro]

Orin Kerr at the Volokh Conspiracy kind of states my argument on this issue:


In other words, we don't know enough to know if the program is unconstitutional or illegal. And, while Kerr doesn't state so here, others have said so in the past (on Volokh and elsewhere) that being able to know enough to make that determination might unnecessarily compromise national security in that methods and practices and possibly allies would have to be exposed in defending the program.


Again, in other words, why is this argument not alright for defenders of the administration but okay for those who would support the conclusion of Judge Taylor, if not the means by which she reached it?

Once again, I argue that since we have no harmed party the issue shouldn't be before the courts in the first place.



So in other words just trust bush? or any president for that matter? we could have just trusted richard nixon but luckily we didn't..

[Obstructed_View]

You sir are in the wrong forum.
Yeah but I like you guys more than most because of the basketball team you root for. :)

[Mr. Peabody]

Jack Balkin felt the style of the opinion was more strategic than anything.

http://balkin.blogspot.com/


Friday, August 18, 2006
The secret advantages of Judge Taylor's opinion in ACLU v. NSA


JB


Marty and I have noted the problems with Judge Taylor's opinion, even though we both agree that it reaches the right result. Why did Judge Taylor rush out such a sloppy opinion in the way she did? Some people have speculated that it was to hog all the glory for herself. But that's not the only possible reason. Judge Taylor has been on the bench for many years, and, presumably, she knows how the appellate process works. In this post, I try to show that strategically, at least, Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal.

Judge Taylor knew that most of other lawsuits challenging the NSA program were being consolidated in California, and hers might be as well. She might have wanted to ensure that the 6th Circuit got to pass on the NSA case in addition to the 9th Circuit. The more circuit courts that passed on the case, the greater the chance that one of them would hold the way she thought the case should come out, and present a favorable record on appeal to the Supreme Court. But more important, she might have noted that the Supreme Court regularly reverses the 9th Circuit, and that the judges on the 6th Circuit might do a better job with the case, or, at the very least, their work would be viewed with less skepticism by the Justices.


Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal.


Judge Taylor's opinion did both of these things in her opinion. First, she raised as many claims on the merits as she could think of, even if her analysis skated over the surface and didn't provide the best arguments for both sides. This puts the Justice Department in an interesting position. The DOJ takes the view that courts can't possibly resolve the legal issues on the merits because state secrets are involved. But because of Judge Taylor's scattershot approach, it will have to make arguments on appeal showing why her arguments are wrong on each issue; that will undercut its claim that the legal issues can't be disposed of without revealing privileged information.


Second, Judge Taylor found as a matter of fact that the secret materials she viewed ex parte don't affect the resolution of the case, except for the data mining claim. If that is a pure question of fact, it is subject to the clearly erroneous standard. Of course, if it is a mixed question of law and fact-- which I think it is-- it is subject to more searching appellate review. But either way, Judge Taylor made factual findings that help the plaintiffs on appeal, even if her analysis of the merits is rejected. It may not be accidental, then, that Judge Taylor spent more time on the state secrets issue than she did on the merits. She may have reasoned that the 6th Circuit would do the merits over anyway, but as a trial court judge she could have the most effect on the procedural issues.


Because Judge Taylor undercut the DOJ's state secrets arguments in the ways I have suggested, on appeal the DOJ will probably emphasize standing even more than it already has. But here's where Judge Taylor's rather innovative First Amendment argument comes into play. To win on standing, plaintiffs need not win on the merits; they need only show that they raise colorable claims of rights violations that injure legally protected interests that courts can remedy. The first amendment argument-- that the secret program chills protected expression and association-- is not a very good argument in its current form, but it is a colorable argument. It will take some work to defeat it. And that fact helps secure the plaintiffs' standing. By making what is not a particularly good argument about the First Amendment, Judge Taylor enabled the 6th circuit to address what is really the best argument-- that the NSA program violates Congressional law, in particular FISA.


Judge Taylor's opinion isn't really very good as a discussion of the merits. But district court judges know that this isn't the only thing that matters. Time will tell whether Judge Taylor's work on state secrets and standing pays off and keeps her ultimate judgment-- that the NSA program is illegal-- from being overturned.


Posted 1:11 PM by JB [link] (1) comments

[DarkReign]

Yeah but I like you guys more than most because of the basketball team you root for. :)

:lmao

[Yonivore]

So in other words just trust bush? or any president for that matter? we could have just trusted richard nixon but luckily we didn't..
Well, in the case of Richard Nixon, there was evidence of a crime.

[RandomGuy]

Jack Balkin felt the style of the opinion was more strategic than anything.

http://balkin.blogspot.com/

That makes more sense to me than Yoni's "she is an idiot" explanation.

Despite what many like to think about judges on the federal level, they generally don't get there by being intellectual slouches.

If one of them issues something that looks sloppy as Yoni's posted analysis' suggest, it is simply seems more probable to me that there might be some other factor at work.

Fascinating insight into the judicial process this is.

[Ocotillo]

[evil laugh]Sounds like a potential Supreme Court nominee.[/evil laugh]

[Yonivore]

Jack Balkin felt the style of the opinion was more strategic than anything.

http://balkin.blogspot.com/
It's interesting how the "judge" contrived standing for the plaintiffs.

"Standing" here was found by lawyers claiming they were speaking constantly to potential terrorist targets overseas, and their possibly-terrorists clients were too a-scared to speak freely. Even if you buy that, the harm is suffered by the non-citizen terrorist clients, not by the American laywers themselves.

Which brings up a couple of points. #1, made over at Patterico's Pontifications:

Yesterday’s Court Decision Proves the NSA Disclosures Harmed National Security (http://patterico.com/2006/08/18/5020/yesterdays-court-decision-proves-the-nsa-disclosures-harmed-national-security/#more-5020)

#2, by James Taranto at WSJ's Online Journal (http://www.opinionjournal.com/best/) (see sixth item from top titled, "Digs at Diggs"), in which it is suggested that the Plaintiffs' admissions are grounds for FISA warrants on the lot of them.

[FromWayDowntown]

I think there is a danger -- in the slippery slope sense -- in the position that Yonivore contends is the superior position. The notion that an Administration could so burden the facts of a case with claims of needed secrecy that it can effectively avoid judicial review of its actions strikes me as inherently problematic in a government of co-equal branches. In the abstract, the executive branch could offer seriatim rebukes to judicial review of virtually any executive-enacted program by simply claiming that the facts associated with determining the constitutionality of the program are state secrets or otherwise inadvisably made public. Certainly, there are some limitations on that and the right of judges to conduct in camera inspections of fact-oriented material that bears on the propriety of the secrecy claims might mitigate the concern. But if the executive chose to do so, it could essentially insulate its programs from any judicial meddling by being as obtuse as possible about the facts of a program and as strident as possible about claiming privilege. If it succeeds in this context, and in light of this Administration's constant carping about its dislike for judges who don't kowtow to the Administration's policy choices, it wouldn't surprise me to see an increased blanket of secrecy around executive branch programs -- a result that strikes me as antithetical to the spirit of a constitutional democracy.

[Yonivore]

I think there is a danger -- in the slippery slope sense -- in the position that Yonivore contends is the superior position. The notion that an Administration could so burden the facts of a case with claims of needed secrecy that it can effectively avoid judicial review of its actions strikes me as inherently problematic in a government of co-equal branches. In the abstract, the executive branch could offer seriatim rebukes to judicial review of virtually any executive-enacted program by simply claiming that the facts associated with determining the constitutionality of the program are state secrets or otherwise inadvisably made public. Certainly, there are some limitations on that and the right of judges to conduct in camera inspections of fact-oriented material that bears on the propriety of the secrecy claims might mitigate the concern. But if the executive chose to do so, it could essentially insulate its programs from any judicial meddling by being as obtuse as possible about the facts of a program and as strident as possible about claiming privilege. If it succeeds in this context, and in light of this Administration's constant carping about its dislike for judges who don't kowtow to the Administration's policy choices, it wouldn't surprise me to see an increased blanket of secrecy around executive branch programs -- a result that strikes me as antithetical to the spirit of a constitutional democracy.
If there weren't a whole buttload of Islamo-fascists trying to end our way of life, indeed, our very lives, you'd have a point.

Again, name one harmed party resulting from the conduct of the NSA Surveillance programs.

I think the whole thing hinges on the definition of "United States Person" under the statute.

[RandomGuy]

Yup. It is a hallmark of repressive governments worldwide, most notably China, to arbitrarily wave their hands and say "state secret" on things they find remotely embarassing.

Secrecy is NOT the hallmark of good government.

The "secret" energy task force comes to mind immediately.

[FromWayDowntown]

If there weren't a whole buttload of Islamo-fascists trying to end our way of life, indeed, our very lives, you'd have a point.

If the ends justify the means, why isn't (or why shouldn't) the government going house-to-house in largely Muslim neighborhoods in unannounced raids? Or, better yet, why not just inter all Muslims? That would certainly seem to be a reasonable step towards containing the domestic Islamo-fascist threat. And if the existence of a conflict justifies governmental subversion of basic constitutional principles, there shouldn't be any problem with doing either of those things in the spirit of prevailing in the conflict. Perhaps the government should just order that all Mosques in the United States be closed. Or maybe it should prohibit the publication of pro-Muslim/pro-al Queda literature.

Really.

[Mr. Peabody]

If the ends justify the means, why isn't (or why shouldn't) the government going house-to-house in largely Muslim neighborhoods in unannounced raids? Or, better yet, why not just inter all Muslims? That would certainly seem to be a reasonable step towards containing the domestic Islamo-fascist threat. And if the existence of a conflict justifies governmental subversion of basic constitutional principles, there shouldn't be any problem with doing either of those things in the spirit of prevailing in the conflict. Perhaps the government should just order that all Mosques in the United States be closed. Or maybe it should prohibit the publication of pro-Muslim/pro-al Queda literature.

Really.

I think you just came up with the Republican platform for 2008....

[boutons_]

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.”

Copyright 2006 The New York Times Company

[AFE7FATMAN]

http://apnews.myway.com/article/20060817/D8JI9A281.html

Appointed as a federal judge in 1979 - thank you mr peanut farmer! :rolleyes


http://www.freep.com/apps/pbcs.dll/article?AID=2006608070381

Those who know her claim she will not include her liberal bias in her decision.

Year, right! :lol

Goes hand in glove with the liberal stance of enabling terrorists to do their best to kill Americans.

Liberals tied the hands of the military from fighting the war in Vietnam as it should have and they are now tying the current administration's hands and preventing them from fighting the global war on terrorism.

Yep liberals do love their country - NOT! They whine, pi$$ on their legs, and moan about how ineffective the Bush administration is in fighting the global war on terrorism and then tie their hands to prevent them from doing whatever it takes to prevent the next 9/11.

Heres an awesome idea. Lets let the demonrats win control of the congress this year and then win control of the White House in 2008 and then when the terrorists strike this nation again in 2009 [less than a year after a demonrat is sworn in as president] killing tens of thousands of Americans, we can then lay the blame squarely at the feet of demonrats like they did with President Bush on 9/11.

We can even accuse demonrats of "knowing about the attack before it happened".

Who would expect anything less, from a Liberal Judge. . . That would be like expecting the ACLU to defend you right to bear arms!

[Yonivore]

If the ends justify the means, why isn't (or why shouldn't) the government going house-to-house in largely Muslim neighborhoods in unannounced raids? Or, better yet, why not just inter all Muslims? That would certainly seem to be a reasonable step towards containing the domestic Islamo-fascist threat. And if the existence of a conflict justifies governmental subversion of basic constitutional principles, there shouldn't be any problem with doing either of those things in the spirit of prevailing in the conflict. Perhaps the government should just order that all Mosques in the United States be closed. Or maybe it should prohibit the publication of pro-Muslim/pro-al Queda literature.

Really.
Well, I find your definition of "reasonable" somewhat lacking.

However, I believe it is entirely reasonable to surveil telephone calls from suspected terrorists abroad (or domestically) when they call someone in the United States.

[BIG IRISH]

Why bug the phones?
We can just ask them what they are up to after we give them some more tours:

The Department of Homeland Security took a Muslim group with known past ties to terror organizations on a VIP tour of security operations at the nation's busiest airport at the same time British authorities were working to break up a plot to blow up U.S. airlines.

On June 21, a senior DHS official from Washington personally guided Muslim officials from the Council on American-Islamic Relations on a behind-the-scenes tour of Customs screening operations at O'Hare International Airport in response to CAIR complaints that Muslim travelers were being unfairly delayed as they entered the U.S. from abroad.

CAIR is a spin-off of the Islamic Association for Palestine, identified by two former FBI counterterrorism chiefs as a "front group" for the Palestinian terrorist group Hamas. Several CAIR leaders have been convicted on terror-related charges.

The founder of the Texas chapter of a highly influential U.S. Islamic lobby group was found guilty of supporting terrorism.

Ghassan Elashi, along with two brothers, was convicted in Dallas of channeling funds to a high-ranking official of the Palestinian terrorist group Hamas, Mousa Abu Marzook.

Elashi was a board member of the Texas chapter of the Washington, D.C.-based Council on American Islamic Relations -- the third CAIR figure to be convicted on federal terrorism charges since 9-11.

CAIR is a spin-off of the Richardson, Texas-based Islamic Association For Palestine, or IAP, which was founded by Marzook.

Former FBI counterterrorism chief Oliver Revell has called the IAF "a front organization for Hamas that engages in propaganda for Islamic militants."


During the airport tour, CAIR was taken on a walk through the point-of-entry, Customs stations, secondary screening and interview rooms. In addition, U.S. Customs and Border Patrol agents were asked to describe for CAIR representatives various features of the high-risk passenger lookout system.

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=51573

[jochhejaam]

I don't have a problem with the Administration having to obtain a warrant, but only to the extent that it does not comprimise or delay, in any way, our efforts to protect the lives and interests of Americans and our allies.

Unfortunately, as with this particular Judge, political leanings and personalized interpretation of the laws is a factor in bypassing the warrant.

In light of the escalation of terrorism we don't have the luxury of allowing ourselves to be bridled by the political gamesmanship that surfaces when Judges put their personal feelings about an Administration above the interests of our National Security by rendering rulings that are without merit.

And again, as pointed out by several posters, no one has been able to say that they have personally been adversely affected by the warrantless wiretapping program.

[FromWayDowntown]

Well, I find your definition of "reasonable" somewhat lacking.

However, I believe it is entirely reasonable to surveil telephone calls from suspected terrorists abroad (or domestically) when they call someone in the United States.

What causes you to draw a line between telephone surveillance and door-to-door sweeps? Other than the quaint notion that people are entitled to privacy and that the government should not intrude on that privacy in most instances, what is the real functional difference between my proposal and the NSA program? Effectively, each is aimed at rooting out potential terrorist plots and foiling them before they can be undertaken. Why is one reasonable in your mind and the other not? Your retort sounds a lot like an "I know it when I see it" approach to the reasonableness of warrantless searches. Should the distastefulness vel non of the program define its legality?

[boutons_]

Ruling Against Wiretaps Further Sharpens Partisan Divide

By Jonathan Weisman
Washington Post Staff Writer
Saturday, August 19, 2006; A05

A federal judge's ruling that the National Security Agency's warrantless wiretapping is unconstitutional set off a flurry of political responses yesterday, as Republicans tried to keep control of the national security debate amid signs that their own party's ranks may be breaking under the pressure of the Iraq war.

( the Repugs could have kept it all, but they started this fucking Repug war and it's going to kill them. good riddance )

President Bush concluded a discussion on the economy with a challenge to Democrats, many of whom had hailed U.S. District Judge Anna Diggs Taylor's ruling that the NSA's wiretapping efforts violate both the Bill of Rights and federal law.

"Those who herald this decision simply do not understand the nature of the world in which we live," Bush said after meeting with his economic team at Camp David. "This country of ours is at war, and 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."

( ... says so-called man who is the most ignorant, befudlded, simple-minded motherfucker to be elected by The Great American Sheeple )

He then said that "it would be interesting to see . . . how other policymakers react."

Minutes later, under the headline "Dems Rejoice," the Republican National Committee illuminated those reactions, releasing the statements of eight Democrats -- including House Minority Leader Nancy Pelosi (Calif.) and Sen. John F. Kerry (Mass.), the 2004 presidential nominee -- all heralding the decision as a rebuke to the president.

The National Republican Senatorial Committee challenged Democratic candidates to "stand up in opposition to a liberal judge," while the RNC released an Internet advertisement painting the Democrats as soft on defense. The ad shows prominent Democrats decrying warrantless wiretapping, abusive interrogations, ballistic missile defense and the war in Iraq through the opening of a cave, meant to represent the vantage point of terrorists monitoring the opposition party.

"Democrats say they want to talk about national security and the war on terror . . . while terrorists are watching," the narrator intones.

( .... while terrists are murdering US military in Iraq placed there under false pretenses by the Repugs )

With that burst of activity, Republicans appeared ready to make Taylor's decision on wiretapping the 2006 equivalent of a Massachusetts judge's legalization of same-sex marriage in 2004: a rallying cry for the Republican base.

"They never miss an opportunity to play divisive politics on national security," said Rep. Rahm Emanuel (Ill.), chairman of the Democratic Congressional Campaign Committee. "The one casualty Americans would accept in the war on terror is partisanship, and that's the one thing George Bush won't give up."

But with polls showing Republican voters more divided on security issues than Democrats are, it was unclear whether the strategy would work again.

"There is no consensus that Republicans are better on terrorism than the Democrats, as once was clearly the case," said Andrew Kohut, director of the Pew Research Center for the People and the Press.

A Pew Research Center poll released Thursday found "no evidence that terrorism is weighing heavily on voters -- just 2 percent cite that as the issue they most want to hear candidates discuss, far fewer than the number mentioning education, gas prices, or health care." The center continued: "And while roughly a third of Americans (35 percent) say they are very concerned that if Democrats gain control of Congress, they will weaken terrorist defenses, even more (46 percent) express great concern that Republicans will involve the U.S. in too many overseas military missions if the GOP keeps its congressional majorities."

Republicans have done such a good job framing the invasion of Iraq as part of a "war on terror" that bad news from Baghdad is casting doubts on the anti-terrorism effort, Kohut said. Republican voters, meanwhile, are split on whether to withdraw U.S. troops from Iraq, the poll found.

( oops, the Repug incompetence is always on display )

Reflecting these pressures, Republicans in swing districts are beginning to waver. In an interview from Israel yesterday, Rep. Christopher Shays (R-Conn.) said the political will of the United States is being stretched to the limit. He promised to offer a time frame for troop withdrawals when he returns next week from his 14th trip to Iraq.

"We have got to find a way to come to some kind of consensus, so we can do what's right for our country and what's right for the Iraqis," said Shays, an ardent supporter of the war who is in a political dogfight with his antiwar Democratic opponent. "We have to say 'This is the latest we will leave'
and be able to live with that."
( ok, this Repug is ready to cut-and-run, no matter what )

Shays plans to hold three hearings next month to explore whether Iraq is heading toward democracy or civil war, a state parts of the country are already in, he said. "I am more pessimistic, clearly," he said.

( Iraqis are killing themselves at a rate of 50K/year. The civil war is at full blast, thanks to the Repugs )

On Thursday, Rep. Michael G. Fitzpatrick (R-Pa.) wrote a letter to constituents declaring that he was saying no to "President Bush's 'stay-the-course' strategy" in Iraq. That followed a Fitzpatrick statement earlier this month saying: "When it comes to the war in Iraq, President Bush has been bold, principled, resolute, but mistaken in crucial ways."

Amid such discord, Republicans welcomed a return to debating the NSA's warrantless surveillance program. With no quick resolution of the case in sight, the judicial decision is likely to remain an issue. The Justice Department filed its notice of appeal in the case Thursday with the U.S. Court of Appeals for the 6th Circuit in Cincinnati. But no deadline had been set as of yesterday afternoon for submitting briefs, a Justice Department official said.

"It's an opportunity, as we see it, to highlight the fundamental choice between the two parties," RNC spokeswoman Tracey Schmitt said, "between a party that understands the need for post-9/11 tools in a post-9/11 world and a party that questions giving law enforcement the tools they need to be successful."

( that's not even a Good Try, Tracey, at framing. All the Repugs understand is how to divide the country and exploit their bogus war on terr for Repug partisan purposes )

Staff writer Dan Eggen contributed to this report.

© 2006 The Washington Post Company

[exstatic]

I don't have a problem with the Administration having to obtain a warrant, but only to the extent that it does not comprimise or delay, in any way, our efforts to protect the lives and interests of Americans and our allies.
Well, you should not be a supporter of warrantless wiretapping then, since FISA actually authorizes POST action warrants, removing your delay concerns.


Unfortunately, as with this particular Judge, political leanings and personalized interpretation of the laws is a factor in bypassing the warrant.

In light of the escalation of terrorism we don't have the luxury of allowing ourselves to be bridled by the political gamesmanship that surfaces when Judges put their personal feelings about an Administration above the interests of our National Security by rendering rulings that are without merit.
FISA has it's own court of judges. You don't have to go to lower level courts for this. You can get a warrant up to 72 hours after the fact.


And again, as pointed out by several posters, no one has been able to say that they have personally been adversely affected by the warrantless wiretapping program.
Fallacious position. Because it hasn't affected you personally, it's OK? Bullshit. It's wrong.


When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I did not speak out;
I was not a Jew.

When they came for me,
there was no one left to speak out.

[thispego]

Fleas can be taught nearly anything that a Congressman can.
- What Is Man?


Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.
- Mark Twain, a Biography

Congressman is the trivialist distinction for a full grown man.
- Notebook #14, 11/1877 - 7/1878

All Congresses and Parliaments have a kindly feeling for idiots, and a compassion for them, on account of personal experience and heredity.
- Mark Twain's Autobiography; also in Mark Twain in Eruption
Congressman and flea
Illustration from AMERICAN EXAMINER, 1910
from the Dave Thomson collection

It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress.
- Pudd'nhead Wilson's New Calendar

It is the foreign element that commits our crimes. There is no native criminal class except Congress.
- More Maxims of Mark, Johnson, 1927

...I never can think of Judas Iscariot without losing my temper. To my mind Judas Iscariot was nothing but a low, mean, premature, Congressman.
- "Foster's Case", New York Tribune, 3/10/1873

[jochhejaam]

Fallacious position. Because it hasn't affected you personally, it's OK? Bullshit. It's wrong.
I said than "no one" here has provided information as to them being affected by the wiretapping. Do you have information about anyone being adversely affected?

If no one's hurt, what's the problem with wiretapping that's done under circumstances that may allow for it without a warrant? We are talking about our National Security interests here.

[ChumpDumper]

What's the problem with getting a warrant?

[boutons_]

"What's the problem with getting a warrant?"

Whatever the right calls a liberal is for, the right is against, knee-jerk-ily.

Whatever the right is for, it's automatically pure and right and true, and any rightwinger in power is now and forever pure, legal, honest, infiinitely trustable, as if he paranoia and distrustfulness inherent in the Constitution is to be ignored as a liberal plot to persecute the right.

I'm sure the right would equally and rabidly support any and every extra-legal, secret Executive power grab by Clinton or inherited by the next Dem president.

Anybody who thinks the RNC and Rove aren't deeply into the content of the warrantless snooping of Democrats is at best naive. And then there is the RNC/Rove use of warrantless snooping of rich corps as a shakedown tool.

[IceColdBrewski]

Judge Anna Diggs Taylor is a 73-year-old black woman with deep liberal and Democratic roots. She campaigned for Jimmy Carter's presidential election bid in '76, and was rewarded by him with the lifetime appointment to the US District Court in Detroit. She definitly fits the mold of someone who would tend to disagree with the Bush administration.

I suspect the U.S. 6th Circuit Court of Appeals will be overturning her ruling.

[exstatic]

Judge Anna Diggs Taylor is a 73-year-old black woman with deep liberal and Democratic roots. She campaigned for Jimmy Carter's presidential election bid in '76, and was rewarded by him with the lifetime appointment to the US District Court in Detroit. She definitly fits the mold of someone who would tend to disagree with the Bush administration.

I suspect the U.S. 6th Circuit Court of Appeals will be overturning her ruling.
Those pesky damn darkies, wantin' they Constitutional rights protected. :rolleyes

[jochhejaam]

What's the problem with getting a warrant?
I'm not sure there is one. The question is whether the process can be bypassed under certain circumstances.

It's seems there may be a power struggle between the Executive and Judicial Branches of our Government.

[ChumpDumper]

I'm not sure there is one. The question is whether the process can be bypassed under certain circumstances. Which circumstances?

[jochhejaam]

Which circumstances?
If you get the urge to do so. Just for kicks.

I honestly don't know CD.

[ChumpDumper]

Honestly I think they just don't want a paper trail that can be scrutinized in the future.

[Ya Vez]

in times of war you listen in to enemy conversations without warrants.... are we not in a war? Is not america a battlefield now....?

[Clandestino]

There is a legal, constitutional way to tap phones of suspects whether they are in or out of the country. Slap the wiretap on, go to the FISA court up to 72 hours later and get the warrant. This does not hurt the war on terror.

This is what we are fighting to protect are our freedoms and a key part of the foundation of those freedoms is the constitution and the checks and balance that were put in place in it.

A unitary executive that spies on people without the consent or consultation of the legislative or judicial branch is ripe for abuse. As you say in your post this administration is particularly suspect.

But let's take the Bush administration out of it. Say Hillary Clinton wins in '08, do the conservatives that support the NSA wiretaps w/o warrants want her and her administration having the ability to wiretap whoever they want w/o consulting a judge?

My whole point is, without the court issuing a warrant, the executive can wiretap anyone they want for any reason they want and they have to answer to no one because who know they are even doing it?

The District judge is right in this case and the far right is already smearing her on the internet and on the right wing noise machine.

The NSA program had nothing to do with the airline plot that was disrupted this past week either.

72 hours is too fucking long

[Clandestino]

raising money on the campaign trail

[Clandestino]

filling up my suv's 50 gallon tank

[Clandestino]

been driving around passing out bibles and shit

[Ya Vez]

gosh I can't believe democrats never said a word about echelon and the clinton admin.

Under Clinton, NY Times called surveillance "a necessity"
January 12th, 2006

The controversy following revelations that U.S. intelligence agencies have monitored suspected terrorist related communications since 9/11 reflects a severe case of selective amnesia by the New York Times and other media opponents of President Bush. They certainly didn’t show the same outrage when a much more invasive and indiscriminate domestic surveillance program came to light during the Clinton administration in the 1990’s. At that time, the Times called the surveillance “a necessity.”

“If you made a phone call today or sent an e-mail to a friend, there’s a good chance what you said or wrote was captured and screened by the country’s largest intelligence agency.” (Steve Kroft, CBS’ 60 Minutes)

Those words were aired on February 27, 2000 to describe the National Security Agency and an electronic surveillance program called Echelon whose mission, according to Kroft,

“is to eavesdrop on enemies of the state: foreign countries, terrorist groups and drug cartels. But in the process, Echelon’s computers capture virtually every electronic conversation around the world.”

Echelon was, or is (its existence has been under-reported in the American media), an electronic eavesdropping program conducted by the United States and a few select allies such as the United Kingdom.

Tellingly, the existence of the program was confirmed not by the New York Times or the Washington Post or by any other American media outlet – these were the Clinton years, after all, and the American media generally treats Democrat administrations far more gently than Republican administrations – but by an Australian government official in a statement made to an Australian television news show.

The Times actually defended the existence of Echelon when it reported on the program following the Australians’ revelations.

“Few dispute the necessity of a system like Echelon to apprehend foreign spies, drug traffickers and terrorists….”

And the Times article quoted an N.S.A. official in assuring readers

“...that all Agency activities are conducted in accordance with the highest constitutional, legal and ethical standards.”

Of course, that was on May 27, 1999 and Bill Clinton, not George W. Bush, was president.

Even so, the article did admit that

“...many are concerned that the system could be abused to collect economic and political information.”

[FromWayDowntown]

I think that as a matter of law, any telephone surveillance that is done for more than 72 hours without warrant is unconstitutional.

Doesn't matter who the President is, doesn't matter what the program is called, doesn't matter who reports on it or who doesn't.

[Mr. Peabody]

72 hours is too fucking long

72 hours is actually the amount of time you have to get a warrant after the wiretap has been executed. It's not the amount of time you have to wait.

[George Gervin's Afro]

just get a warrant..jesus christ how hard is that?

[George Gervin's Afro]

gosh I can't believe democrats never said a word about echelon and the clinton admin.

Under Clinton, NY Times called surveillance "a necessity"
January 12th, 2006

The controversy following revelations that U.S. intelligence agencies have monitored suspected terrorist related communications since 9/11 reflects a severe case of selective amnesia by the New York Times and other media opponents of President Bush. They certainly didn’t show the same outrage when a much more invasive and indiscriminate domestic surveillance program came to light during the Clinton administration in the 1990’s. At that time, the Times called the surveillance “a necessity.”

“If you made a phone call today or sent an e-mail to a friend, there’s a good chance what you said or wrote was captured and screened by the country’s largest intelligence agency.” (Steve Kroft, CBS’ 60 Minutes)

Those words were aired on February 27, 2000 to describe the National Security Agency and an electronic surveillance program called Echelon whose mission, according to Kroft,

“is to eavesdrop on enemies of the state: foreign countries, terrorist groups and drug cartels. But in the process, Echelon’s computers capture virtually every electronic conversation around the world.”

Echelon was, or is (its existence has been under-reported in the American media), an electronic eavesdropping program conducted by the United States and a few select allies such as the United Kingdom.

Tellingly, the existence of the program was confirmed not by the New York Times or the Washington Post or by any other American media outlet – these were the Clinton years, after all, and the American media generally treats Democrat administrations far more gently than Republican administrations – but by an Australian government official in a statement made to an Australian television news show.

The Times actually defended the existence of Echelon when it reported on the program following the Australians’ revelations.

“Few dispute the necessity of a system like Echelon to apprehend foreign spies, drug traffickers and terrorists….”

And the Times article quoted an N.S.A. official in assuring readers

“...that all Agency activities are conducted in accordance with the highest constitutional, legal and ethical standards.”

Of course, that was on May 27, 1999 and Bill Clinton, not George W. Bush, was president.

Even so, the article did admit that

“...many are concerned that the system could be abused to collect economic and political information.”


where in the article does it say clinton did this without warrants?

[Ocotillo]

where in the article does it say clinton did this without warrants?

Rule # 1 in Republican debating points: If you have no argument, smear Bill Clinton.

[gtownspur]

where in the article does it say clinton did this without warrants?


You're kidding.

[Extra Stout]

where in the article does it say clinton did this without warrants?
Are you suggesting that the Clinton Administration might actually have gotten warrants for every electronic conversation and transaction in the US?

Because that's what the article says Echelon was collecting.

[George Gervin's Afro]

Are you suggesting that the Clinton Administration might actually have gotten warrants for every electronic conversation and transaction in the US?

Because that's what the article says Echelon was collecting.


And the Times article quoted an N.S.A. official in assuring readers

“...that all Agency activities are conducted in accordance with the highest constitutional, legal and ethical standards.”

Bush and the boys have flaunted the fact that they interperet the president's powers in the time of war to not be bound by the consitutional safeguards.

this is a power grab and you know it..

[Yonivore]

And the Times article quoted an N.S.A. official in assuring readers

“...that all Agency activities are conducted in accordance with the highest constitutional, legal and ethical standards.”

Bush and the boys have flaunted the fact that they interperet the president's powers in the time of war to not be bound by the consitutional safeguards.

this is a power grab and you know it..
Well, Clinton's NSA said it...it must be true. After all, his was the most ethical, legal, and constitutional presidency in the history of the country.

[FromWayDowntown]

Well, Clinton's NSA said it...it must be true. After all, his was the most ethical, legal, and constitutional presidency in the history of the country.

So, wait -- are you then arguing that the Bush Administration should get a pass here because, well, Clinton got away with it?

[Yonivore]

So, wait -- are you then arguing that the Bush Administration should get a pass here because, well, Clinton got away with it?
I think the two programs are fundamentally different.

The NSA program is surveilling international calls from known or suspected terrorists to wherever they may be calling -- including the United States.

Echelon recorded electronic transmissions indiscriminately.

And while both administrations are on record as claiming the programs are legal and constitutional, not to mention the obligatory ethical, I was more referring to the Clinton administration's NSA statement not being entirely consistent with the reputation of the Clinton administration.

I don't recall raising much of a fuss over Echelon.

[Ocotillo]

The NSA program is surveilling international calls from known or suspected terrorists to wherever they may be calling -- including the United States.



Or so they say..........

Without accountability, all we have is his word and that of whoever is President in the future.

Opponents of the NSA program say put the wiretaps on, just be sure to get a warrant from the FISA court.

[Ya Vez]

from the 60 minutes transcripts....

If you made a phone call today or sent an e-mail to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency and four English-speaking allies: Canada, Great Britain, Australia and New Zealand.

The mission is to eavesdrop on enemies of the state: foreign countries, terrorist groups and drug cartels. But in the process, Echelon's computers capture virtually every electronic conversation around the world.

How does it work, and what happens to all the information that's gathered? A lot of people have begun to ask that question, and some suspect that the information is being used for more than just catching bad guys.

(Footage of satellite; person talking on cell phone; fax machine; ATM being used; telephone pole and wires; radio towers)

KROFT: (Voiceover) We can't see them, but the air around us is filled with invisible electronic signals, everything from cell phone conversations to fax transmissions to ATM transfers. What most people don't realize is that virtually every signal radiated across the electromagnetic spectrum is being collected and analyzed.

How much of the world is covered by them?

Mr. MIKE FROST (Former Spy): The entire world, the whole planet--covers everything. Echelon covers everything that's radiated worldwide at any given instant.

KROFT: Every square inch is covered.

Mr. FROST: Every square inch is covered.

[Ya Vez]

isn't that warrantless surveillance...

[Ocotillo]

Clinton has been out of office since 2001. I can't hop into a time machine and go back and demand an end to the program.

But as the old saying goes, two wrongs don't make a right.....

[Yonivore]

Clinton has been out of office since 2001. I can't hop into a time machine and go back and demand an end to the program.

But as the old saying goes, two wrongs don't make a right.....
Actually, I think Echelon continues.

Both programs -- though, just like any other surveillance tool, is subject to abuse -- are constitutional, legal, and ethical (if used properly). There is no evidence to the contrary.

Clinton haters believed he was using Echelon illegally and Bush haters believe he is using the NSA Program illegally.

Funny thing is, Clinton didn't prevent shit with Echelon...so, what was he doing with the intelligence.

[Phenomanul]

from the 60 minutes transcripts....

If you made a phone call today or sent an e-mail to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency and four English-speaking allies: Canada, Great Britain, Australia and New Zealand.

The mission is to eavesdrop on enemies of the state: foreign countries, terrorist groups and drug cartels. But in the process, Echelon's computers capture virtually every electronic conversation around the world.

How does it work, and what happens to all the information that's gathered? A lot of people have begun to ask that question, and some suspect that the information is being used for more than just catching bad guys.

(Footage of satellite; person talking on cell phone; fax machine; ATM being used; telephone pole and wires; radio towers)

KROFT: (Voiceover) We can't see them, but the air around us is filled with invisible electronic signals, everything from cell phone conversations to fax transmissions to ATM transfers. What most people don't realize is that virtually every signal radiated across the electromagnetic spectrum is being collected and analyzed.

How much of the world is covered by them?

Mr. MIKE FROST (Former Spy): The entire world, the whole planet--covers everything. Echelon covers everything that's radiated worldwide at any given instant.

KROFT: Every square inch is covered.

Mr. FROST: Every square inch is covered.

Why not use such as system to catch sexual predators then?

Or theives.

[Yonivore]

Why not use such as system to catch sexual predators then?

Or theives.
Because when you get away from foreign intelligence, it is a violation of the fourth amendment protections against unreasonable search and seizure.

That's part of the problem with the opponents to the NSA Program and Echelon, they thing terrorists are a law enforcement issue and not a national security issue.

[RandomGuy]

in times of war you listen in to enemy conversations without warrants.... are we not in a war? Is not america a battlefield now....?

We are not at war.

The last formal declaration of war was over 50 years ago.

We were and are fighting a "war" on drugs that has killed more people than Osama has ever dreamed of, and somehow we managed to not shred the bill of rights.

[RandomGuy]

gosh I can't believe democrats never said a word about echelon and the clinton admin.

Under Clinton, NY Times called surveillance "a necessity"
January 12th, 2006

The controversy following revelations that U.S. intelligence agencies have monitored suspected terrorist related communications since 9/11 reflects a severe case of selective amnesia by the New York Times and other media opponents of President Bush. They certainly didn’t show the same outrage when a much more invasive and indiscriminate domestic surveillance program came to light during the Clinton administration in the 1990’s. At that time, the Times called the surveillance “a necessity.”

“If you made a phone call today or sent an e-mail to a friend, there’s a good chance what you said or wrote was captured and screened by the country’s largest intelligence agency.” (Steve Kroft, CBS’ 60 Minutes)

Those words were aired on February 27, 2000 to describe the National Security Agency and an electronic surveillance program called Echelon whose mission, according to Kroft,

“is to eavesdrop on enemies of the state: foreign countries, terrorist groups and drug cartels. But in the process, Echelon’s computers capture virtually every electronic conversation around the world.”

Echelon was, or is (its existence has been under-reported in the American media), an electronic eavesdropping program conducted by the United States and a few select allies such as the United Kingdom.

Tellingly, the existence of the program was confirmed not by the New York Times or the Washington Post or by any other American media outlet – these were the Clinton years, after all, and the American media generally treats Democrat administrations far more gently than Republican administrations – but by an Australian government official in a statement made to an Australian television news show.

The Times actually defended the existence of Echelon when it reported on the program following the Australians’ revelations.

“Few dispute the necessity of a system like Echelon to apprehend foreign spies, drug traffickers and terrorists….”

And the Times article quoted an N.S.A. official in assuring readers

“...that all Agency activities are conducted in accordance with the highest constitutional, legal and ethical standards.”

Of course, that was on May 27, 1999 and Bill Clinton, not George W. Bush, was president.

Even so, the article did admit that

“...many are concerned that the system could be abused to collect economic and political information.”


I googled ECHELON.

Anybody care to take a guess about whether this op-ed peice fits the "cherry-picking" "clinton bashing" modus operendi of 95% of conservative diatribes?

ECHELON was around looooong before Clinton and was a relic of the cold war.

Clinton didn't initiate it, nor did he extend what was in essense a FOREIGN intelligence gathering operation to include DOMESTIC traffic without a warrant.

Your weak-ass opinion peice didn't bother with that, did it?

It was either a f***ing lazy-ass article or a deliberately misleading article, and somehow THAT is supposed to justify Bush's machtergreifung?

[ChumpDumper]

Year UKUSA treaty starting Echelon was drafted: 1947

Clinton's birth year: 1947

This is no coincidence.

[Hook Dem]

chevy...tahoe?
Nope!!!! Only has a 26 gal. tank.

[Ya Vez]

ahhh random... yes 60 minutes is a such a right wing rag.... lol

[Ya Vez]

another echelon article from CBS ....

random guy needs google lessons ..

http://www.cbsnews.com/stories/2000/02/24/60minutes/main164651.shtml

(CBS) Everywhere in the world, every day, people's phone calls, emails and faxes are monitored by Echelon, a secret government surveillance network. No, it's not fiction straight out of George Orwell's 1984. It's reality, says former spy Mike Frost in an interview broadcast on 60 Minutes on Sunday, Feb. 27.

"It's not the world of fiction. That's the way it works. I've been there," Frost tells CBS News 60 Minutes Correspondent Steve Kroft. "I was trained by you guys," says the former Canadian intelligence agent, referring to the United States' National Security Agency.

The NSA runs Echelon with Canada, Britain, Australia and New Zealand as a series of listening posts around the world that eavesdrop on terrorists, drug lords and hostile foreign governments.

But to find out what the bad guys are up to, all electronic communications, including those of the good guys, must be captured and analyzed for key words by super computers.

That is a fact that makes Frost uncomfortable, even though he believes the world needs intelligence gathering capabilities like Echelon. "My concern is no accountability and nothing, no safety net in place for the innocent people who fall through the cracks," he tells Kroft.

As an example of those innocent people, Frost cites a woman whose name and telephone number went into the Echelon database as a possible terrorist because she told a friend on the phone that her son had "bombed" in a school play. "The computer spit that conversation out. The analystwas not too sure what the conversation was referring to, so, erring on the side of caution, he listed that lady," Frost recalls.

Democracies usually have laws against spying on citizens. But Frost says Echelon members could ask another member to spy for them in an end run around those laws.
For example, Frost tells Kroft that his Canadian intelligence boss spied on British government officials for Prime Minister Margaret Thatcher. "(Thatcher) had two ministers that she said, quote, 'they weren't on side,' unquote...So my boss...went to McDonald House in London and did intercept traffic from these two ministers," claims Frost. |"The British Parliament now have total deniability. They didn't do anythingWe did it for them."

America politicians may also have been eavesdropped on, says Margaret Newsham, a woman who worked at Menwith Hill in England, the NSA's largest spy station. She says she was shocked to hear the voice of U.S. Sen. Strom Thurmond (R.-S.C.) on a surveillance headset about 20 years ago. "To my knowledge, all (the intercepted voices)...would be...Russian, Chinese... foreign," she tells Kroft.

The exposing of such possible abuses of Echelon will surely add to the growing firestorm in Europe over the system.

On Feb. 23, the European Parliament issued a report accusing the U.S. of using Echelon for commercial spying on two separate occasions, to help American companies win lucrative contracts over European competitors. The U.S. State Department denies such spying took place and will not even acknowledge the existence of the top secret Echelon project.

Rep. Porter Goss (R.-Fla), chairman of the House Intelligence Committee, which has oversight of the NSA, does acknowledge that the U.S. has the capability to pick up any phone call, and that even his own conversations could have been monitored.

But Goss says there are methods to prevent the abuse of that information. "I cannot stop the dust in the ether...but what I can make sure, is that...the capability is not abused," he tells Kroft.

[RandomGuy]

ahhh random... yes 60 minutes is a such a right wing rag.... lol

actually, dipshit, I was referring to the william tate op-ed peice you quoted. I had hoped that bit was clear.

[jochhejaam]

Democrats are majoring on the minor issues (Walmarts) and minoring on the major issues (Terrorism) -Jack Kelly-



Judicial impropriety


JUDGE Anna Diggs Taylor illustrates why Democrats cannot be trusted with political power in time of war.

Judge Taylor, who is the chief judge of the federal district court in Detroit, ruled Aug. 17 that it is unconstitutional for the National Security Agency to listen in, without warrants, on telephone conversations between terror suspects abroad and people in the United States.

Her ruling was praised by Senate Democratic leader Harry Reid, House Democratic leader Nancy Pelosi, and other prominent Democrats.

"With a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do," the New York Times gushed in an editorial Aug. 18.

But the Times was pretty much alone in its opinion that Judge Taylor's decision was "careful" and "thoroughly grounded." (surprise)

In its editorial the same day, the Washington Post said Judge Diggs' decision "is neither careful nor scholarly, and is hard-hitting only in the sense that a bludgeon is hard-hitting."

"There is poor reasoning, and then there is head-spinningly, jaw droppingly poor reasoning," said the Washington Times.

By Aug. 20, the New York Times was backtracking. "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," wrote the Times' Adam Liptak in a news story.

On Wednesday, the Times published an op-ed by University of Wisconsin law professor Ann Althouse which described Judge Taylor as "a law unto herself."

"For those who approve the outcome, the judge's opinion is counterproductive," Ms. Althouse said. "It will be harder to defend upon appeal than a more careful decision. It suggests there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush."

Activist judges like Ms. Taylor who attempt to impose their political views by fiat pose a significant danger to the constitutional separation of powers, Ms. Althouse said.

The Times' discomfort increased when Judicial Watch discovered that Judge Taylor served on the board of a foundation which gave $125,000 to the Michigan ACLU, the lead plaintiff in the case, and did not disclose this apparent conflict of interest. (such integrity)

"Judge Taylor's role at a grant-making foundation whose list of beneficiaries includes groups that regularly litigate in the courts is … disquieting," the Times acknowledged in an editorial Thursday.

This wasn't Judge Taylor's first brush with judicial impropriety. In 1998, she tried to take from Judge Bernard Friedman (who'd been awarded it on the customary blind draw), the case concerning affirmative action policies at the University of Michigan's law school. She gave up the attempt when Judge Friedman complained loudly, in public.

Even if Judge Taylor had been awarded the case in the blind draw, it would have been improper for her to hear it, because her husband is a regent at the University of Michigan.

Judge Taylor was appointed to the federal bench by Jimmy Carter in 1979. Her cavalier attitude toward conflict of interest rules, and her tendency to use her position to impose by fiat her political views regardless of what the law says are, alas, not rare among Carter and Clinton appointees to the federal bench.

Judge Taylor's excesses are not likely, in this instance, to harm the republic. Indeed, her atrocious reasoning behind a decision shaky on the merits increases the high likelihood it will be overturned on appeal.

Of more significance is what the uncritical embrace by Democrats of Judge Taylor's decision portends for Democrats. (poor reasoning and even the truth pose no obstacle to democrats who readily jump on every bandwagon that rails against the President).

We suffered on Sept. 11, 2001, the most devastating attack ever on our soil. It likely would have been repeated this month, were it not for the program Judge Taylor wants to terminate.

President Bush has made mistakes in his conduct of the war on terror. But thanks in part to Judge Taylor's ruling, voters this November will be asking themselves whether they would rather be governed by a political party that thinks Islamic terror is the greatest threat to Americans, or by a political party which is more concerned about Wal-Mart.

I don't think Democrats will like their answer.

[ChumpDumper]

Oh just quit whining and appeal.

[jochhejaam]

Oh just quit owning Judge Taylor and the liberals and appeal.

Fixed it for ya.

[ChumpDumper]

Nah, it's whining.

What has really happened?

Nothing.

[Nbadan]

The reasoning in this case maybe questionable, but for the first time it puts the ball in the administration's court to answer why it needs to circumvent FISA law in domestic intelligence surveillance cases, a point the administration has never wanted to clearly elaborate on before.

[RandomGuy]

Again, Echelon was and is still different from what Bush was doing, which was taking it one step farther than the law allows.

I still am a bit uncomfortable with what I have read of Echelon as well. The clinton-bashers still haven't fessed up that it wasn't Clinton who created Echelon...

[RandomGuy]

Activist judges like Ms. Taylor who attempt to impose their political views by fiat pose a significant danger to the constitutional separation of powers, Ms. Althouse said.

...

"Judge Taylor's role at a grant-making foundation whose list of beneficiaries includes groups that regularly litigate in the courts is … disquieting," the Times acknowledged in an editorial Thursday.



I think you point out one of the strengths of the "liberal media" that really differentiate it from the "conservative" media.

Liberal media actually will give some space to opposing opinions.

Anybody care to take a guess as to when Fox news might give a liberal commentator a show?

Anybody care to take a guess as to when Rush Limbaugh will give more than 10 seconds to anybody who might disagree with him in any meaningful way?

Simply doesn't happen. That is the real danger from the conservative movement in the US in my opinion. The liberal media myth is simply another tool used in an attempt to homogenize what you hear into one-sided pablum.