Judge nixes warrantless surveillance

[RandomGuy]

Judge nixes warrantless surveillance

DETROIT (AP) - A federal judge ruled Thursday that the government's warrantless wiretapping program is uncons utional 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 Cons ution.

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Cons ution," 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 cons ution is for the terrorists and against freedom?

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

[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 uncons utional.

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 cons utional 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 Cons ution. . . . "

"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 Cons ution. So all 'inherent powers' must derive from that Cons ution."

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 head-agenda-to-promote-president-to-divine-right-King interest

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

Just wait til November when the mother ers 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 head, who is the real target because he has discredited the paranoid checks and balances of the Cons ution.

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 uncons utional.

[ChumpDumper]

It is now time to attack the judge.

[Obstructed_View]

"discrediting the president."

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

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 uncons utional.

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 cons utional 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 , August 17, 2006 · A federal judge in Detroit says the Bush administration's domestic wiretap program violates both federal law and the Cons ution 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, cons utional 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 cons ution 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 uncons utional.

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 uncons utional.

[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:

...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 Cons ution 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, pla udes ("There are no hereditary Kings in America and no powers not created by the Cons ution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Dale Carpenter:

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 cons utional exercise of congressional power, and that therefore the NSA program is both illegal and uncons utional. 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:

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 and Paul Mirengoff 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 uncons utional.

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 uncons utional, 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 uncons utional, 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.

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

Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications cons utes 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 cons utional 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 ac ulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not cons utionally 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. Mitc . 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 cons utional 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 Cons ution. 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 uncons utional. 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 cons utional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is uncons utional.

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 Cons ution. 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 pla udes.

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 cons utional 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 Cons ution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the iden ies 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 cons utional 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 cons utional 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 uncons utional.

Score! Three pointer!