Federal Judge Orders Halt to NSA Wiretapping

A federal judge has ruled the wiretapping unconstitutional. Next up, SCOTUS...

Justice Anna Diggs Taylor, why do you hate freedom? :laugh4:

http://www.washingtonpost.com/wp-dyn...700650_pf.html
http://www.cnn.com/2006/POLITICS/08/....ap/index.html

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Originally Posted by Washington Post

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.

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."

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For the more lawyerly minded, her opinion from FindLaw:
http://fl1.findlaw.com/news.findlaw....sa81706opn.pdf

The backlash against the "unitary executive" is beginning. Most presidents have tried to some degree to increase the power of their branch. This president perhaps doing so more than most with the claim of being in a "war on terror" as an excuse. As more people grow out of their fear of being labelled traitors and unpatriotic for criticizing this "war president" the pendulum will start swinging back the other way. Some of the things this president has done are pretty blatant; such as declaring a "right" to ignore laws if he wants to do so, even while he's signing them, and, as in the case above, ignoring the Constitution altogether, even when a special court has already been set up (the FISA court) to allow him to do pretty much what he did anyway without the court.

Whew! Someone in a position of authority is challenging King George!

'Bout time, methinkes.

Hehe a woman to show some balls.
About time, we were getting worried for you yanks.

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Originally Posted by Aenlic

The backlash against the "unitary executive" is beginning. Most presidents have tried to some degree to increase the power of their branch. This president perhaps doing so more than most with the claim of being in a "war on terror" as an excuse. As more people grow out of their fear of being labelled traitors and unpatriotic for criticizing this "war president" the pendulum will start swinging back the other way. Some of the things this president has done are pretty blatant; such as declaring a "right" to ignore laws if he wants to do so, even while he's signing them, and, as in the case above, ignoring the Constitution altogether, even when a special court has already been set up (the FISA court) to allow him to do pretty much what he did anyway without the court.

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I don't think it was an "excuse" so much as rationalization in action. That label suggests that Bush was seeking that power anyway and would have used any excuse to justify appropriating such power -- a suggestion that I believe is unfair.

The President, rightly, believes it to be his job to protect his citizens as effectively as possible. It's an all-too-easy choice to push for expediency of action, believing your own motives to be just, and over-step the bounds of the office. The pendulum effect does tend to correct things, and it is at the heart of the balance of power built into the Constitution.

Bush is not the first, and will not be the last, war-time President to succumb to the allure of expediency. I do not, however, doubt his intentions. But I am also glad that the Constitional system is robust enough to be self-correcting. While I agree with Bush's aims, some of his methods (Padilla being held without counsel; routinely side-stepping FISA when only a very few specific efforts along those lines were justified and not a blanket policy, etc.) have crossed the pale and need redress.

First and foremost, I'm glad this order has been stayed- it needs better oversight, not suspension.

Secondly, I expect that the 6th Circuit to overturn this on the grounds that the plaintiffs didnt have adequate standing- the judge's rationalization on that matter seemed quite strained to me. Further, virtually all national security law "experts" I have heard from think her decision was poorly reasoned in general.

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Originally Posted by article

"Regardless of what your position is on the merits of the issue, there's no question that it's a poorly reasoned decision," said Bobby Chesney, a national security law specialist at Wake Forest University who takes a moderate stance on the legal debate over the NSA program. "The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in."

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How do the plaintiffs not have adequate standing? They are American citizens with the inalienable right to privacy, and the executive order/law they challenged was infringing upon that right. So how do they lack adequate standing? Bogus, man.

Illegal, unwarranted wiretapping does need suspension, permanently. :stop: Not "oversight." Better "oversight" is already in place and more than functional--its called a warrant from a judge.

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Originally Posted by Seamus

I do not, however, doubt his intentions.

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Unfortunaltely, I think we have an obligation as Americans to question his every intention and motive.

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Originally Posted by danfda

How do the plaintiffs not have adequate standing? They are American citizens with the inalienable right to privacy, and the executive order/law they challenged was infringing upon that right. So how do they lack adequate standing? Bogus, man.

RE: Bush [added]

Unfortunaltely, I think we have an obligation as Americans to question his every intention and motive.

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The question of standing is one of legal definition. To bring suit without it being dismissed, you must have a prima facie claim that you have been harmed. I am not sure if the level of "harm" involved rises sufficiently, but that is a matter for the circuit court -- its beyond my thin legal training.

There is no inalienable right to privacy in the Constitution. The guarantees of the 4th and 5th ammendments thereto do, IMPLICITLY, place some value on privacy -- and it is reasonable to assume that a person's privacy should only be infringed with reasonable cause to believe some wrong had occurred. The question is where is the best place to draw that line when it comes to issues of national defense. I would prefer a greater resort to prior-warrants myself, at least where American citizens and legal residents are concerned.

To question motive and intent, yes; but to question from an assumption of wrongdoing until proven otherwise is unreasonable. Seek facts, evaluate, compare with law and principle yes, but I am reluctant to assume that any President is thinking of their own power first and their duties second -- I see the problem as being that it is too easy to conflate the two.

Liberals will be the death of us all. I guess they don't realise that the "radical" muslims will kill them as well.

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Originally Posted by Devastatin Dave

Liberals will be the death of us all. I guess they don't realise that the "radical" muslims will kill them as well.

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Live free or die.

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Originally Posted by whyidie

Live free or die.

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Oh brother...:juggle2:

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Originally Posted by Devastatin Dave

Liberals will be the death of us all. I guess they don't realise that the "radical" muslims will kill them as well.

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Radicals in general are a bad thing, be they Muslim or otherwise.

I just don't feel that fear of some radical with a bomb somewhere should strip me of my personal freedoms (of which there are precious few) for "security" purposes. It is a risk I am willing to take. I am confident that my government does its honest best to prevent terrorism and chaos, and I am confident that the government can do so without illegal wiretaps and the like. 9/11 was a terrible day, an event so bad that hopefully something similar never happens again. Would 9/11 not have happened had we all been ruthlessly subjected to strict laws regarding behaviour, speech, personal posessions, religion, and bedtimes where arrests can come at any time with little or no reason? Likely no, but who would want to live under that regime? The Iraqis celebrated us (briefly) for toppling Saddam's similarly oppressive government, remember.

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Originally Posted by Seamus

The question of standing is one of legal definition. To bring suit without it being dismissed, you must have a prima facie claim that you have been harmed. I am not sure if the level of "harm" involved rises sufficiently, but that is a matter for the circuit court -- its beyond my thin legal training.

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True enough. But I think that their claim was more along the lines of "defend those that cannot defend themselves" sort of thing. But I see your point. I am no lawyer either; I'm your guy for information regarding bacterial reproduction, not law. And with regards to the inalienable right to privacy, you're right--it was not stated exactly as such in the Constitution. That said, I still deem it to be an inalienable right precisely because privacy was of such implicit value. Probably personal opinion. There is hardly any privacy left in this country, and what little we have should be treasured, not bartered for some additional sense of security. Again, personal beliefs. :2thumbsup:

And I just really don't like where GWB's administration is taking us. Sometimes I think monkeys pounding on a keyboard could come up with better foreign and domestic policies...:wall:

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Originally Posted by danfda

How do the plaintiffs not have adequate standing? They are American citizens with the inalienable right to privacy, and the executive order/law they challenged was infringing upon that right. So how do they lack adequate standing? Bogus, man.

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Because they had absolutely no reason to think that they were ever eavesdropped on- and if they were, how did it damage them? It didnt afaik.

I doubt this decision will stand unfortunatley.......... Bush's old boys club for a supreme court will allow Bush to reign freely........... so anyone know any good towns in out great northern neighbor ~:cheers: ~:thumb:

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Because they had absolutely no reason to think that they were ever eavesdropped on- and if they were, how did it damage them? It didnt afaik.

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I don't know about you, but someone watching people weirds me out, government official or otherwise. The damage is in the fact that their will to keep their lives private was violated w/o that violation being warranted. People who nose their way into my business bother the heck out of me.

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Originally Posted by Kanamori

People who nose their way into my business bother the heck out of me.

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Well, good luck proving standing in a court of law on those grounds. Maybe you'd get lucky and get this judge.
"Yes your honor, I'd like to sue my neighbor for maybe spying on me. No, I don't have any idea if they did or didn't- but I'd like to sue them anyhow." :wink:

There's very little doubt that the 6th Circuit will overturn this- no matter what anyone thinks on its actual legality.

I wasn't commenting on who would win the case or why. I was saying that easdroping is a harm itself; its harm is not based on how embarassing something is. It was more a comment that nosey people are jack*****.

The truely scary thing is (in a recent CNN poll) that 54% of Americans see nothing wrong with unwarrented wire taps. There in lies the problem, that they do not fully comprehend the probability of abuse that such actions by an unobserved group would allow.

Personally, i have no doubt that once the oversight committees are allowed to review the unwarranted taps they will find that most of them were used against members of the opposition's political party and interests (peace movement members, NAACP, pro-UN types, anti-Bush agenda people in general) were all being listened in on. That the taps in fact had little to nothing to do with terrorists, but instead to get away with what Nixon was unable to ('cause he got caught).

Still, the taps remain in place - as the administration and unJustice Department challenge the ruling and pray that in November the Dems don't gain a majority in the House or Senate. They hope to delay the next ruling until after the elections .... atleast. That will allow them to continue to monitor their political opponents, and clean-up, centralize and destroy all the negative evidence that will come out if the Dems get lucky.

Those that still believe that one political party is somehow more competent than the other at conducting the safety for the nation, should at some time consider that there are 10-20 times as many terrorists today than prior to our invasion of Iraq. And that now they have more secure bases to work from than ever before, many in that new democracy we created - Iraq.

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Originally Posted by Xiahou

Because they had absolutely no reason to think that they were ever eavesdropped on- and if they were, how did it damage them? It didnt afaik.

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So your logic is what the little old lady doesn't know, won't hurt her?

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Originally Posted by orangat

So your logic is what the little old lady doesn't know, won't hurt her?

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Originally Posted by link

In law, standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged. In the United States, for example, a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there. To put it simply, the party suing has to have something to lose if the law is left on the books. The party suing must have something to lose in order to sue unless they have automatic standing by action of law.

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link
Clear enough? It's not my logic- it's the judicial system.

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Originally Posted by Xiahou

link
Clear enough? It's not my logic- it's the judicial system.

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ah
So its just a procedural objection then. You don't see unauthorised phone taps being itself wrong or do you?

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Originally Posted by orangat

ah
So its just a procedural objection then. You don't see unauthorised phone taps being itself wrong or do you?

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Ah but that is the issue - is the phone taps unauthorized or are they unconstitutional.

If the wire tap follows the procedures of the law and the requirements and meets the specifications of the law as monitored by the FISA court then the wire-tap is not un-authorized. In fact under the current laws those wire-taps are within the statues of the law.

If it violates this process then the wiretap is indeed unauthorized and can be unconstitutional.

From reading this thread I wonder if some are confusing unauthorized with un-constitutional.

For the warrantless wiretaps to be unauthorized, the agency must have violated the process as stipulated in the law as it was designed. Evidence does indeed point to a conculsion that the government has not been following the procedure and the requirements under FISA.

Now if the arguement is that such a law is unconstitutional - then one must demonstrate that the law is unconstutional. All laws are prone to abuse by the authorities, but that does not make the law unconstitutional.

:bump:
The Senate Judiciary Committee has just passed this gem:
http://blog.wired.com/27BStroke6/s2453.pdf
sponsored by Sen. Specter, which is changing the scope of the FISA act and legalizing warrantless wiretaps.

From Wired:
http://www.wired.com/news/technology...?tw=wn_index_1

I'll see if I can come up with a better source.

I encourage all US .Orgsters to contact their senators ASAP and express their concerns about this. If they are one of the lucky third up for re-election, you may want to mention that Nov. 7th is fast approaching.

So much for that wacky Fourth Amendment. :wall:

Why are Americans so afraid that the government is going to be listening to their international calls with terrorists? Oversight for this program has existed forever and no one can show a case where it was done without cause.

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Originally Posted by Vladimir

Why are Americans so afraid that the government is going to be listening to their international calls with terrorists? Oversight for this program has existed forever and no one can show a case where it was done without cause.

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I have no problem with the government listening to my calls, as long as the executive clears it through the judicial first. Oversight has existed forever, and now they are trying to remove the oversight requirement. That is the problem.

Edit-> better link from the WashingtonPost
http://www.washingtonpost.com/wp-dyn...201252_pf.html

Who was it said that a nation which chooses security over freedom deserves neither? Some US president I think.... how times change :inquisitive:

Still, the balance between the arms of government should be a concern for all citizens, and an executive that plays fast and loose with one constitutional right can do the same with others. Then one day you'll wake up and find you've got none left at all.

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Originally Posted by drone

I have no problem with the government listening to my calls, as long as the executive clears it through the judicial first.

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Hello,

The above is confused. Executive Branch authority is not bound to or derived from the Judiciary. It is Constitutionally distinct and empowered to operate in its own sphere. This sphere includes national security as noted in Article II of the Constitution: that this implicitly entails foreign intelligence gathering has also been a consistent legal interpretation. Two simple examples:

United States v. Truong (1980)

Spoiler Alert, click show to read: 

Part of the Government's argument:

"The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs."

The Court's agreement:

"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."

United States Foreign Intelligence Surveillance Court of Review: Sealed Case No. 02-001 (2002):

Spoiler Alert, click show to read: 

The Court Held:

" The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."

The 2002 Sealed Case was decided by the FISA Appellate Court of review. It is a Superior Court to U.S. District Justice Anna Diggs Taylor. That Justice Taylor did not address this case or Truong or Katz or any of the other clearly worded Court opinions that contradict her own ruling is one reason why a stay was so quick in coming after her decision. Detroit Justice Taylor's "ruling" was an example of political penchant trumping legal reasoning. This is why judge shopping contra the legally obvious is a bad idea.

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Originally Posted by danfda

I'm your guy for information regarding bacterial reproduction...

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So you’re an expert on liberals? Sorry I couldn’t resist.:laugh4:

@Pindar

I'm not familiar with the Truong case, but from that snippet you posted, it seems like he was specifically targeted for surveillance (phone tapped, apartment bugged). I would think that this would be different than a widescale wiretapping program, as it does not discriminate between a particular target and the innocents. The wiretap program seems to be more of a fishing expedition.

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Originally Posted by drone

@Pindar

I'm not familiar with the Truong case, but from that snippet you posted, it seems like he was specifically targeted for surveillance (phone tapped, apartment bugged). I would think that this would be different than a widescale wiretapping program, as it does not discriminate between a particular target and the innocents. The wiretap program seems to be more of a fishing expedition.

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Hello drone,

The relevant portion of the Truong decision does not revolve around the target of surveillance, but rather the power of the Executive to conduct foreign intelligence: whether this applies to a particular agent, organization or nation is irrelevant.

Aside from the embarrassment that is the Taylor ruling, the problem with the NSA coverage is the bulk of reporting has been ignorant of law in general and the case law in particular.

The question is what do they do with the information they glean from surveillance that yields no national security threat? Shred it, pass it on to another agency with a wink and a nudge, start an FBI file and send it to Bill Clinton. I hate to think that all those phone sex calls I made for my independent study on telecommunicators working conditions would lead some guy I never met to think of me as a pervert. I can't sleep now.

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Originally Posted by Pindar

The relevant portion of the Truong decision does not revolve around the target of surveillance, but rather the power of the Executive to conduct foreign intelligence: whether this applies to a particular agent, organization or nation is irrelevant.

Aside from the embarrassment that is the Taylor ruling, the problem with the NSA coverage is the bulk of reporting has been ignorant of law in general and the case law in particular.

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So basically what you are saying, is that the Executive can pretty much do whatever it wants when it comes to foriegn intelligence, all because of Article II? If this is the case, wouldn't the FISA law technically be unconstitutional? Why would this new bill even matter? Is Congress just wasting it's time (more so than usual)?

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Originally Posted by drone

So basically what you are saying, is that the Executive can pretty much do whatever it wants when it comes to foriegn intelligence, all because of Article II? If this is the case, wouldn't the FISA law technically be unconstitutional? Why would this new bill even matter? Is Congress just wasting it's time (more so than usual)?

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No, that is not what I have said. FISA was passed in 1978 in the wake of Watergate. It was signed by President Carter. Even so, Carter then and every President thereafter has maintained that the bill did not impinge on the Executive's constitutional plenary powers.

Maybe this will help clarify: the three respective branches of government are distinct. Each derives its power from the Constitution. Because of this there is an inherent empowerment within their respective spheres. For example: the President could not write an Executive Order that nullified a Legislative statute. Similarly Congress could not issue a statue removing the President's right to veto. Based on Article II of the Constitution the President is considered preeminent in foreign policy. Federalist No. 74 illustrates the point: "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Understanding this basic power of the Executive is why SCOTUS in the 1972 Keith Case refused to assert that there is a warrant requirement for surveillance of the agents of foreign powers operating in the United States:

"We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents. Nor does our decision rest on the language of 2511 (3) or any other section of Title III* of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security."

This Constitutional distinction is also the reason Congress stated in the Omnibus Crime Control and Safe Streets Act of 1968:

"Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."

Thus FISA may expand Presidential power (by adding another voice of government to an issue) but it cannot impinge on the President's inherit Constitutional power.

Well, regardless of whether it's legal to wire-tap without FISA court approval or not, in the interests of national security, I think we can all agree that inforamtion gleaned from such a widespread, secretive and unregulated program should not be used for normal law enforcement (matters where national security is not a concern). All of us, that is, except Attorney General Gonzalez who just issued an opinion that he feels he has the right to use the same wiretaps to track down drug trafficking, overseas casinos, even medical marijuana usage.

If you don't want people to claim abuse of privelege, somebody ought to inform Gonzalez that he's the Attorney General, not Apollo Apotropaeus.

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Originally Posted by Gelatinous Cube

Sorry to come so late in the threat with a quote from so early, but this brings up a good point. With only a 4% majority, the entire populace of the USA is represented as giving its tacit permission for such shenanagins.

To fix our country, and to stop the divisive votes that do nothing but give that one side with 51% reason to gloat whilc giving the other 49% become, for all intents and purposes, politically appressed, we should make it so that a "majority" is at least 75%.

Think about it: Not a presidential candidate in the last 20 years would have been elected if he had to get a 75% majority. We would actually have to get politicians that take a popular stand meaninful to the entirety of the people, instead of the extremist stands that rely on value voters, oppressed minorities, and a 1% swing vote.

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Or, we would devolve into chaos when government cannot act to enforce the laws of the land and Congress empties as terms expire and nobody manages to achieve the 75% required to be elected for the office.

Do you really think this a good idea GC? 30% of Americans think the US government was complicit in the WTC bombings in some fashion. That means we wouldn't even be able to launch an investegation into whether it really was Al-Queda, as we don't have a 75% majority that believes we were attacked.

I think you'd be damned hard pressed to get 75% of Americans to agree on anything.

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Originally Posted by Gelatinous Cube

Sorry to come so late in the threat with a quote from so early, but this brings up a good point. With only a 4% majority, the entire populace of the USA is represented as giving its tacit permission for such shenanagins.

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There is nothing wrong with unwarranted wire taps. There are no shenanigans. You are confused.

Well, Pindar, you'd know more of this than I, so I'll defer to your recollection. But there's really two issues here on the table. The first is should the Justice Department have the right to use warrantless wiretaps in investegating possible upcoming acts of terrorism and other threats to security. Here, I say yes, they should (and I think they do, hence the FISA courts). The second is whether they should be able to use information they encounter in this effort to prosecute individuals on crimes that may not have had anything to do with security threats, such as an individual engaging in online gambling with an offshore casino or tax evasion through Cayman Island banking. I would say here, no. There is no imperative for security in this case, so why should the Justice Department be allowed to sidestep the 4th ammendment? Last I heard, Attorney General Gonzalez (or his aides) and the Senate Judiciary committe had locked horns over this issue.

Is this true, and if it is, where do you stand? (or would you stand?)

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Originally Posted by Gelatinous Cube

...we should make it so that a "majority" is at least 75%.

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Then we will never, ever get anything done.

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Originally Posted by Don Corleone

Well, Pindar, you'd know more of this than I, so I'll defer to your recollection. But there's really two issues here on the table. The first is should the Justice Department have the right to use warrantless wiretaps in investegating possible upcoming acts of terrorism and other threats to security.

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I don't think you have to defer to my opinion. I presented some basic case law which is clear enough. The NSA warrantless surveillance is legally mundane. It only became an issue after the Times article in late 2005. You may recall that even through all the ballyhoo no one on Capital Hill called for the program to end. That alone is telling. One needs to make distinction between political posturing and legal reality.

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The second is whether they should be able to use information they encounter in this effort to prosecute individuals on crimes that may not have had anything to do with security threats, such as an individual engaging in online gambling with an offshore casino or tax evasion through Cayman Island banking. I would say here, no. There is no imperative for security in this case, so why should the Justice Department be allowed to sidestep the 4th ammendment? Last I heard, Attorney General Gonzalez (or his aides) and the Senate Judiciary committe had locked horns over this issue.

Is this true, and if it is, where do you stand? (or would you stand?)

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I have never addressed this. I do not know if this is true. This is separate from the base legal question and speaks to procedure. However, the idea of investigation X uncovering malfeasance Y meaning Y is unprosecutable because it is not the original X seems strained. For example, if a car is pulled over on suspicion of a DUI and the officer finds bound children stuffed in the trunk he would and should be able to arrest the driver.