In Today’s Episode of “Those Activist Courts”!

The NSA eavesdropping program is unconstitutional? That’s unpossible!

A federal judge on Thursday ruled that the U.S. government’s warrantless wiretapping program is unconstitutional and ordered it ended immediately.

In a 44-page memorandum and order, U.S. District Judge Anna Diggs Taylor, — who is based in Detroit, Michigan –struck down the National Security Agency’s program, which she said violates the rights to free speech and privacy.

Here’s the full ruling. My favorite quote:

The president of the United States … has undisputedly violated the Fourth in failing to procure judicial orders.

Oh, wait, this one is good, too:

Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

Yes, upholding the Constitution, which is a thing I believe this president may have heard of in his oath of office. Nice that he’ll be held to that. But no doubt, Bush being Bush, he’ll try to find yet another way to get around it. I do so yearn for a president who does not see the US Constitution as damage, to be routed around whenever possible. I’d like to think I’m not alone in this.

100 thoughts on “In Today’s Episode of “Those Activist Courts”!

  1. I do so yearn for a president who does not see the US Constitution as damage, to be routed around whenever possible. I’d like to think I’m not alone in this.

    You’re not.

    This isn’t the end of the fight. As you say, he’ll no doubt try to find some way around it. But gods, it’s nice to get an occasional win.

  2. Goddoink! I’m going to have to reset my brain to make sure this isn’t a fabrication. Say, who appointed Judge Diggs anyway? I’m sure Fox News will know by the time I get home.

    Whose got the pool for how soon we get jokes like “Get’s her Diggs on the President” or some such tomfollery? I think I need to place a bet on 6 hours.

  3. I believe she’s a Carter appointee. Which of course means that her ruling should be entirely ignored, because everyone knows that judges appointed by Democratic presidents aren’t real judges.

  4. That’ll be the lead with tie-ins about how Democrats are Bin Laden lovers who hate Amurika. Sigh. I have a feeling we’ll also get to hear about the wonderful legislation to recall or fire Federal Judges (as well as disparaging remarks on this Judge).

    I see appeals and stays in the future, but it’s damn good to hear this opinion said out loud at least once.

  5. I give the NSA ’til the end of the day to file an appeal. We won’t have heard the end of this until the Supremes have weighed in.

  6. Bush pledged to “preserve, protect, and defend” the Constitution; he never said he was going to uphold it. I believe that this is all the wiggle room the administration needs to beat this thing.

    Time to send some bucks to the ACLU.

  7. JimW:

    “We won’t have heard the end of this until the Supremes have weighed in.”

    This much, of course, is entirely true.

  8. Hmm… So, Bush willfully and knowingly ignored Congress when he violated FISA by implementing this program in the first place, and we think he will somehow change his mind when the Judicial branch chimes in with “no, really, it’s illegal”? Why do we think any court will have better luck than Congress?

  9. Scalzi

    But no doubt, Bush being Bush, he’ll try to find yet another way to get around it….I believe she’s a Carter appointee. Which of course means that her ruling should be entirely ignored, because everyone knows that judges appointed by Democratic presidents aren’t real judges.

    Of course it won’t be ignored, but I’ll bet dollars to donuts it will be appealed, which is a standard response.

    If it survives the full range of judicial review, I fully expect it to be followed.

    And my personal opinion is that Judge Taylor is wrong.

  10. Um, isn’t this the same NSA wiretapping of international calls that has been going on for about thirty years? I mean, you used to hear about this the last time we got involved with terrorists back in the late 1970’s and early 1980’s. I had taken it for granted that it was still going on.

    Has anyone actually heard of anyone (besides a terrorist, that is) that was actually harmed by this stuff? It seems to me that you have to have a little balance. On one hand you have what is, as far as I’ve heard, a pretty damned minor imposition on people’s privacy (especially since it must be mostly automated) and on the other you have the very real possibility (and maybe even certainty) of saving thousands of innocent lives. What percentage of Americans even make international calls? What percentage of those are calling suspected terrorists?

  11. Coolblue:

    “But I’ll bet dollars to donuts it will be appealed.”

    That’s a bet I won’t take. No doubt the appeal will be in by the end of the day. Which is, of course, how it should be.

  12. From Rob:
    “Has anyone actually heard of anyone (besides a terrorist, that is) that was actually harmed by this stuff? It seems to me that you have to have a little balance. On one hand you have what is, as far as I’ve heard, a pretty damned minor imposition on people’s privacy (especially since it must be mostly automated) and on the other you have the very real possibility (and maybe even certainty) of saving thousands of innocent lives. What percentage of Americans even make international calls? What percentage of those are calling suspected terrorists?”

    Oh, of course. The old “if you have nothing to hide, why do you care?” story.

    I don’t think I can be calm enough to refute that. You are wrong. My privacy is very important.

  13. Rob

    It seems to me that you have to have a little balance. On one hand you have what is, as far as I’ve heard, a pretty damned minor imposition on people’s privacy

    It doesn’t really matter how small of an infraction it is. The President is head of the Executive Brance which means he (or she) can lawfully execute all power lawfully conferred to the office. So either he has the power to do this or he doesn’t.

    I quite agree he should have this power, but if the courts ultimately determine that he does not inherently have this power than it is up to Congress to give it to him, or up to us to change the constitution.

    And that’s the bottom line. And it is important that stuff like this gets settled in the right way.

  14. Rob: The difference is that they’re now doing it without warrants. The 30 years of wiretapping you refer to was (as far as we know) done with warrants and in compliance with FISA.

    The advantage of warrants? Supervision. What if the Bush admin decided to wiretap not only terrorists but political opponents? Dick Cheney says Lamont’s primary victory over Lieberman is a victory for Al Queda, so he probably thinks the Lamont campaign is a legitimate target for NSA wiretaps.

    No judge would grant such a wiretap, that’s our protection against unreasonable searches. If the administration is exempt from warrant requirements, they can set up wiretaps that judges wouldn’t allow.

    If you’re a dihard Bush-fan who believes the President would never do anything so undemocratic, replace “Bush administration” with “Hilary Clinton administration” and see if you’re still OK with the president having this power.

  15. DPWally

    If you’re a dihard Bush-fan who believes the President would never do anything so undemocratic, replace “Bush administration” with “Hilary Clinton administration” and see if you’re still OK with the president having this power.

    Been there, done that

    In 1978 … Attorney General Griffin B. Bell testified before a federal judge about warrantless searches he and President Carter had authorized against two men suspected of spying on behalf of the Vietnam government.

    and

    “The Department of Justice believes — and the case law supports — that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general” – President Clinton’s Deputy Attorney General Jamie S. Gorelick

    and

    One of the most famous examples of warrantless searches in recent years was the investigation of CIA official Aldrich H. Ames, who ultimately pleaded guilty to spying for the former Soviet Union. That case was largely built upon secret searches of Ames’ home and office in 1993, conducted without federal warrants.

    not to mention

    In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects.

    Previous administrations also asserted the authority of the president to conduct searches in the interest of national security.

    And don’t forget, this very program aided the British in catching the recent terrorist conspirators.

  16. You know, I can’t find any articles confirming that the claim that unwarranted data mining is illegal was dismissed by the courts.

    The closest I could find is that the government asserted State Secrets Privilege in an attempt to dismiss the class action lawsuit against AT&T. However, the district court rejected that motion to dismiss. That was on July 20th and I haven’t seen any articles about what might have happened since then.

    So I would appreciate a link to an article explaining what has happened to the unwarranted data mining law suit. Thanks.

    (Not surprising, of course, but the Justice department has already announced they plan to appeal Judge Anna Diggs Taylor’s decision.)

    And don’t forget, this very program aided the British in catching the recent terrorist conspirators.

    Also, can I please have a reference for this. I did not come across in my of my reading that any of the British bombers had called the United States (which would be the only way that this very program could have aided the British).

    Thank you.

  17. Rob said:
    “Has anyone actually heard of anyone (besides a terrorist, that is) that was actually harmed by this stuff?”

    Well, that’s the point. The court here says that “[T]he injuries alleged by Plaintiffs are “concrete and particularized”, and not “abstract or conjectural.”

    Actually, I’m just going to quote this whole paragraph here (from page 24):

    Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.emphasis added

    The court is saying that, in fact, the plaintiffs are actually being hurt by this program. They are all professionals who are required to speak to people in the Middle East as part of their job, and some of the people they need to speak to are afraid to talk to them, because of this program. This has caused problems for these Americans. Some of them are reporters, who need to research stories. Some of them are attorneys, who need confidentiality to represent their clients.

    We must also ask just how necessary this program is if, as cited above, “there have been no prosecutions, no requests for extensions or retroactive approvals of warrants[.]”

    As near as I can figure, this program is both harmful, and useless.

    K

  18. Cool Blue

    And don’t forget, this very program aided the British in catching the recent terrorist conspirators.

    Oh, no it didn’t. What aid was rendered to the British was through FISA warrants.

  19. CoolBlue… I note that every example you quoted was for a warantless physical search… I’d say there are some notable differences between a physical search and a wiretap.

  20. CoolBlue: I don’t doubt your first factoid. I’m sure Bush is not the first president to attempt warrantless searches and not the first to be caught doing it.

    The rest are questionable. I’ve never heard of a previous president, of either party, claiming he had the authority to use warrantless searches.

    The FISA law was passed specifically because the Carter administration said the previously-existing wiretap laws made it too difficult to get warrants. If Carter thought the law didn’t apply to him, why would he request a change in the law?

  21. Bill Marcy said:
    “Hmmm, isn’t it the Supreme Court that decides on the constitionality of issues?”

    Yes. After the District Court and the Court of Appeals have a shot at it. I’m not sure what you think you’re trying to say here.

    DPWally said:
    “And don’t forget, this very program aided the British in catching the recent terrorist conspirators.”

    Um, can I get a cite for that? This court seems to think (as I cited above) that there have been no arrests based on this program.

    JC said:
    “You know, I can’t find any articles confirming that the claim that unwarranted data mining is illegal was dismissed by the courts.”

    It’s a data-mining charge in this case. The court in this case allowed the state-secrets defense on a claim of data-mining, so it wasn’t a complete victory for defenders of civil rights.

    K

  22. CoolBlue:

    “Oh, and did I forget to mention that the claim that the Data Mining activity was illegal was dismissed?”

    I believe that it was dismissed because the government has not actually admitted that it is going on in any public forum, and as such would require an actual disclosure of state secrets to verify. So she didn’t rule that its okay, just that you cant file a lawsuit against an activity that you have no idea is actually happening. Thats my understanding, at least.

  23. Bill – the SC has final say over the constitutionality of issues, but federal courts can rule on them as well. If the NSA (i.e. the defendants) doesn’t appeal, Judge Taylor’s decision will be final and binding – at least within the 6th Circuit. The NSA can appeal to a full panel of 6th Circuit, or they could request an appeal to the Supreme Court. If she doesn’t grant a stay, the NSA can request one from the 6th Circuit panel, or from Justice Stevens, prior to granting cert.

  24. Kevin Q,

    Actually, to date there have been no arrest from that alleged terrorist plot of the UK citizens.

    Of course it is starting to look more and more like the UK ‘terrorists’ were just a bunch of stupid idiots talking smack in some chat room, but that doesn’t stop CoolBlue from claiming loudly that they are terrorists and were stopped by NSA eavesdropping. He probably still believes there were WMDs in Iraq.

  25. Kevin Q said:
    DPWally said:
    “And don’t forget, this very program aided the British in catching the recent terrorist conspirators.”

    Wasn’t me. CoolBlue said that.

  26. CoolBlue,

    Yeah, that was an interesting article in the Washington Times.

    The 1978 case, against two specific individuals and I can’t find if this was before or after FISA was approved. FISA and the CISA Court was specifically created to handle this issues.

    As for the James Gorelick quote, all I can find is this statement, not if this was an actually program. Heck, A. Gonzales swore up and down that there was no problem with the current wiretapping program and other programs. Doesn’t mean it’s correct. The difference is the current AG signed off on an actual program.

    The Ames case, again, this was against an individual and there was other evidence (gathered with proper warrants and under the rules of CIA employment) that pointed to him. Since he pleaded guilty the legality of the searches weren’t challenged (by the plaintiff).

    And President Clinton can also say he has the power and is thinking of implementing a program. But as far as I know, no program was actually initiated.

    Your last point has already been questioned.

  27. Emily:

    I don’t think I can be calm enough to refute that. You are wrong. My privacy is very important.

    Please quantify. Your privacy is as important to you as risking how many lives? Sorry, I know that’s unfair, but the point is you do have to balance these things.

    We can’t have zero privacy and we can’t have total privacy. It just seems to me that this particular program isn’t very intrusive to very many people, considering the possible gains (actually, there are already gains, if you consider that terrorists are forced to use alternate communications to the greatest degree possible – in that sense the program works whether they actually listen in or not).

    I don’t see how FISA can work for this, either. I mean, you don’t know the phone call is going to take place until it does. When otherwise unsuspected John Q Public calls a known al Qaeda associate, you would never have been able to get a warrant before the fact because there was no probable cause. And even if getting a warrant is a matter of only five minutes, it could easily be too late.

    Now, I’ve heard some assert that you can go back and get the warrant after the fact through the FISA court. I don’t know if this is true or not, but I don’t see how it matters. Are you who are so gung ho about your privacy saying that it’s OK for the NSA to listen in, as long as they get a warrant afterwards? How can that possibly work?

    I’m not trying to be unreasonable here, or partisan. I assume this sort of thing went on under Clinton and other presidents and I think they did the right thing if it did. In a time of war you have to balance privacy and security more carefully than you would otherwise. I’ll change my mind if anyone can show another reasonable way to achieve the same goals. I can’t see how the FISA court is good enough when you don’t know the identity of one of the parties until the last second.

  28. Anonymous at 4:39 said:
    “[t]here are already gains, if you consider that terrorists are forced to use alternate communications to the greatest degree possible – in that sense the program works whether they actually listen in or not.”

    So it worked, by making it harder for us to listen in? I’m not sure how that works.

    Anonymous also said:
    “Are you who are so gung ho about your privacy saying that it’s OK for the NSA to listen in, as long as they get a warrant afterwards? How can that possibly work?”

    As DPWalley mentioned above, the benefit of warrants, either before hand or during the interception, is supervision. It is a way to let the Executive branch know when it is overstepping its bounds. And it can work the way it’s supposed to work, by requiring those spying on Americans to get a warrant within 72 hours of wiretapping them.

    Anonymous also said:
    “I don’t see how FISA can work for this, either. I mean, you don’t know the phone call is going to take place until it does.”

    Then how does domestic wiretapping work? It works because those doing the wiretapping know where one of the parties is, and taps their line. That’s how it works here, too. The NSA has a list of “suspected terrorists and terrorist sympathisers,” and whenever they get a telephone call, the NSA listens in. However, it is illegal for the government to listen in to the calls of an American without a warrant, so the NSA is supposed to not listen in to those conversations without getting a warrent first, or taking advantage of FISA’s post-action warrants. The President ordered the NSA to disregard that, and listen in on Americans’ conversations, anyway.

    This is how the NSA achieves the same goals: They listen in anyway, and then go to the FISA court within 72 hours and file for a warrant. Or, they monitor who is calling “suspected terrorists,” and get a warrant to tap that American’s phone. Instead, they ignored the law.

    K

  29. With regard to the comment that you have to balance privacy right – we already do that. The line as to where you have to go to a judge (domestic) or FISA (international/domestic) to listen in is set by the Constitution. No unreasonable searches means that reasonable searches are fine. So NSA can look down on us from their satellites, and listen into international calls and listen into our calls, provided they clear it with the FISA court afterwards (and I believe FISA has never refused a warrent).

    So you aren’t really defending the wiretaps, you are defending the right of the Executive Branch (NSA) to redraw the line themselves, without oversight.

    Checks and balances are so integral to the foundation of the government – I don’t understand why some people are so gung ho to eliminate one of the most precious freedoms we have – the freedom to be left alone. Is that worth nothing to them?

    We have told the NSA that they can listen into calls whenever they want – all they have to do is go to the FISA court within 72 hours and ask if it was ok. The FISA court has *always* said yes. Is the problem that the government does not have enough lawyers? Is the paperwork too difficult?

    On the one hand, we have Constitutional protections against unreasonable searches. On the other, a few hoops some lawyers have to jump through, knowing that it will all get rubber stamped in the end. Is that worth *less* than the 4th Amendment?

  30. Anonymous said:

    I don’t see how FISA can work for this, either. I mean, you don’t know the phone call is going to take place until it does. When otherwise unsuspected John Q Public calls a known al Qaeda associate, you would never have been able to get a warrant before the fact because there was no probable cause. And even if getting a warrant is a matter of only five minutes, it could easily be too late.

    Now, I’ve heard some assert that you can go back and get the warrant after the fact through the FISA court. I don’t know if this is true or not, but I don’t see how it matters. Are you who are so gung ho about your privacy saying that it’s OK for the NSA to listen in, as long as they get a warrant afterwards? How can that possibly work?

    Yes, under FISA the gov’t has up to 48 hours after the fact to get a warrant, if something really does come up so quickly that they couldn’t get the warrant beforehand. And the reason this matters is, we are not delusional, we know that protecting the country in these times of instant communications sometimes requires immediate action–but this way, the gov’t has to be willing to stand behind its actions, and prove it really had reasonable cause. And if it doesn’t, the fruits of that “unreasonable search” gets thrown out, and can’t be used against the target.

  31. Emily,

    Giving the government the authority to listen in on everybody’s conversations all the time is so open to abuse I can’t understand why you wouldn’t see that.

    The government is supposed to have a reason before they listen, and a judge needs to agree with that. FISA most certainly allows the government to listen in to the conversation and get the warrant later. This is for the case where there is an immediate threat and there isn’t time to get a warrant. The government can listen in on the terrorist call, thwart the plan, and get the warrant after the fact.

    Bush and Gonzales didn’t want that. They wanted to listen in on every conversation all the time. Imagine the abuses that could come from that power. Personal vendettas, spying on the Democratic party, spying for certain businesses.

  32. Sorry, my previous comment was to anonymous who was replying to Emily. My comment was not directed to Emily.

  33. With regards to the NSA helping the British, The cite was from the Scotsman, from Aug 11th

    MI5 and Scotland Yard agents tracked the plotters from the ground, while a knowledgeable American official says U.S. intelligence provided London authorities with intercepts of the group’s communications.

    Phillip J. Birmingham notes that this was with the FISA court’s approval and perhaps he’s correct.

    Steve Buchheit

    As for the James Gorelick quote, all I can find is this statement, not if this was an actually program.

    Jamie Gorelick. He’s a she. Not in that way, she was born a she.

    Anyway, this assertion by President Clinton resulted in the capture of Aldrich Ames as I mentioned

    The Ames case, again, this was against an individual and there was other evidence

    See, now, I just don’t get it. Are warrentless searches OK or not?

    I don’t know but I bring up the past assertions of this power not because I think Clinton, Carter and FDR were right, but because it has only become an issue now that Bush is doing it.

    Despite this, I am quite willing to let the courts decide. But please, don’t argue against Bush’s use and simply excuse past use.

    And I would point out one more thing: since this power has been claimed in the past, and even after FISA, there is no reason to disparage Bush for claiming to have this power as well. This is especially true when the FISA Court itself doesn’t know that he doesn’t have the power

    In a 2002 opinion about the constitutionality of the Foreign Intelligence Surveillance Act (FISA) and the USA Patriot Act, the [FISA] court wrote: “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.”

    PeterP referring to the dismissal of the “Data Mining” claim says

    I believe that it was dismissed because the government has not actually admitted that it is going on in any public forum, and as such would require an actual disclosure of state secrets to verify.

    You are correct: The Judge said she didn’t know enough about it and, as a result, decided that the defendants didn’t either.

    I brought this up specifically because the last time we visited this issue people just knew that it was illegal (I ain’t namin’ names, mind you). But it’s pretty clear that even a judge who was sympathetic to the defendents had to conclude there wasn’t enough information to know that.

    And finally, there’s Q who said

    I note that every example you quoted was for a warantless physical search… I’d say there are some notable differences between a physical search and a wiretap.

    Yeah. I know. Both are under the jurisdiction of the FISA court. And some would argue that a physical search is more ergregious given that the NSA doesn’t actually listen to all the conversations it collects, but real people have to physically go through your stuff to do a search.

    But again, I have to point out the tendency of some to excuse the Democrat and condemn the Republican for the very same activity. Or, perhaps, just excuse Clinton and condemn Bush.

    I condemn neither and think that in the cases of Carter, Clinton and Bush, all were acting within what they believed to be their power and in the best interests of the US.

    Now we’ll see if they were right or not.

    But I do regret the unfortunate timing of such scrutiny: just at a time when we are facing a very deadly, ruthless and relentless enemy.

    But sometimes I think that will only become a true statement for some when a Democrat is President.

  34. CoolBlue


    And some would argue that a physical search is more ergregious given that the NSA doesn’t actually listen to all the conversations it collects, but real people have to physically go through your stuff to do a search.

    But again, I have to point out the tendency of some to excuse the Democrat and condemn the Republican for the very same activity. Or, perhaps, just excuse Clinton and condemn Bush.

    Am I missing something? Because it looks like that translates to: “Some would make argument X to explain their different view. I will acknowledge that, but then ignore it and claim it’s all partisanship.” I suspect I missed a step here, but it read very oddly.

  35. Nice result, crappy opinion.

    The problem for the Bush admin isn’t that the program is unconstitutional, it’s that FISA is constitutional. And the program clearly violates FISA. Their only argument was that the AUMF somehow circumvented FISA, which is also easily dismissed.

  36. Steve Brady

    The problem for the Bush admin isn’t that the program is unconstitutional,

    Of course, Judge Taylor claimed it was, which is quite unlikely. And it has yet to be demonstrated.

    The word “unreasonable” is problematic for the defense. The Supreme Court has carved out whole classes of circumstances under which a search is not “unreasonable” and therefore does not require a warrant. Ever had your car searched at a border crossing? How about your luggage searched while boarding a plane? Ever see a warrant in these cases?

    it’s that FISA is constitutional.

    We don’t know that either since it has never been challenged.

    And we are not likely to find out, at least not now. I’m pretty sure that a higher court will find that the defendants in this case do not have standing.

    Which will, if I’m right, just kick this issue down the road apiece.

    That is unfortunate because I really would like it settled now that it’s been brought up. The last thing I want is for partisans to bring this back up with the next President, who may be a Democrat (unlikely as that may be) who is hounded by Republican partisans. It is distracting to the commander-in-chief who must deal with a very real enemy.

    So I want it to be said that either the President has the power or Congress needs to confer it. Either way, let’s just get it done.

  37. CoolBlue,

    Again, you miss the entire argument. And if this assertion by Jamie Gorelick (having to type fast at work, sometimes things get missed) was a part of the Aldrich Ames case (to which I couldn’t find that link, but I’ll accept that it was) doesn’t make it okay. I refer to my statements about other evidence gathered legally with warrants and under the CIA employment rules. That Ames plea-bargained out ended any argument on those searches legality and any evidence gathered illegally wasn’t presented in court. That is, it wasn’t alright, but the case was settled. The person whom could have challenged refused to do so. That is also their right. Have I beaten this dead horse enough yet for you to see the entirety of the point? Nobody is making excuses, there is no political hand-waving or pass for either party. However, only those grieved could file in these cases, this is different that a wide sweep program that could affect everybody.

    The other point is that the cases you’ve thrown onto the wall don’t stick as they aren’t the same thing.

    Also, President Bush can claim he has the power. However that doesn’t mean he has the power, which was what this court case is about. The cases are also different in all the examples you’ve tossed up (from the one article) only one in four are close to being relevant. The other three were against specific individuals who were already under suspicion for acts against the state, not groups, not extending a fishing net. The last one (listening in on calls in troublesome housing projects) was never implemented as far as anybody knows. My guess is that it was a bluff. President Bush acted on this perceived power, and some of the people that could have been affected challenged this assertion This is what makes all the difference. As someone who seems to know law, you should understand that.

    That the FISA Court would publish a brief that only justifies their existence and the legality of the FISA laws, and reinstate that it is beyond the prevue of the FISA Court to challenge the legality of this program or look outside any case not brought before them, their statements make contextual sense. I would also remind you of some early retirements and one resignation from FISA over this issue.

    As for your political waffling (ie. This is only against poor heroic George, these people wouldn’t dare say it against a Democrat), I don’t by it. It’s an act intentionally to throw off the conversation.

    FISA works. The only reason not to use FISA is laziness or that the targets aren’t all legit. FISA has only refused a handful of requests.

    Also, and I just have to say this, this program is crap. As it’s been explained, the government only listens to conversations when one end is out of the country (this maybe a rhetorical argument for inclusion of any call routed through a satellite), and that’s it. No other FISA warrant is pursued. For anybody who thinks this is an effective program I have a big question for you. Wouldn’t you want to know whom that person in the US is calling next? Wouldn’t you want to, say, get a FISA Wiretap Order to follow that person’s calls both international to other people not on the watch list and maybe to other operatives here in the US? Yeah, this program is crap and doesn’t work.

    As for the NSA passing on intercepts of foreign calls, there isn’t anything new or illegal about this. That’s their damn job after all. See, there’s this program called ECHELON…

  38. Kevin_Q, I am trying to say, that until the Supremes rule it unconstitional, it is constitutional. Thats their function in the Grand Universe of American politics.

  39. So I want it to be said that either the President has the power or Congress needs to confer it.

    Ick, no. Whatever for? What is the need for warrantless wiretapping? Now I can certainly envision situations in which requiring a warrant before wiretapping *starts* would be problematic. But the law *already* addresses that problem.

    The Ames case, again, this was against an individual and there was other evidence
    See, now, I just don’t get it. Are warrentless searches OK or not?

    Not. All the emphasis on the constitution strikes me as a little weird, as my understanding is that wiretapping is just plain illegal–except in special circumstances, as laid out by law. Even if warrentless wiretaps are constitutional (as is probably the case), the president can’t just ignore the law with imputy. Well, actually it would appear that the fascist of an Attorney General is right and the president can simply ignore laws he finds inconvenient. But it’s not right, and it’s not good, and I sure don’t see anything about an electing a Monarch in the Constitution of the United States.
    As for Clinton, well, I’m willing to consider the possibility that he was also a criminal. I did catch a lie or two on the whitehouse website during the Clinton term, and not about the goings-on of the presidential penis neither.

  40. it’s that FISA is constitutional.

    We don’t know that either since it has never been challenged.

    And we are not likely to find out, at least not now. I’m pretty sure that a higher court will find that the defendants in this case do not have standing.

    Actually, lots of courts have dealt FISA and found no lack of congressional power to enact it. And FISA itself was a response to a Supreme Court opinion basically asking for it.

    And sure, lots of searches are reasonable without warrants. But most have to do with there being exigent circumstances (destruction of evidence, etc.). And they’re usually carefully drawn, and not “whenever the President feels like.”

    I honestly don’t know how they justify airport searches. Maybe it’s that pesky Commerce Clause.

  41. Hugh Hewitt (who has experience in national security jurisprudence in a previous administration) has posted some interesting legal insights on this decision.

    “Judge Taylor glancingly deals with SCOTUS’ Keith decision but doesn’t even bother to assess the FISA Appeals Court opinion in In Re Sealed Case, 2002 in which that panel of three federal judges skilled in this area of the law noted:

    It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: “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.” 407 U.S. at 321- 22.30 But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and “ordinary crime.” Id. at 322. It pointed out that “the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes.” Id.

    The main purpose of ordinary criminal law is twofold: to punish the wrongdoer and to deter other persons in society from embarking on the same course. The government’s concern with respect to foreign intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity. As we discussed in the first section of this opinion, the criminal process is often used as part of an integrated effort to counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a secondary objective;31 indeed, punishment of a terrorist is often a moot point.

    The judge doesn’t deal with this passage or other relevant passages not because they are dicta –they are– but because there is no answer to the logic and the obvious conclusion that the NSA program –wartime surveillance aimed not at prosecuiting law breakers but stopping terrorist attacks– is indeed not governed by the Fourth Amendment’s prohibitions.

    No doubt the judge ruled as she understood the Constitution, but she doesn’t understand the Constitution or the war, and her refusal to deal with a higher court’s on-point discussion telegraphs her intellectual insecurity about her “reasoning.” She will be reversed, most likely following a lengthy stay of her order. Implementation of the order would certainly disrupt ongoing surveillance of terrorists and thus endanger innocent lives, and the possibility of that harm should be sufficient to maintain the stay until higher courts intervene to reverse this absurd decision..”

    When you consider that argument and CoolBlue’s point regarding the word unreasonable and this decision doesn’t look like the same slamdunk that most posters here are trying to make it seem.

  42. Steve Buchheit

    As for the James Gorelick quote, all I can find is this statement, not if this was an actually program. Heck, A. Gonzales swore up and down that there was no problem with the current wiretapping program and other programs. Doesn’t mean it’s correct. The difference is the current AG signed off on an actual program.

    Actually, last time Cool Blue brought this up, we went over the fact that when Gorelick was speaking, FISA did not cover physical searches. It was amended to cover them afterwards, and the Clinton administration followed that law afterwards.

    Concerning FISA approval of these investigations:

    http://www.washingtonpost.com/wp-dyn/content/article/2006/08/11/AR2006081102053_2.html

    In the days before the alleged airliner bombing plot was exposed, more than 200 FBI agents followed up leads inside the United States looking for potential connections to British and Pakistani suspects. The investigation was so large, officials said, that it brought a significant surge in warrants for searches and surveillance from the Foreign Intelligence Surveillance Court, the secret panel that oversees most clandestine surveillance.

    One official estimated that scores of secret U.S. warrants were dedicated solely to the London plot. The government usually averages a few dozen a week for all counterintelligence investigations, according to federal statistics.

    The purpose of the recent warrants included monitoring telephone calls that some of the London suspects made to the United States, two sources said.

  43. Emily said:
    I don’t think I can be calm enough to refute that. You are wrong. My privacy is very important.

    Then Anon Said:
    Please quantify. Your privacy is as important to you as risking how many lives? Sorry, I know that’s unfair, but the point is you do have to balance these things.

    Now not to speak for Emily at all, but for myself, I feel like if you live in America, where we have a bill of rights that says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”, well, then all of them.

    That’s right, I think all the lives should be risked to protect my fourth amendment protection against unlawful search and seizure.

    Because freedom, actually, isn’t free. It might cost your life, or the life of your child. Even when you put it in very concrete terms, like: “You’d want people to be able to get liquids onto a plane even if it meant your 11 year old might die on that flight,” my answer remains the same. I don’t believe we’ll be catching any terrorists at TSA checkpoints anyway, but that’s an arguement for another day.

    They don’t get to take my freedom away – the terrorists or the government. My privacy, that’s part of my freedom. What I hear, over and over, is how I’m supposed to be afraid and give up my freedom – a little bit of privacy – for protection. I don’t believe in the power of that protection, and if taking it means I lose my freedoms, even just my ability to talk with my friend in France without being listened to, then I don’t want that protection.

    And there are a lot of crazy terrorists in the world. The ones here at home are calling Judge Diggs names already, making threats already. She might have thought about the risk that some domestic terrorist would decide she was an activist judge when she wrote that opinion. But she did the right thing, and did it anyway, even though it might make her life more dangerous.

    So she’s more than a little bit my hero today. In the midst of all the hate mail she’s bound to get, my daughter and I will send her an uplifting poem.

  44. Please quantify. Your privacy is as important to you as risking how many lives? Sorry, I know that’s unfair, but the point is you do have to balance these things.

    If you want to play quantity games, you make the first move. How many lives will this program save?

  45. The freedom to be left alone – in my person, in my home – is the absolute bedrock liberty, without which none of the others has any meaning. I can’t for the life of me figure out how the people defending this program, and this Administration, even define “freedom,” since they seem willing to overlook that bedrock issue.

    In comparing and contrasting the NSA program to other wiretap policies from the past, those same folks keep forgetting that FISA didn’t exist in FDR’s time, or Johnson’s time – or even for the first 2 years of Carter’s term.

    FISA addressed the claimed need for widespread, quick wiretaps, by allowing wiretappers to get warrants after the fact. As has been pointed out in other forums, FISA’s approval rate for after-the-fact warrants is something like 99.9% – hardly an onerous burden. FISA granted the government immense power to eavesdrop – but it also kept some control over that power, by requiring a warrent, which presumably would prevent wiretapping being used for purely political purposes.

    Bush’s NSA program evaded even that minimal oversight. And, considering the Bush Admin’s record so far in terms of honesty and the use of government resources to punish political opponents, why would you believe any Bush official who says they didn’t abuse their power?

  46. No Anonoymous, the bedrock Libery that we all have, and that guarantees all the others, is the 2nd AMendment, it seems strange that the Democrats have made that a priority for removal. No?

  47. Bill, I invite you to show me where on any Democratic party platform it says the removal of the 2nd Amendment is a priority. Until and unless you can (and you can’t), please refrain from making such obviously provably false, pointlessly inflammatory and generally idiotic statements. Discussing whether Democrats’ gun control policies are counter to the second amendment is one thing. Saying they plan to remove the second amendment is quite another.

  48. Discussing whether Democrats’ gun control policies are counter to the second amendment is one thing. Saying they plan to remove the second amendment is quite another.

    It’s also a red herring of the first order.

    Seriously, either the policy is wrong, or it’s right. if you can’t argue based on that, you’re not debating, you’re trying to derail the debate. I mean, what the hell is next? Interstate commerce?

  49. Anonymous Wrote:

    Please quantify. Your privacy is as important to you as risking how many lives? Sorry, I know that’s unfair, but the point is you do have to balance these things.

    Yes, and the thing we use to balance the needs of privacy and the needs of search is called a warrant. A warrant-less search does the opposite of balancing. The government is ALREADY getting a big advantage as the warrants can be obtained retroactively.

  50. “Bill, I invite you to show me where on any Democratic party platform it says the removal of the 2nd Amendment is a priority. Until and unless you can (and you can’t), please refrain from making such obviously provably false, pointlessly inflammatory and generally idiotic statements. Discussing whether Democrats’ gun control policies are counter to the second amendment is one thing. Saying they plan to remove the second amendment is quite another.”

    You are, of course, absolutely correct. Although, it’s hardly out of character in comparison to a number of comments I’ve read on this site….comments about the Bush Admin “shredding the constitution” or words to that effect. Hyperbole is, apparently, more permissible for some than for others……

    There is plenty of room for reasonable people to disagree about the constitutionality of the NSA warrantless wiretap program. I don’t have a strong opinion, other than to note a few simple facts:

    1. It’s hardly unprecedented.
    2. It’s highly targetted to an identifiable serious problem.
    3. The loudest complainers hate the president’s guts….not exactly an unbiased group.
    4. Yes, the judge is a democrat, with a reputation for being “liberal” (fright music added)
    5. Might the ACLU have engaged in a little “judge shopping”….? Oh perish the thought…
    6. None of the above means the judge was wrong. By all means let’s get this issue hashed out.
    7. Remember that one judge’s opinion is, in the long run, just that. It’s the review upstairs that matters.

  51. Yes, upholding the Constitution, which is a thing I believe this president may have heard of in his oath of office.

    What we have here is a semantic problem, clearly…he thought he was upholding the constitutional, and so he takes his walks every day.

    (This would explain why he’s so healthy, but a bit underwhelming on the civil liberties front.)

  52. Mule Face:

    “Hyperbole is, apparently, more permissible for some than for others…”

    Mule Face, meet Hamdi v. Rumsfeld. Hamdi v. Rumsfeld, Mule face. I’ll leave you two to make each other’s acquaintance. When you two are done chatting, Mule Face, I’m sure Rasul v. Bush would love to have a few moments. And let’s not forget ACLU et.al v. NSA/CIA, i.e., the suit under consideration in this entry, in which the judge ruled this administration acted contrary to the Constitution. It’s not hyperbole when you have a documented paper trail.

    For future reference: Snark is better when it’s at least tangentially related to fact.

    Thanks for playing.

  53. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
    I invite Bill Marcy to examine the last right enumerated in the 1st ammendment. I also invite him to consider petitioning his government for redress before raising an armed revolt.

    The 1st ammendment wins again!

  54. Actually, let’s not get into a debate about which is better, the first or the second amendment. Personally, I like them both and would wish to leave them largely unencumbered.

  55. My point was much less that the 1st ammendment is better than the 2nd (or more deserving of respect from government), but rather that the 1st ammendment lays the foundation of activity by citizens to correct government. The 2nd ammendment is a fall back for when the rights protected in the 1st ammendment prove insufficient. It is a flying butress against the high-wall of government responsiveness, not the foundation.

  56. Jeeze Bill, I knew you bush apologists are all getting desperate for any straw to grasp in your arguements allowing the U.S. to go down the path it has as of late, but holy shit.

  57. Scott:

    That may well be, but neither the first nor second amendment is on point to this dicussion, and the fact people are continuing to to discuss this validates Josh Jasper’s point of this being a red herring which serves to lead the discussion away from what’s actually relevant here.

    In other words: Table it, please.

  58. “For future reference: Snark is better when it’s at least tangentially related to fact.

    Thanks for playing. ”

    Hmmm…we used to have snark hunts when I was a kid on camping trips….or are you saying I suffer from hoof-in-mouth disease..????

    John, I read your cases……and no mention of constitution-shredding was to be found……perhaps I need to read about the Arthur Anderson/Enron case…..

  59. Mule Face:

    “and no mention of constitution-shredding was to be found”

    I’m not entirely sure how one can read Hamdi and not see such, but, you know, whatever.

    Unless you’re talking about actual physical shredding. In which case — you’re silly, you silly person, you.

  60. John:

    I AM a silly, silly, little equine….(tips in oats & sugar cubes are much appreciated)….

    Yes, I WAS comparing your literal treatment of the word “remove” to “shred”……you wordsmith you…..

  61. Mmmm…. sugar cubes.

    Point taken (now), although I’m not entire sure Bill meant “remove” like I meant “shred.” Though I could be wrong.

  62. Whatever your views on the NSA program, and there are reasonable arguments on both sides of the issue from the entire political spectrum, there seems to be pretty much unanimity among informed legal commenters that Judge Taylor’s opinion is deeply flawed. Here , for example, is an analysis from that well known right-wing site Daily Kos.

    The DOJ has already appealed the decision (is this what you mean by “getting around it?”) and been granted a stay. There is virtually no one that believes it will not be overturned by the 6th Circuit. Perhaps we should wait to break out the Champagne.

  63. On the actual substantive point of this thread…

    Check out today’s Washington Post editorial page. I would summarize it by saying – it would be nice to have a scholarly, well reasoned judicial analysis of why the NSA program is unconstitutional. Unfortunately, the judge failed to produce one. Perhaps the appellate court will help out.

  64. Fibian:

    “The DOJ has already appealed the decision (is this what you mean by ‘getting around it?’) and been granted a stay. There is virtually no one that believes it will not be overturned by the 6th Circuit. Perhaps we should wait to break out the Champagne.”

    I don’t drink, so I have no champagne in any event. In any event, there’s no unanimity in the opinion that it’s a poor ruling, although certainly some portions of the argument are stronger than others.

    I’ll hold off on guessing what the 6th will do until it does it; in any event, following the process of the law does not constitute getting around the Constitution. But then, that’s sort of the point.

    Mule Face: Here’s an editorial from a different newspaper calling the ruling “a careful, thoroughly grounded opinion.” There’s as little unanamity in editorial land as in legal analysis land. We’ll have to wait to see what the 6th thinks.

  65. “Um, isn’t this the same NSA wiretapping of international calls that has been going on for about thirty years? I mean, you used to hear about this the last time we got involved with terrorists back in the late 1970’s and early 1980’s. I had taken it for granted that it was still going on.

    Has anyone actually heard of anyone (besides a terrorist, that is) that was actually harmed by this stuff?”

    Yep, a man named Fred Hampton was murdered by the FBI, Illinois State Police, and Chicago Police through wiretaps and informants–there are others, do a search on “COINTELPRO” on google. You’re complacent.

    http://chickasawpicklesmell.blogspot.com/

  66. Matt,

    I think you are referring to “Echelon.” A google search is eye-opening.

    My understanding was that Echelon was originally used by the US government to eavesdrop on non-US citizens only. Laws prevented it to be used by the US government on US citizens. I always wondered, though, what would stop the UK from spying on US citizens and then giving that info to the NSA and vice-versa.

    With today’s supercomputers realtime voice recognition is possible for all of today’s telephone traffic. The problem is that this creates a massive amount of data. There are data-mining and filtering techniques which can be done to try to find the interesting bits of conversations, but I am skeptical that these work very well. It has been about ten years since I have worked with such rules-based expert systems so there may have been breakthroughs since then but I really don’t think so. Doing more of the same bigger and faster is not better.

    So I am skeptical that this program is very useful for global data-mining and the problem of potential abuse is very great. We can all imagine what could happen if the people running the program decide to use it for private use.

    It really comes down to this – if you totally trust the government then you’ll have no problem with this program.

    Personally I like what Madison or Hamilton said in the Federalist Papers:

    If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

  67. One brief outburst: I like all the amendments except Prohibition, and the Constitution itself. Go representative democracy!

    That said, I think “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” is pretty clear, and all interpretation hinges solely on the word “unreasonable”. The schism over what constitutes reasonable probable cause seems unlikely to be resolved in this forum, since on the one hand there are those who say “it is reasonable to sacrifice some freedom to protect the people”, and those who say “giving up any rights is the first step to giving up all rights,” and both arguments are sensible. My personal belief is that the weight of historical precedent indicates that governments are loath to give up any power once obtained, and so it is best not to allow them any power that is not REQUIRED for the safety of their citizens. Given that the previous FISA setup seems adequate, I think no alteration is required.

    As for constitutionality, it is clear that the intention of the framers was that a warrant would be involved in any “search” of a citizen or citizen’s property, which should preclude warrantless searches of CITIZENS (foreign nationals are on their own). There’s wiggle room in the wording, but to do so is patently a reinterpretation. The issue is similar to the presumption of innocence, on which the Court has been squarely on the side of the defendant (see Coffin v. United States). So the question is, do you think constitutionality should be based on the original intent of the framers, or on an updated approach for modern times? I’m a pretty strict Jeffersonian myself, but the big C is a living document, subject to the will of the people. So what is it?

  68. John,

    I’m not convinced your two examples detailing a lack of uninamity are the best to hang hopes upon. To begin with, the NYT is hardly a disinterested third party. Thanks to the recent Espionage Act ruling, the Times has a vested interest in a finding which sharply declares the NSA wiretapping illegal. Anything less weakens or removes a major support from any projected defense on their part, should the government decided to prosecute.

    Next, even Greenwald admits, “This is not the most scholarly opinion ever. It has argumentative holes in it in several important places.” Opinions with important holes tend to be overturned upon appeal, have legislation crafted to obviate them, or both. See also: the Massachusetts gay marriage ruling and the Kelo decision.

  69. This whole argument is probably going to be a victory for the administration and the GOP in general. The decision itself helps to focus on the the fact that the opponents of this administration do not take the war on terror seriously. Within the decision the judge refers to the war as ‘the war on terror of this administration’ (or words to that effect) which implies that she doesn’t consider this war a confrontation facing the country or nation as a whole, but rather as some kind of political chimera.

    Most of the relevant legal precedents which back up the NSA program descend from article II and the war fighting precedents which are further buttressed by the Authorization to Use Military Force (AUMF) passed by congress. That fact that this decision and most of the administrations critics tend to ignore these precedents only reinforces the impression that they don’t take this war seriously.

    Most american citizens alive today and all of them of legal voting age lived through the events of that horrible morning of September 11, 2001. There is a large empty hole in downtown Manhattan still and currently in theatres is a very popular movie reprising those events. The horrible memory of September 11th, the most deadly attack on U.S. domestic soil in the history of the country, lives in most americans to this day.

    I know that it is the reflexive instinct of the left to embrace an anti-war position ever since the collapse of the Vietnam war effort, but this war is not Vietnam. Most americans understand that. The enemy we’re engaged against is very real. They routinely cut off the heads of innocent americans, allies and collaborators, on video, and gleefully broadcast it. Until the left can redirect its focus back to defeating the enemy instead of defeating the war effort, the american people will not reward it with power.

  70. Excellent legal analysis of this decision at the following address.

    http://baseballcrank.com/archives2/2006/08/warlaw_the_nsa.php

    … However, Judge Taylor is undeterred by such precedent. First, she notes that certain basic outlines of the program have been made public and confirmed by the Administration (gliding over who forced this issue into the public eye), and notes that the plaintiffs are asking for a permanent injunction solely on the basis of the facts publicly admitted — utterly ignoring the possibility that more detailed discovery (if such a thing were not unduly intrusive of national security, which it obviously is) would bear on such things as the reasonableness of the government’s need to conduct such surveillance.

    Not true. Page 14-15 of the decision:

    Finally, Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP.9 Further, Defendants have have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have the supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP. Defendants have presented support for the argument that “it .. is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies.”10 Defendants cite to various sources to support this position. Consequently, the court finds Defendants’ argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.

    http://www.mied.uscourts.gov/eGov/taylorpdf/06 10204.pdf, emphasis mine.
    Now the judge does not appear to take into account the possibility of a defence requiring revealing state secrets when analyzing whether the plaintiffs have a prima fascie case. But, and IANAL, I don’t think possible defences are relevant to whether a prima fascie case can be established.

    The idea that the Administration’s public defense of its position under intense attack by the Times and others on the Left constitutes some sort of waiver of its position that the program’s secret details should not be further protected — or are not relevant to the program’s legality — is absurd.

    Sure. But that doesn’t appear to be what the Judge is saying. Now I agree that the decision muddles the distinction between the existance of defenses not relying on state secrets, and the non-existance of defenses relying on state secrets. But while the decision could be better written, I think the Baseball Crank is misreading it.

    The Baseball Crank does have a point that the defendants have not established they were actually surveilled. I’m not sure that’s strictly required for standing (IANAL), but it does bother me that the judge implies otherwise.

    I don’t really have anything to say about The Baseball Crank’s criticism of the Constitutional Analysis. However I do think the Baseball Crank goes a little off the rails when it comes to the Fourth Amendment.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Notice it’s not just a prohibition against unreasonable searches and seizures, but requires the people to be secure against the same. Which to me requires mechanisms to prevent unreasonable searches and seizures. FISA, for it’s faults, has such mechanisms. TSP — not so much. I don’t think much analysis is needed here. The government doesn’t even have an excuse — there is no legitimate need to proceed as TSP has done. Defenders of the administration have attempted to distract from this by making a case for the necessity of a spying regime–as if TSP is the only way to go about spying. It’s not.

  71. I know that it is the reflexive instinct of the left to embrace an anti-war position ever since the collapse of the Vietnam war effort, but this war is not Vietnam. Most americans understand that. The enemy we’re engaged against is very real.

    So were the vietcong. To be sure they didn’t pose any threat to the homeland, but the threat posed by Al-Quaeda is pretty minimal too. The average American citizen is very unlikely to be killed by Al-Quaeda. This is not to say that a group that has killed thousands in one go shouldn’t be taken seriously; of course they should. But as the casualties mount the American people are going to want to hear that the soldiers loosing their lives are accomplishing something of substance, and a catch-phrase isn’t going to cut it.
    The left will always be perceived as soft on crime/terror/drugs etc… regardless of how effective they actually are at addressing these issues. Because they don’t have the authoritarian, punitive attitude of the right. Nor do I think they should cultivate that attitude. But the right’s strength is also a weakness; they’re not capeable on delivering on their promises. They have, and will continue to betray the trust that was (foolishly) placed in them. Partly this is due to the incompetance of those currently in power, but partly it’s just the messiness of reality getting in the way. Given the current political realities the administration will have a very hard time shifting the blame to the lefties; not that they won’t try. The anger will find something to ground on sooner or later.

  72. “Jesus. What am I, a performing monkey?”

    My, what a lovely picture you paint….could you photshop something for us? Perhaps with a little cap & a cup?

    “Entertain the notion that Patterico may not be the most objective commentator regarding this particular ruling. ”

    Excellent point. Although gleefully linking the LAT & NYT editorial pages (highly partisan players) seems a bit self-contradicting….

    FYI – in your beloved NYT, Adam Liptak has an analysis piece in which actual lawyers (rather than editorial writers) discuss the ruling, in pretty universally negative terms. Again, this does not mean the bottom line of the ruling is incorrect – many of the law scholars quoted consider the program illegal – but the reasoning & scholarship in the ruling appears (I am no lawyer either) to be severely lacking.

    Ah well, we all agree the appellate court will have a shot at improving the situation

  73. John,

    Uh huh. You keep chasing that rainbow, Tim.

    You have no idea how happy it makes me to read you say that. I’d explain, but I’m feeling lazy.

    Love the new comment format. Much clearer.

  74. Tim

    This whole argument is probably going to be a victory for the administration and the GOP in general. The decision itself helps to focus on the the fact that the opponents of this administration do not take the war on terror seriously.

    I think you are correct in this, given that this particular program turns out to be quite popular among the American people, and the fact that a major terrorism plot was uncovered reminds voters just at the point when they are beginning to pay attention to the upcoming elections.

    LT

    They don’t get to take my freedom away – the terrorists or the government. My privacy, that’s part of my freedom. What I hear, over and over, is how I’m supposed to be afraid and give up my freedom – a little bit of privacy – for protection. I don’t believe in the power of that protection, and if taking it means I lose my freedoms, even just my ability to talk with my friend in France without being listened to, then I don’t want that protection.

    A beautiful and heroic statement. However, while you may echo the sentiments of Emily, you don’t get to speak for everyone. What’s more is that the President has been charged by Congress to protect the American people; whether they like it or not. The Authorization for unse of Military Foce is quite explicit on this matter

    Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

    Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

    Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

    Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

    Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it [r]esolved by the Senate and House of Representatives of the United States of America in Congress assembled, …

    For the President not to do his utmost to Execute what Congress has mandated would be a dereliction of duty.

    And when the next terrorist attack comes, believe me but the President will be cross-examined by everyone from you to the press and Congress as to what he did wrong in allowing it to happen.

  75. CoolBlue:
    “What’s more is that the President has been charged by Congress to protect the American people; whether they like it or not. (Authorization of the Use of Military Force arugument)”

    Actually, the administration’s argument isn’t so straight forward. Their argument is that Congress gave the President the Authorization to use Military Force against those who wish to commit acts of terrorism against US Citizens. Also, since this enemy doesn’t present or field a military force as defined by Geneva the charge to deter “acts” gives the President charge to combat non-traditional soldiers on and off the battlefield. Then, given that signal intelligence has been a component of our war machine, signal intelligence (and some of the other powers the President has assumed) is therefore a contingent “Military Force.” Since the Spanish-American War Electronic SigInt has been significant to the success of Military Force, electronic SigInt is critical to Military Force. Given that the use of Military Force is given to be successful against the opponent, it is therefore implied that the Congress authorized the President to use SigInt tools and methods. That’s a lot of steps, and not all of them lead to using SigInt on US Citizens, but that’s what this suit is meant to clarify. Also, all of the analysis of this ruling that I’ve heard, except for Fox News, all say that the first half of the ruling (which specifically targets this argument) will be upheld and was well written and reasoned. The second half of the opinion which argues the breach of the First and Fourth was more flowery and less scholarly. That part maybe struck down while leaving the first half intact.

    “For the President not to do his utmost to Execute what Congress has mandated would be a dereliction of duty.”

    Unless he breaks the law, which he’s not allowed to do (period).

    The President tells us that the “terrorists” (which that definition has certainly grown) attack us because they hate our freedoms, our liberty (I have a big disagreement with this because of my past training, but for this argument I will accept his premise). I just wish he would actually protect us instead of removing the reason why he believes the terrorists attack us (deny the enemy an objective).

    If we aren’t fighting for our freedoms, what the hell are we fighting for anyway? Survival with reduced freedoms gives the enemy a partial victory. I’m not willing to let them have that.

  76. For the President not to do his utmost to Execute what Congress has mandated would be a dereliction of duty.

    I must have missed that portion of the Fourth Amendment that said “Except if we’re dealing with terrorists, in which case, please disregard.”

    I am no lawyer either

    As soon as you feel compelled to utter this phrase, step back and ask yourself, “Do I really know what I’m talking about?”

    Tim, you should select your links based on more than “hey, this blogger hates liberals”. I mean, really–claiming that the ACLU would go judge-shopping and pick the Sixth Circuit?

    If you really believe that the Great Legal Hive Mind is united in hatin’ on this decision, you might try looking at sources other than anti-liberal blogs for your information.

    There’s a column at FindLaw which doesn’t have an ax to grind. I recommend it to people who haven’t already made up their minds and thus don’t wish to be confused by facts.

  77. Please quantify. Your privacy is as important to you as risking how many lives? Sorry, I know that’s unfair, but the point is you do have to balance these things.

    It must be a personality quirk, but I don’t mind quantifying such things. Doesn’t mean I’m any good at it, so take what I say with a rock of salt:
    First, the number of lives at risk isn’t a useful measure. Hundreds of lives are at risk every time I drive on the roads, but the actual risk to any one of those people is very, very slight. (I’m a conscientious driver and avoid having my car occupy the same space as anyone or anything.) So I’m going to reframe the question as “What cost to my privacy am I willing to pay for what increase to my security?”
    The usual answer is “no cost”, which sounds good, but doesn’t actually match the way people behave. So … For a decrease of 1% of the risk of death from terrorism I would be willing to pay a considerable cost in privacy. I’d be willing to subject myself to random searches on the streets and sidewalks, and monitoring of my communications. I’d be willing to be interviewed on occasion. But perhaps not random searches in my home. And not the private details of my life being revealed to all and sundry. (Yes I have things to hide. No, nothing too bad. But capeable of causing me considerable embarrassment). For a .1% decrease in risk I would probably agree to monitoring of communication and searches at well-defined points. I would also agree to being interviewed. For anything below that border searches and data mining of publically available information are pretty much all I’d agree to. Oh, and secret searches, when a court has decided probably cause exists and secrecy is necessary. For reference, 0.001% of Americans were killed in 9/11.
    This is assuming that the costs are actually necessary for the benefits.
    But there are other costs to such intrusions in privacy. Quite apart from the inconvenience and bother, such surveillance is also going to make people reluctant to read, say, or advocate controversial things. That’s very bad for the health of a democracy. And a spying regime is ripe for abuse by the Administration in charge. Giving the Administration the power (if not the license) to blackmail at will is going to be very bad for democracy. These costs are (IMO) considerably larger than the strictly personal costs of surveillance. Given the risk posed by a unfettered surveillance program, I don’t think it can be justified unless the benefit is at least a 1% decrease in risk to the average American.
    There is one other problem with my reframing. And that is by the very nature of the programs under discussion, the costs are borne by everyone, regardless of whether they would be willing to pay for them or not. It is not an individual choice.
    You asked …

  78. John: In any event, there’s no unanimity in the opinion that it’s a poor ruling, although certainly some portions of the argument are stronger than others.

    The operative term was informed. Greenwald’s post is more of a summary of the ruling and doesn’t include any real analysis, but even he says that it’s “not the most scholarly opinion,” and that Judge Taylor doesn’t provide much reasoning. Of course, he’s all for the result–it’s Greenwald afterall–but he doesn’t provide any legal reasoning as to why it’s correct.

    John:
    Here’s an editorial from a different newspaper calling the ruling “a careful, thoroughly grounded opinion.”

    The NYT editorial doesn’t provide any analysis at all and is little more than, in Dylan’s words, “Hooray for our side.” The next day though, the Times did provide a summary of informed legal analysis and concludes that virtually all experts, even those who support the conclusion, believe the ruling is flawed.

    So, as I said, whether or not you drink it’s too early to celebrate. The NSA program may be struck down in the end, but it won’t be because of this ruling.

  79. That’s pretty much a given. The program doesn’t rest on this decision, at any rate–but it’s silly for the usual suspects to be howling that some lib’rul activist judge was kowtowing to the ACLU.

  80. So … For a decrease of 1% of the risk of death from terrorism I would be willing to pay a considerable cost in privacy.

    Let me get this straight — do you mean that in order to knock a percentage point off the risk (going from 2% to 1%, for example) you’d do this, or in order to reduce the risk by 1% (from 2% to 1.98%) you’d do this?

  81. Let me get this straight — do you mean that in order to knock a percentage point off the risk (going from 2% to 1%, for example) you’d do this, or in order to reduce the risk by 1% (from 2% to 1.98%) you’d do this?

    Sorry, yes, I bodged the language. I meant percentage points when I said percent. I’m not about to agree to much of anything to decrease my risk of death from terrorism from 2% to 1.98%. (Or from 0.001% to 0%.). Thanks for pointing that out.

  82. Andrew Wade: “These costs are (IMO) considerably larger than the strictly personal costs of surveillance…such surveillance is also going to make people reluctant to read, say, or advocate controversial things. That’s very bad for the health of a democracy. And a spying regime is ripe for abuse by the Administration in charge.”

    Exactly. I’ll add another cost to be considered — that of acculturation. “Why after a while, you don’t even notice the smell…” And the next erosion of your freedom becomes much easier.

    And while I’m at it… the U.S. is NOT AT WAR! Period! Oh yes, we are certainly Making War on various populations, but the so-called “war on terror” is nothing but a cheap rhetorical trick. If you want to engage people in reasonable debate, don’t start by spewing scare-mongering propaganda.

  83. P.S.
    If, on the other hand, you are interested in thinking about rational responses to terror attacks rather than random panic behaviour or cynical Public Relations ploys and power grabs, here is an interesting thread from Freedom to Tinker:

    http://www.freedom-to-tinker.com/?p=1054#comments

    First step: make an accurate assessment of the situation.

  84. PaintedJaguar:

    http://www.freedom-to-tinker.com/?p=1054#comments
    First step: make an accurate assessment of the situation.

    Oh, definitely. I am a big fan of the policing approach. It appears to have been tremendously effective in the case of the IRA. (It did take a long time for the effects to really kick in though.). The current situation is of course quite different from the troubles, but it shares the characteristic that too heavy-handed an approach backfires. I strongly suspect that the “Al Quaeda” terrorism campaign is all about inducing us to do stupid, stupid things in the middle east, and screwing up so badly that it turns into a theocratic empire. If so, it’s backfired for them :cough: Afghanistan :cough:. But “we” are busy doing stupid, stupid things in the middle east.

    fibian:

    Tell that to these guys.

    Sure thing. While we’re at it, lets tell the Michigan militia the same thing. And the FLQ if there are any of them still around. Scattered nutcases does not a war make. Now Iraq, that’s a war, albeit not a conventional one. But it’s not a war on terror. And if it’s a war with Al Quaeda, it’s because they’ve chosen to make it one; they’re probably overjoyed at one less secular regime.

  85. fibian,

    Does that mean that Timothy McVeigh’s Oklahoma City bombing was our second Civil War?

    You do realize that WWII, from Pearl Harbor to Hiroshima, the last “good” war, lasted less than 4 years, right?

    To call the sporadic acts of terrorism ‘war’ does a disservice to the term.

    That’s like saying that the drunk fan who runs on the field during the Super Bowl deserves to be called an NFL running back.

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