(POL) Federal Judge orders end to NSA Wiretapping program

[SirFozzie]

Interesting. I dont think it will change anything, that either they'll delay it by appealing through the courts until the matter is moot, or just move it deeper underground.

Also, be prepared for a new round of "Librul activist judges" bashing coming.

The warrantless Internet and telephone surveillance program authorized by the Bush administration violates the U.S. Constitution and must cease immediately, a federal judge ruled Thursday.

The landmark decision makes U.S. District Judge Anna Diggs Taylor in Detroit the first judge to strike down the National Security Agency's once-secret program. The American Civil Liberties Union had filed suit against the government, claiming the program "ran roughshod" over the constitutional rights of millions of Americans and ran afoul of federal wiretapping law.

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," the judge wrote in her 44-page opinion

http://i.a.cnn.net/cnn/2006/images/0...sa.lawsuit.pdf

[SirFozzie]

Wow, it gets even better, from CNN:

The defendants "are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (TSP) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III," she wrote.

She further declared that the program "violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III."

She went on to say that "The president of the United States ... has undisputedly violated the Fourth in failing to procure judicial orders."

The lawsuit, filed January 17 by civil rights organizations, lawyers, journalists and educators, "challenges the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval."

The judge rejected the government's argument that the program is within the president's authority, according to the AP

[st.cronin]

The courts have made their decision. Now let them enforce it.

[SirFozzie]

Originally Posted by st.cronin

The courts have made their decision. Now let them enforce it.

yeah, but having a federal judge saying that will give new life to the folks who consistently call for Bush's impeachment.

Gives the conservative base a boost of energy, I believe, for the midterm elections

[Farrah Whitworth-Rahn]

Originally Posted by SirFozzie

yeah, but having a federal judge saying that will give new life to the folks who consistently call for Bush's impeachment.

Gives the conservative base a boost of energy, I believe, for the midterm elections

Except that the UK's version of the NSA program was what stopped the terrorist attack last week. If anything, it proved the program works, and therefore should continue.

[JPhillips]

Except the UKs version required warrants.

[Farrah Whitworth-Rahn]

Originally Posted by JPhillips

Except the UKs version required warrants.

As does this one.

[MrBigglesworth]

Originally Posted by Farrah Whitworth-Rahn

As does this one.

The whole problem with Bush's program is that it doesn't use warrants.

[Farrah Whitworth-Rahn]

Originally Posted by MrBigglesworth

The whole problem with Bush's program is that it doesn't use warrants.

Really? Hmm. I guess you're taking the position this program is outside the scope of FISA, whereas I do not.

[molson]

Someone posted last week about how they've been come apathetic and indifferent to airport security and its importance. I feel the same way about domestic spying. I'm pretty sure George W. Bush didn't innovate the concept. Our government has most certainly spied on communists, anarchists, atheists, militias, whatever. The only practical limitation has been the technology available at the time. Our system has done a very good job of keeping knowledge gained through such spying out of criminal courtrooms.

[SirFozzie]

And guess what, I'm right!

Headline on CNN:


The U.S. Department of Justice has announced that it will appeal a federal judge's ruling that the government's warrantless wiretapping program is unconstitutional.

[Honolulu_Blue]

Originally Posted by Farrah Whitworth-Rahn

Really? Hmm. I guess you're taking the position this program is outside the scope of FISA, whereas I do not.

If the program was within the scope of FISA, wouldn't those wiretaps require FISA court authorization? Wasn't that the argument, that the reason the administration did not use the FISA courts to get authorization was because it would be too cumbersome or some such?

I thought the administration argued that FISA was an unconstitutional violation of the Presidents inherent powers.

I will admit, I am not expert on this subject, I just find the comment a bit confusing based on my understanding of the issues.

[MrBigglesworth]

Originally Posted by Farrah Whitworth-Rahn

Really? Hmm. I guess you're taking the position this program is outside the scope of FISA, whereas I do not.

FISA requires a warrant too. I'm confused by what you mean.

[MrBigglesworth]

Originally Posted by molson

Someone posted last week about how they've been come apathetic and indifferent to airport security and its importance. I feel the same way about domestic spying. I'm pretty sure George W. Bush didn't innovate the concept. Our government has most certainly spied on communists, anarchists, atheists, militias, whatever. The only practical limitation has been the technology available at the time. Our system has done a very good job of keeping knowledge gained through such spying out of criminal courtrooms.

Courtrooms aren't the only places where these do harm. The biggest area that could be abused is in spying on enemies of the President, whether that be the opposition party or the journalists investigating him.

[molson]

Originally Posted by MrBigglesworth

Courtrooms aren't the only places where these do harm. The biggest area that could be abused is in spying on enemies of the President, whether that be the opposition party or the journalists investigating him.

Agreed, and if the Supreme Court ever finds the practice unconstitutional, the spying will simply be done more secretly.

Localized spying, of a finite and limited number of individuals is really easy when you're president, Constitution or no Constitution.

I'm not disagreeing with your objections - I just think there's little practical relevance here, the motivation is politics.

[Subby]

Farrah's contract requires that she support the administration here, so let's at least give her props for trying.

[Farrah Whitworth-Rahn]

Originally Posted by Honolulu_Blue

If the program was within the scope of FISA, wouldn't those wiretaps require FISA court authorization? Wasn't that the argument, that the reason the administration did not use the FISA courts to get authorization was because it would be too cumbersome or some such?

I thought the administration argued that FISA was an unconstitutional violation of the Presidents inherent powers.

I will admit, I am not expert on this subject, I just find the comment a bit confusing based on my understanding of the issues.

I don't pretend to be an expert either, and I'm just going off my understanding of the analysis presented on this issues.

FISA permits survelance for up to 72 hours without obtaining a warrant through the FISA court. They must give notice to the court at the end of the 72 hours.

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.

This program falls within the scope of the FISA law (signed by Jimmy Carter), but under the rules of that program, warrants weren't necessary.

[Farrah Whitworth-Rahn]

Originally Posted by Subby

Farrah's contract requires that she support the administration here, so let's at least give her props for trying.

Nice try Subby. Maybe if you knew me a little better that might hold some water.

[MrBigglesworth]

Originally Posted by Farrah Whitworth-Rahn

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.

If that is the legal reasoning, it's no wonder they lost the case in Federal court.

f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.

FISA clearly states that if they authorize emergency surveillance, they have to inform a judge AND they have to apply for a warrant. Since you agree that the program is under FISA, we can both now agree that the program is unlawful.

[Honolulu_Blue]

Originally Posted by Farrah Whitworth-Rahn

I don't pretend to be an expert either, and I'm just going off my understanding of the analysis presented on this issues.

FISA permits survelance for up to 72 hours without obtaining a warrant through the FISA court. They must give notice to the court at the end of the 72 hours.

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.

This program falls within the scope of the FISA law (signed by Jimmy Carter), but under the rules of that program, warrants weren't necessary.

I haven't heard that line of argument. Is that really what the administration is saying? If so, it's completely retarded and would get laughed out of pretty much any court. I am pretty sure that survelance begins and ends from the moment the tap is placed, regardless of the lenght of any one (or more) phone calls. Then again, maybe not. I certainly wouldn't put it past these clowns trying to push such an argument. We've seen worse (and will likely again).

I really thought their official view was the FISA just wasn't workable. That it didn't offer them enough "agility" to effectively go after the bad guys and all. Or that FISA was unconstitutional. Neither of which are really all that convincing either.

[Subby]

I have to apologize - I just read through all of your political posts here and your blog stuff for Cam and now I feel like an idiot.

Sorry for labeling you.

[flere-imsaho]

Originally Posted by Farrah Whitworth-Rahn

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.

That wasn't my understanding. My understanding was that the Bush Administration claimed that it had a right, due to a "war setting" to ignore FISA.

[Farrah Whitworth-Rahn]

Originally Posted by Subby

I have to apologize - I just read through all of your political posts here and your blog stuff for Cam and now I feel like an idiot.

Sorry for labeling you.

Fuck you. That's not an apology.

I should have known better than to wander into a political thread here.

[Farrah Whitworth-Rahn]

Originally Posted by MrBigglesworth

If that is the legal reasoning, it's no wonder they lost the case in Federal court.


FISA clearly states that if they authorize emergency surveillance, they have to inform a judge AND they have to apply for a warrant. Since you agree that the program is under FISA, we can both now agree that the program is unlawful.

I don't know if that's the legal reasoning argued in court, I haven't read the transcripts.

And no, I won't agree that the program is unlawful. You know as well as I do Biggles that many things can modify the meaning of the original act - court cases after the enactment of the law, congressional orders etc. I'm not prepared to agree to anything without looking at all of it.

[Farrah Whitworth-Rahn]

Originally Posted by Honolulu_Blue

I haven't heard that line of argument. Is that really what the administration is saying? If so, it's completely retarded and would get laughed out of pretty much any court. I am pretty sure that survelance begins and ends from the moment the tap is placed, regardless of the lenght of any one (or more) phone calls. Then again, maybe not. I certainly wouldn't put it past these clowns trying to push such an argument. We've seen worse (and will likely again).

I really thought their official view was the FISA just wasn't workable. That it didn't offer them enough "agility" to effectively go after the bad guys and all. Or that FISA was unconstitutional. Neither of which are really all that convincing either.

I have seen that argument from admin officials, yes. Though like I said I don't know if that's what they argued in court.

[st.cronin]

Originally Posted by Farrah Whitworth-Rahn

Fuck you. That's not an apology.

I should have known better than to wander into a political thread here.

VOTE FARRAH

[MrBigglesworth]

Originally Posted by Farrah Whitworth-Rahn

I don't know if that's the legal reasoning argued in court, I haven't read the transcripts.

And no, I won't agree that the program is unlawful. You know as well as I do Biggles that many things can modify the meaning of the original act - court cases after the enactment of the law, congressional orders etc. I'm not prepared to agree to anything without looking at all of it.

You said that you "don't pretend to be an expert either, and [are] just going off [your] understanding of the analysis presented on this issues." Have you come across any presented analysis that gave any court cases, congressional orders, etc., that would make the plain text of FISA irrelevant?

As to your original point, I believe the UK was tipped off to the plot by a human source, then followed that up with taps authorized by their form of warrants, a program that not a single person has a problem with. So while the UK case does provide an example of the benefits of eavesdropping, it does not provide an example of the benefits of warrantless eavesdropping, ie, the NSA program.

[Honolulu_Blue]

Originally Posted by MrBigglesworth

As to your original point, I believe the UK was tipped off to the plot by a human source, then followed that up with taps authorized by their form of warrants, a program that not a single person has a problem with. So while the UK case does provide an example of the benefits of eavesdropping, it does not provide an example of the benefits of warrantless eavesdropping, ie, the NSA program.

Agreed.

I know a lot of conservatives are running around right now squawking about how stopping this terrorist attack supports the administration's wiretap program, but it really doesn't. At all.

In fact, doesn't it sort of prove that a constitutional wiretapping program (i.e., authorized by a warrant) can be and, indeed, is, an effective way to combat terrorism?

[digamma]

Originally Posted by Farrah Whitworth-Rahn

If anything, it proved the program works, and therefore should continue.

I don't think you really mean this as a therefore, do you? There are a lot of things that may be effective in preventing terrorism or achieving other govermental or societal goals. That doesn't mean they're constitutional.

[JonInMiddleGA]

http://www.fjc.gov/servlet/tGetInfo?jid=2345
Taylor, Anna Katherine Johnston Diggs
Nominated by Jimmy Carter on May 17, 1979

http://www.daahp.wayne.edu/biographiesDisplay.asp?id=64
Taylor became active in politics, helping Coleman Young in his 1973 campaign and Jimmy Carter in his 1976 victory.

Now I just can't imagine why on earth would anybody suspect this woman of liberal activism.

[Honolulu_Blue]

Originally Posted by JonInMiddleGA

http://www.fjc.gov/servlet/tGetInfo?jid=2345
Taylor, Anna Katherine Johnston Diggs
Nominated by Jimmy Carter on May 17, 1979

http://www.daahp.wayne.edu/biographiesDisplay.asp?id=64
Taylor became active in politics, helping Coleman Young in his 1973 campaign and Jimmy Carter in his 1976 victory.

Now I just can't imagine why on earth would anybody suspect this woman of liberal activism.

Have you read the opinion? Have you read any of Judge Taylor's opinions?

[MrBigglesworth]

Originally Posted by Honolulu_Blue

Have you read the opinion? Have you read any of Judge Diggs' opinions?

She's a black woman that campaigned for Jimmy Carter. What more evidence do you need that she is on the side of the terrorists?

[Subby]

Originally Posted by Farrah Whitworth-Rahn

Fuck you. That's not an apology.

Take it easy there, Schlafly, I was just teasing.

[JPhillips]

Jon: I'll go along with that if it also means that Roberts, Scalia, Alito and Thomas are given the same level of criticism when they rule in favor of Republicans.

[Honolulu_Blue]

Originally Posted by JPhillips

Jon: I'll go along with that if it also means that Roberts, Scalia, Alito and Thomas are given the same level of criticism when they rule in favor of Republicans.

It's not so much the criticism as it is an example of what passes for political "discourse" today. If someone doesn't agree with your opinion you just toss out some partisan buzzword (like "activist judges") without actually taking the time to try to really understand the facts or anything else for that matter.

I haven't read the opinion, so I don't know what to make of it, but I have read a few legal articles on the subject and pretty much all of them agreed that the program was unconstitutional.

[Vinatieri for Prez]

Man, this subject was beaten dead 4 horses ago. It's warrantless, in violation of FISA and the Constitution, and now a court says so. Moving on here.

[SackAttack]

Charles Barkley had a quote that I used to think was just funny; now I'm finding some personal relevance in it.

"I used to be a Republican, until they lost their minds."

After listening to the sheer hatred and vitriol for Judge Taylor and the New York Times on talk radio over this decision, I think I'm in that camp.

Hey, Bucc, got any room on the Libertarian bus?

[flere-imsaho]

Originally Posted by JPhillips

Jon: I'll go along with that if it also means that Roberts, Scalia, Alito and Thomas are given the same level of criticism when they rule in favor of Republicans.

That was exactly my first thought.

[Glengoyne]

She went on to say that "The president of the United States ... has undisputedly violated the Fourth in failing to procure judicial orders."

Well that just seems to scream impartiality, don't it. That said. This had to happen. Now we can all sit back with our popcorn and watch the show.

[Crapshoot]

Originally Posted by Glengoyne

Well that just seems to scream impartiality, don't it. That said. This had to happen. Now we can all sit back with our popcorn and watch the show.

She's a judge Glen - if he violated the law, is she supposed to pretend he didn't ? Seriously ?

[Honolulu_Blue]

Originally Posted by Glengoyne

Well that just seems to scream impartiality, don't it. That said. This had to happen. Now we can all sit back with our popcorn and watch the show.

Huh?

Fact 1:
Issuing warantless wiretaps is a violation of The Fourth Amendment.

Fact 2:
The President authorized warrantless wiretaps.

The Conclusion that logic demands:
The President violated the Fourth Amendment.

That's logic, my man, not partiality. Though in this day and age folks just cant (or wont) see the difference when the cookie don't crumble their way.

[JonInMiddleGA]

If this is so obviously unconstitutional as some seem to like to cry, then why are legal experts predicting that yesterday's ruling will be overturned?

http://www.freep.com/apps/pbcs.dll/a...0381/1001/NEWS
"Given the composition of the 6th Circuit and its previous rulings in related areas, it seems more likely to favor national security over civil liberties if that issue is squarely presented," said Carl Tobias, a law professor at the University of Richmond in Virginia. "And that's what this case is all about."

That's the ending of an otherwise fairly pro-Taylor article in the Detroit Free Press, btw.

[Honolulu_Blue]

Originally Posted by JonInMiddleGA

If this is so obviously unconstitutional as some seem to like to cry, then why are legal experts predicting that yesterday's ruling will be overturned?

http://www.freep.com/apps/pbcs.dll/a...0381/1001/NEWS
"Given the composition of the 6th Circuit and its previous rulings in related areas, it seems more likely to favor national security over civil liberties if that issue is squarely presented," said Carl Tobias, a law professor at the University of Richmond in Virginia. "And that's what this case is all about."

That's the ending of an otherwise fairly pro-Taylor article in the Detroit Free Press, btw.

I'll answer your question in two parts:

1. See the bolded text, in particular the bolded & underlined text.

2. I think, this quote is another reason for this:

"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."

Neither of those reasons really go to the merits of the issue: the constitutionality of the program.

[JonInMiddleGA]

Originally Posted by Honolulu_Blue

Neither of those reasons really go to the merits of the issue: the constitutionality of the program.

Which means this will end up with The Supremes, which is where its been headed all along.

And while I'm not what I'd call confident of their wisdom, I'm at least hopeful in this instance.

[Dutch]

Originally Posted by Honolulu_Blue

Neither of those reasons really go to the merits of the issue: the constitutionality of the program.

Well, technically, I think it is a violation of the 4th amendment. So if it is not overturned, the terrorists win that argument and keep that valuable strategic tool to communicate--without NSA interference. But I still demand the government protect me from these terror plots. Doesn't the removal of this tool hurt the our chances to stop the more complicated terror plots that require international communication?

And what do we gain when we protect the terrorist's 4th amendment rights? Will the collection now sue for peace?

[Honolulu_Blue]

Originally Posted by JonInMiddleGA

Which means this will end up with The Supremes, which is where its been headed all along.

And while I'm not what I'd call confident of their wisdom, I'm at least hopeful in this instance.

Assuming it gets there, I think the chances are better than even they uphold it.

[st.cronin]

Originally Posted by Dutch

So if it is not overturned, the terrorists win that argument and keep that valuable strategic tool to communicate--without NSA interference.

The NSA will continue to do what it does regardless of what the courts say. The only thing the courts will change is the paper trail. This is truly an academic argument.

[Jonathan Ezarik]

Originally Posted by Dutch

Well, technically, I think it is a violation of the 4th amendment. So if it is not overturned, the terrorists win that argument and keep that valuable strategic tool to communicate--without NSA interference. But I still demand the government protect me from these terror plots. Doesn't the removal of this tool hurt the our chances to stop the more complicated terror plots that require international communication?

And what do we gain when we protect the terrorist's 4th amendment rights? Will the collection now sue for peace?

Pardon? This ruling doesn't prevent the NSA or any other agency from listening in on conversations. If you want to listen in, get a warrant. What's so difficult about that?

[Dutch]

Originally Posted by Jonathan Ezarik

Pardon? This ruling doesn't prevent the NSA or any other agency from listening in on conversations. If you want to listen in, get a warrant. What's so difficult about that?

Oh, I didn't realize it was that easy. What's that warrant say?

[Honolulu_Blue]

Originally Posted by Jonathan Ezarik

Pardon? This ruling doesn't prevent the NSA or any other agency from listening in on conversations. If you want to listen in, get a warrant. What's so difficult about that?

Exactly. It's not like the court is saying the NSA can't use wiretaps. It's just saying that it has to abide by the constitution when doing so.

Following FISA’s requirements are really not all that burdensome. Do you have any idea how many FISA warrants have been rejected since the law was enacted? Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four).