F.U. right wingers. NSA eavesdropping program ruled unconstitutional

[Ogie Oglethorpe]

Originally posted by Oerdin
It matters because you are going to need to present a creditable source that your claims did happen as you have previously claimed. The well known problem with the American Spectator is that they are like Rush Limbaugh in that the are so intensely partisan that they will omit facts which they don't like, they will twist facts to make them appear to be something else, and they will even out right lie. Absolutely nothing printed in the American Spectator can be taken as real unless it is backed up by a real journalist or academic source.

It's basically Provda for the Republican Party. But you know this; that's why you tried to hide the source.

Yawn.

Actually I didn't but be that as it may. Slate covered the FDR thing equally as well but I suppose you don't like slate either.

[Ogie Oglethorpe]

Originally posted by NeOmega


FISA is legal

FISA is constitutional

because FISA requires judicial oversight

One of the lightest reading and most ill informed comments to date.


Kudos that you are able to accomplish so much with so little.

Care to elaborate on why FISA is legal, constitutional and made so because it has judicial ovesight?

Which for the record according to the constitution (the Judicial) has even less substantiation for interfering with use of military powers.

[Ogie Oglethorpe]

Having problems recovering the original Slate article, but David Greenberg writes the following as a repeat from what he wrote at Slate:

Civil Rights: Let 'Em Wiretap!
By David Greenberg

Mr. Greenberg is a writer for Slate.com and is working on a book about Richard Nixon's place in American politics and culture.

At the moment, the House and Senate have hatched different versions of anti-terrorism bill. Both bills would let government agents procure just one warrant to wiretap a person regardless of the phone he uses. (Currently, warrants apply only to individual phones.) Both would let the government monitor the e-mail addresses to which users send messages, without first getting a warrant. Both would ease the standard officials have to meet in order to monitor suspected terrorists overseas.

Where they differ is over a so-called sunset provision, which would force Congress to renew the law or have it expire. The House version includes the provision, the Senate's doesn't. The House is in the right. For in the past the curtailment of civil liberties during emergencies has followed a pattern: hysteria followed by crackdown followed by regret.

Wiretapping has an especially complicated history, since, as the journalist David Wise noted in his excellent 1976 book The American Police State-which is far more measured than its title suggests-the constitutionality of wiretapping and bugging has always been murky. (Although sometimes used interchangeably, they're not the same thing. Wiretapping is the interception of telephone conversations. Bugging refers to the planting of hidden microphones to eavesdrop on face-to-face conversations in a given room.) The Constitution, after all, was drafted a century before the invention of the telephone, so any effort to divine the founders' original intent on questions of electronic surveillance will be in vain.

Thus, the laws governing electronic surveillance have always been a work in progress. After the telephone's invention, law enforcement authorities wasted little time in putting electronic eavesdropping to use. By the early 20th century, some states, such as Washington, had already outlawed official wiretaps.

Still, federal bugs and wiretaps remained legal. During Prohibition the young FBI Director J. Edgar Hoover used them to hunt bootleggers. In 1927, the FBI relied on evidence obtained though telephone taps to convict a liquor-runner named Olmstead and his accomplices. In court, Olmstead argued that the wiretaps that provided the evidence against him violated the Fourth Amendment's ban on unreasonable search and seizure. But the Supreme Court upheld the conviction, ruling that wiretapping was legal so long as it didn't involve a break-in to plant the tap.

In time, Congress grew concerned about the FBI's power. After Prohibition's repeal it outlawed all non-consensual wiretapping (but not bugging) as part of the 1934 Communications Act. In 1939, the Supreme Court upheld that law, ruling that since taps were illegal, evidence obtained from using them was inadmissible in court.

Even so, executive officials kept using wiretaps. In particular, Franklin Roosevelt sought to carve out a large exception to the statutory ban. In 1940, he wrote his attorney general, Robert Jackson, that while he accepted the court rulings that upheld the 1934 law, he didn't think those prohibitions applied to "grave matters involving the defense of the nation"--an increasingly high priority as world war loomed. On the contrary, Roosevelt ordered Jackson to proceed with the secret use of "listening devices" (taps or bugs) to monitor "persons suspected of subversive activities ... including suspected spies."

Concerned about a German "fifth column" in the United States, Roosevelt specified that his order applied to espionage by foreign agents. But when Harry Truman succeeded FDR in 1945, America's enemies list was changing fast. The next year, as the Iron Curtain fell and the Red Scare flared, Truman's attorney general, Tom Clark, expanded FDR's national security order to permit the surveillance of "domestic subversives." Clark and Truman endorsed wiretapping whenever matters of "domestic security" were at stake, allowing taps to be placed on someone simply because he held radical views.

The next four presidents, with escalating zeal, each made use of taps and bugs, drawing little scrutiny amid the Cold War anxiety. The FBI and CIA monitored all sorts of citizens who were far from subversive. Most famously, under John F. Kennedy and Lyndon Johnson, the FBI eavesdropped on Martin Luther King Jr. on the threadbare rationale that he had Communist ties and posed a security threat. Although the King incident wasn't revealed for years, a backlash against the so-called "national security state" nonetheless began. Itself quite worried, the liberal Warren Court stepped in and in the 1967 Katz case overruled Olmstead, holding that government taps did indeed constitute an unconstitutional search and seizure.

Congress promptly overrode the court. With crime, riots, and protests feeding a craze for law and order-seized on by Richard Nixon in his 1968 presidential campaign-Congress passed the Omnibus Crime Control and Safe Streets Act. The act allowed federal, state, and local authorities to tap phones, provided they first obtained a court warrant.

On the trickier question of national security surveillance, however, the 1968 law was ambiguous. Lawmakers specified that they did not mean to circumscribe the president's authority to protect the nation against foreign threats, nor to prevent him from securing vital foreign intelligence information, nor deter him-and this is the critical language-from "protect[ing] national security information against foreign intelligence activities." But this vague wording could be construed to mean one of two things: either that the president did not, in fact, need a warrant to engage in wiretapping where foreign threats were involved or, alternately, that Congress simply wasn't legislating on the question of national security wiretapping at all.

Nixon's attorney general, John Mitchell, construed it broadly. Mitchell held that the Justice Department was free to tap without a warrant any political dissenters it deemed threats to national security. Given how many Americans were organizing to oppose various government policies in 1969, Mitchell's reading promised to sanction the surveillance of millions of people who agitated against the Vietnam War, championed black radicalism, or engaged in campus protests. On June 19, 1972, the Supreme Court intervened again, ruling in the so-called Keith case that Mitchell's interpretation was invalid. Warrantless taps on domestic groups were illegal, it said, even though the government claimed national security was at stake.

Meanwhile, public tolerance of government wiretapping waned rapidly, abetted by a flood of revelations of Big Brother-like monitoring of private citizens. Those disclosures began before Watergate. In January 1970, an Army captain disclosed a military intelligence program that targeted political activists. And in March 1971, a raid on an FBI office "liberated" files detailing spying on black radicals and student groups.

But it was the investigations into the Nixon administration's surreptitious plots that heightened public cynicism about federal officials. Few could believe that national security was really at stake, whatever the administration's protestations, when Henry Kissinger tapped the phones of speechwriter William Safire or of newspapermen, or when Nixon ordered a tap on his own brother Donald.

The discrediting of official justifications for surveillance only accelerated after Nixon's resignation. In November 1974, the Justice Department released a report detailing FBI efforts against left-wing U.S. citizens, called Counterintelligence Program, or COINTELPRO. The next month, New York Times reporter Seymour Hersh exposed a massive CIA campaign against the anti-war movement, in explicit violation of the organization's charter. And in 1975 various congressional committees unearthed a range of stories of government officials using surveillance for political and personal reasons. The upshot was to cement a widespread impression that government surveillance power did more harm than good.

For two decades, lingering popular wariness forestalled any expansion of wiretapping powers. But after the 1993 World Trade Center bombing, President Clinton, warning of international terrorism, proposed measures similar to those George Bush seeks today. Civil libertarians in Congress refused to pass them, but Clinton redoubled his efforts after the 1995 Oklahoma City bombing, and again after the 1996 Atlanta Olympics bombing. Yet Congress held firm, giving Clinton none of the new wiretapping powers he sought. What the bombings of 1993, 1995, and 1996 failed to achieve, the atrocities of 2001 may bring to fruition.

So will the new bill help fight terrorism or just sacrifice liberties we'll miss when calmer times return? It's impossible to know in advance. Which is precisely why the sunset provision is an ingenious innovation. It lets us have it both ways. We can act swiftly to meet the current crisis and preserve our liberties in the long run. It will save us, at least, from repeating the mistakes of history.

An earlier draft of this article appeared on Slate.com.

[NeOmega]

Originally posted by Ogie Oglethorpe


Different program and one that is legal in any event.

Not legal at the moment, it has been declared unconstitutional, hence this thread. And not different program.


And as I said earlier, why would it be legal if Arlen Specter is trying to pass a law making it legal?

Care to elaborate on why FISA is legal, constitutional and made so because it has judicial ovesight?

Sure. Easy. The executive enforces the laws, the judicial makes sure the enforcement is constitutional. Didn't you learn this in middle school?

With no oversight, the NSA program is illegal, as opposed to any warrant obtained through FISA.


This is not a question about national security, it is about constitutionality. There are plenty of ways to obtain warrants, even in secret courts if necessary. Why is the Bush administration constantly bypassing the judicial?


Why are they trying to claim they were given authorization on Sept 14, 2001? What kind of ludicrous insanity is that? Nobody voted to give the NSA the right to data mine phone records, both foreign and domestic?

Which for the record according to the constitution (the Judicial) has even less substantiation for interfering with use of military powers.

How is requiring a warrant, even after the fact, interfering, and what branch of the militray does the NSA belong to? And when exactly was war declared?

[Sikander]

Originally posted by NeOmega

Not legal at the moment, it has been declared unconstitutional, hence this thread. And not different program.

Wrong in every respect. Do try to keep up.

Originally posted by NeOmega
And as I said earlier, why would it be legal if Arlen Specter is trying to pass a law making it legal?

To let the courts know the intent of the legislature in case they are confused, and to prevent a possible interruption of surveillance which may occur due to that confusion.

Originally posted by NeOmega

With no oversight, the NSA program is illegal, as opposed to any warrant obtained through FISA.

99.9% of what the NSA does is done without oversight, and is legal as well. Question #1 is does this activity fall within that category of activity? Question #2 is does FISA represent an unconstitutional burden on the president's authority as commander in chief?

Originally posted by NeOmega

How is requiring a warrant, even after the fact, interfering, and what branch of the militray does the NSA belong to?

The same "branch" as any of the many other multi-service commands like SOCOM.

[chequita guevara]

Originally posted by Sikander
To let the courts know the intent of the legislature in case they are confused, and to prevent a possible interruption of surveillance which may occur due to that confusion.

I don't think the legislature in 2006 knows what the intent of the legislature in 1978 was. We could ask those who created the bill.

[chequita guevara]

http://glenngreenwald.blogspot.com/2006/08/federal-court-finds-warrantless.html

Federal court finds warrantless eavesdropping unconstitutional, enjoins the program

(updated multiple times)

I do not yet know anything more than what is in this AP article, but if it is accurate, it is extraordinary news -- extraordinarily good news -- on every level. I will update this post continuously as I get more information, particularly once I get the opinion:


A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.


This is the case brought by the ACLU against the Bush administration directly. Some background on the case is here, where I previously noted that it seemed the judge was, at the very least, intent on scrutinizing, rather than blindly accepting, the Bush administration's claims. This also means, presumably, that this is now the second consecutive federal court to reject the Bush administration's invocation of the "state secrets" doctrine as a means of avoiding judicial review.

This is huge news, obviously. More to follow.

* * *
I went to the CNN website to see if they had anything on this decision, and saw a bright red box at the top with urgent "BREAKING NEWS" language in it, so I naturally assumed they were reporting it. Then I read this inside the flamboyant box:


BREAKING NEWS - Boulder DA: Ramsey murder suspect John Karr started working as second grade teacher in Thailand Tuesday. Watch live on CNN Pipeline now.


I have no doubt that infinitely more coverage will be devoted to that issue on every news program today than on the fact that a federal court just ruled that the President's warrantless eavesdropping program is unconstitutional and, perhaps, illegal.

* * * *

The opinion is here (.pdf); the injunction order is here (.pdf). I will have analysis on this shortly.

* * * *

I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward -- and sometimes eloquent -- in its almost always unequivocal rejection of the Bush administration's arguments:

First, the court rejected the administration's assertion of the "state secrets" doctrine with regard to the NSA eavesdropping program on the ground that the program has already been publicly confirmed by the administration, and that all of the known facts necessary to rule on the plaintiffs' claims -- namely, that the administration is eavesdropping without warrants -- are already publicly known. The court adopted the reasoning of Judge Walker who, as noted above, rejected the administration's invocation of this doctrine on the same ground.

(The court here did, however, grant the administration's motion to dismiss the part of the case challenging the constitutionality of the data-mining program, on the ground that it has not yet been confirmed, and litigation of its legality would therefore require disclosure of state secrets).

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration's warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny.

Third, the court ruled -- rather emphatically and without much doubt -- that warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures (generally speaking, searches undertaken in the absence of a probable cause warrant). Citing the 1972 Supreme Court decision in the Keith case (more on that here) -- which held that warrantless eavesdropping is unconstitutional in the context of investigating domestic terrorist groups -- the court held (admittedly without much reasoning or even explicit arguments) that the same reasoning applies to make warrantless eavesdropping unconstitutional in the context of investigating international terrorist groups.

Fourth, the court ruled independently -- again, without all that much reasoning -- that the NSA program violates the plaintiffs' First Amendment rights, apparently because it chills (deters) their free expression. Since the plaintiffs know the Government can eavesdrop without warrants on conversations of those groups and individuals deemed "subversive," the program abridges free expression in a way that the First Amendment prohibits.

Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.

Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.

Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took. It will obviously be appealed. But as of right now, it is illegal, according to this federal court, for the Bush administration to continue to implement its "Terrorist Surveillance Program," and since it is grounded in constitutional conclusions, nothing -- such as Arlen Specter's dreaded bill -- could change that.

[NeOmega]

Originally posted by Sikander

99.9% of what the NSA does is done without oversight, and is legal as well. Question #1 is does this activity fall within that category of activity? Question #2 is does FISA represent an unconstitutional burden on the president's authority as commander in chief?

Are 99.9% of teh NSA's searches and wiretaps done without oversight?



TO answer your question, and the question of every other person who keeps asking "why"


THE 4TH AMENDMENT, THATS WHY.

[Dinner]

Originally posted by Ogie Oglethorpe


Yawn.

Actually I didn't but be that as it may. Slate covered the FDR thing equally as well but I suppose you don't like slate either.

Slate's good. Please post a link and then explain how that effects jack cheese since FDR didn't have FISA but every President post 1978 does. Bush can't just ignore the laws about FISA because a president got to do it before the FISA law was passed. The courts have said this over and over and over again. Bush must comply with the law.

It isn't a difficult concept to grasp.

[NeOmega]

Originally posted by Oerdin

It isn't a difficult concept to grasp.

It is difficult to grasp. Because Saddam Hussein was president of Iraq, he was an exception to the laws of Iraq, and he has repeatedly said it in court.

[Ogie Oglethorpe]

Originally posted by chegitz guevara

http://glenngreenwald.blogspot.com/2006/08/federal-court-finds-warrantless.html

Federal court finds warrantless eavesdropping unconstitutional, enjoins the program

(updated multiple times)

I do not yet know anything more than what is in this AP article, but if it is accurate, it is extraordinary news -- extraordinarily good news -- on every level. I will update this post continuously as I get more information, particularly once I get the opinion:


A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.


This is the case brought by the ACLU against the Bush administration directly. Some background on the case is here, where I previously noted that it seemed the judge was, at the very least, intent on scrutinizing, rather than blindly accepting, the Bush administration's claims. This also means, presumably, that this is now the second consecutive federal court to reject the Bush administration's invocation of the "state secrets" doctrine as a means of avoiding judicial review.

This is huge news, obviously. More to follow.

* * *
I went to the CNN website to see if they had anything on this decision, and saw a bright red box at the top with urgent "BREAKING NEWS" language in it, so I naturally assumed they were reporting it. Then I read this inside the flamboyant box:


BREAKING NEWS - Boulder DA: Ramsey murder suspect John Karr started working as second grade teacher in Thailand Tuesday. Watch live on CNN Pipeline now.


I have no doubt that infinitely more coverage will be devoted to that issue on every news program today than on the fact that a federal court just ruled that the President's warrantless eavesdropping program is unconstitutional and, perhaps, illegal.

* * * *

The opinion is here (.pdf); the injunction order is here (.pdf). I will have analysis on this shortly.

* * * *

I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward -- and sometimes eloquent -- in its almost always unequivocal rejection of the Bush administration's arguments:

First, the court rejected the administration's assertion of the "state secrets" doctrine with regard to the NSA eavesdropping program on the ground that the program has already been publicly confirmed by the administration, and that all of the known facts necessary to rule on the plaintiffs' claims -- namely, that the administration is eavesdropping without warrants -- are already publicly known. The court adopted the reasoning of Judge Walker who, as noted above, rejected the administration's invocation of this doctrine on the same ground.




(The court here did, however, grant the administration's motion to dismiss the part of the case challenging the constitutionality of the data-mining program, on the ground that it has not yet been confirmed, and litigation of its legality would therefore require disclosure of state secrets).

As previously described operational details may offer the executive a means to work in a loophole situation. namely if intercpets occur outside the US proper. It is not surprising however that the admin did not reveal details about the program.

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration's warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny.

Meh

Third, the court ruled -- rather emphatically and without much doubt -- that warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures (generally speaking, searches undertaken in the absence of a probable cause warrant). Citing the 1972 Supreme Court decision in the Keith case (more on that here) -- which held that warrantless eavesdropping is unconstitutional in the context of investigating domestic terrorist groups -- the court held (admittedly without much reasoning or even explicit arguments) that the same reasoning applies to make warrantless eavesdropping unconstitutional in the context of investigating international terrorist groups.

This is where the court goes off the tracks IMO. The keith case deals exclusively with domestic terrorism and in no ways offers any conclusions as to what should be considered for foreign surveillance.

The 4th amendment prohibitions about reasonable vs. unreasonable seraches and seizures seen within the context of those searches and seizures already allowed is all the more troubling. Considering you can be bodily searched when entering the country as a precondition to entering the country this wiretapping seems pale in comparison.

Furhtermore to go to the keith case as the word on consitutionality of foreign surveillance flies in the face of every appelate court decision that said that the government is allowed to do just that for purposes of national safety.

The fact that other higher courts have upheld this constituionaility flies in the face of this decision.

Fourth, the court ruled independently -- again, without all that much reasoning -- that the NSA program violates the plaintiffs' First Amendment rights, apparently because it chills (deters) their free expression. Since the plaintiffs know the Government can eavesdrop without warrants on conversations of those groups and individuals deemed "subversive," the program abridges free expression in a way that the First Amendment prohibits.

Meh again

Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.

Again the court went way off the tracks with this. The Youngstown decision opinion was written by Justice Black. Justice Jacksons infamous 3 part test was most certainly not decided opinion of the court or even a majorityof the court but merely that of Justice Jackson. Even Justice Jackson in his opinion wrote more about not diminishing the office of president when it came to foreign affairs matters in that same court case. As such this test should NOT become the test used for conflicts of branches of the government. Particularly as a means to describe the extent of Executive authority. If there is such a test then likewise one should hold for the other branches as well.

Before one understands if a conflict of interest exists in a given matter one should understand whether the given branch has any or the extent to which constitutional authority has been given to the branches involved.

It does indeed come done to a coequal branch of government question, but the question is not has the executive assumed/presumed powers not constituionally given but moreover has the legislative presumed powers they were not entitled to in matters they have no authority to legislate upon.

Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

Again the arguement hinges on the flawed IMO decision that it violates 1st and 4th amednment principles.

Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.

This was fluff. The executive is as much an officer of the constitution and is required to interpret the consitution as any other branch. Ultimately SCOTUS has last say on interpretations of constitutionality. Invoking the Youngstown case was ill advised and does not further the arguement.

Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

As previously mentioned how the court could not take into account numerous other appelate decisions to counter the inclinations to say 4th and 1st ammendments wer violated strieks me as the essence of why this court decisionis so weak. had the court at least considered them the ruling woould have more standing.

This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took. It will obviously be appealed. But as of right now, it is illegal, according to this federal court, for the Bush administration to continue to implement its "Terrorist Surveillance Program," and since it is grounded in constitutional conclusions, nothing -- such as Arlen Specter's dreaded bill -- could change that.

meh

[Ogie Oglethorpe]

Originally posted by Oerdin


Slate's good. Please post a link and then explain how that effects jack cheese since FDR didn't have FISA but every President post 1978 does. Bush can't just ignore the laws about FISA because a president got to do it before the FISA law was passed. The courts have said this over and over and over again. Bush must comply with the law.

It isn't a difficult concept to grasp.

The slate article is above and is actually a reprint of David Greenberg's slate article. You'll note the admissions that FDR and Truman did similarly devious things in that article. As I mentioned I can't find the exact link in to slate circa October 2001.

As for how this matters post FISA I go again to the point I was supporting earlier. Namely the commentary

Actually the executive has far less powers today than any other war time president in this particular arena.

likewise this restatement of how this information is helpful in advancing the discussion

b) The context of these examples was evidence to show the executive is far more diminished in its power to gain foreign intelligence than administration in times past. (administrations that were heroic figure s of the Democratic party no less)

[Ogie Oglethorpe]

Originally posted by chegitz guevara


I don't think the legislature in 2006 knows what the intent of the legislature in 1978 was. We could ask those who created the bill.

Who should we trust, those who answered back in 78 such as Jimmy Carter who claimed executive priveldge to do warrantless wiretaps, or the Jimmy Carter of 2006 who disavows such singing statements and actions?

[NeOmega]

You know.

All this is is Bush hate.

And well deserved Bush Hate. I wouldn't trust Cheney with a shotgun, or my civil rights.

So blame it on Bush hate, but his entire administration has proven itself to be incompetant, and everything they have done so far, everything, has been nothing but politically motivated.

I don't like the thought of anyone tracking my phone records, beside the phone company, and most certainly not any employee ruled by some fool from this administration.

So it is indeed, blind, Bush hate. But hey, I hate the administration. So when they say, "can we peek?", I say, "piss off" How do I know they won't use it to destabilize our democracy, they had no problem gerrymandering in off census years. How do I know they won't use it to throw more arabs in jail, or Mexicans, or whoever else they have Haliburton building a giant prison complex for in case of martial law.*

How do I know they won't use it against me?


*(Its in the 2005 HAL 10-K, $400 million contract, IIRC, saw it myself)

[chequita guevara]

The reason why the judge's decision seems so weak is that she had only one side's argument to consider! The Bush Administration refused to make any arguments other than that the court should dismiss the case on the grounds of national security and that the AUMF granted the Bush Administration the power to do what it's doing (the later has been totally kabashed by Hamdan). The judge even ordered them to argue the merits of the case, and they refused!!! They didn't even dispute the standing of the plaintiffs to bring suit!



Everything the judge ruled on was, by statute, undisputed fact! They have almost no grounds for appeal!!!

Either the Feds are complete idiots or they are trying to cause a Constitutional Crisis.