Federal judge rules rules against warrantless-search program

August 17, 2006

Hot off the wire…

A [tag]federal[/tag] [tag]judge[/tag] ruled Thursday that the government’s [tag]warrantless[/tag] [tag]wiretapping[/tag] program is [tag]unconstitutional[/tag] and ordered an immediate halt to it.

U.S. District Judge [tag]Anna Diggs Taylor[/tag] 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.

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which involves secretly taping conversations between people in the U.S. and people in other countries.

The government argued that the program is well within the [tag]president[/tag]’s authority, but said proving that would require revealing state secrets.

The [tag]ACLU[/tag] said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.

A pleasant surprise, to be sure. I’ll add updates as I see them.

Update 1: For you legal types, here’s the opinion (.pdf) and here’s the order and injunction.

Update 2: From the ruling: “In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.”

So the third branch of government may actually have retained at least a shred of its independence? That’s good since both houes of the second branch, and the “fourth estate”, have all come under the allure(?) of the Regal Moron.

  • I won’t say “mission accomplished”, since there most certainly will be appeals, but with the recent Hamdan decision SOCTUS there is reason to think the decision of the District Court will be upheld.

  • This is good and bad news. I’m absolutely thrilled over the ruling. It takes us a step back from the growing Reich-wing revolution, although it will probably be appealed to the Supreme Court and the wisdom of Scaliamas where it will be reversed.

    The bad news is, and I’ve said this before, it’s a terrible comment on our democracy that it take a lawsuit, rather than congress, to question the edict of an American despot.

  • It’ll be interesting to see what Congress does between now and the appeal. Will Specter, et.al., attempt to pass something with retroactive absolution? In the current climate, where the right seems to be facing storms from nearly every direction, I wonder how that’ll play with voters.

  • You are all forgetting one important thing…

    The rule of law does not apply to this president.
    Or this vice president.

    That’s a fact.
    They will do what they want when they want.

    And… they will do it with a smirk and a chuckle.

  • it’s a terrible comment on our democracy that it take a lawsuit, rather than congress, to question the edict of an American despot.

    It’s not so much a comment on our demoncracy as a sad fact about our uneducated, uninforned, and uncaring voters, who haven’t done a thing to inspire Congress to act. When such circumstances occur, a minority can seek the court’s protection through a lawsuit – which is exactly what the framers of our Constitution intended.

    In other words, our demoncracy worked exactly the way it’s supposed to. Now, let us hope that the Supremes follow the law.

  • D*mn activist judges!!! (j/k)

    I wonder how many threats this judge will receive… which will be a sad commentary on our society.

    My hat’s off to her – another rebuke to our corrupt administration.

  • This opinion leaves no room for Specter to grant any retroactive resolution. It finds that the NSA program violates the First and Fourth Amendments and the Separation of Powers doctrine, as well as FISA. Congress could only attempt to cure the violation of FISA.

    It’s a stirring decision, written by a judge who was clearly (in my reading, at least) angered by some of the Administration’s arguments. She repeatedly points out that the President is himself created by the Constitution, and so cannot claim any right to violate the very document that created his office.

    I think you can forget about the Admin trying to turn this into some kind of good news. The alternative is going to have to be that out of control unelected judiciary theme –

  • You all do realize that Bush will just sign an executive order stating that the judicial branch can’t monitor the executive branch …

    Seriously — I would be STUNNED if this has any impact whatsoever on what the NSA is doing. They’ll just appeal until they can find some court loaded with right wing appointees that will go along with the program … you know, like the Supreme Court.

    I’m also interested in knowing is if the phone companies (who’ve retrofit their privacy policies to allow sharing info with the gov’t) will be held accountable in any way, shape, or form.

    Granted, according to at least one source, the phone companies didn’t hand over the records — they built the NSA special rooms to do the work directly. But still …

  • How will Bush and company turn this black eye into a feather in their cap?

    For starters, they can smear Judge Taylor, a Carter appointee, and the ACLU. We’ll be hearing a litany of “activist liberal judges” and anti-ACLU rhetoric coming from rightwingers for weeks to come. Add the B.S. about domestic spying foiling the latest terrorist “plot” and you’ll have the loonies worked up in no time.

    Then they can woefully misinterpret the decision. Bush can claim it’s the type of guidance and legitimacy he’s been seeking all along, much like he did with the Hamdan case.

    Finally they can turn to their stooge Arlen Specter. Specter’s been working on a “compromise” bill that gives Bush everything he wants in regard to warrantless surveillance. It will be a top priority and pass with ease when Congress returns from recess.

    Let’s hope the Democrats are emboldened by this decision and step up. I’d hate to see Russ Feingold left hanging again.

  • I believe it was Secretary of State Cordell Hull who said before Pearl Harbor “Gentlemen don’t read other gentlemen’s mail” when asked if any Japanese communications had been decoded. Ask yourselves this: If the overseas phone calls the U.S.-based perpetrators of 9/11 had been listened to, how many more people would be alive today?

  • Ask yourselves this: If the overseas phone calls the U.S.-based perpetrators of 9/11 had been listened to, how many more people would be alive today?

    Hard to say … Certain FBI agents certainly had their suspicions about the hijackers but were stymied in their efforts to investigate further.

    Then there was the Presidential Daily Briefing “Osama Bin Laden Determined to Strike the U.S.” To which Bush reportedly replied to the briefer: “All right you’ve covered your ass, now.”

    It’s not like the Bush Administration didn’t know something big was coming in the months prior to September 11th. And … oh, nevermind … no use talking to a troll.

  • If I were, as but any Citizen should, to contemplate the Declaration of Independence as regards this matter, I would consider the similarities between “this” George and a “previous” George. Consider first and foremost that “The history of “the current President of the United States” (formerly referred to as “the present King of Great Britain”) is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.

    He has refused his assent to laws.

    He has obstructed the administration of justice.

    He has made judges dependent on his will alone.

    He has erected a multitude of new offices, and sent hither swarms of officers to harass our people.

    He has affected to render the military independent of and superior to civil power.

    He has combined with others to subject us to a jurisdiction foreign to our constitution.

    For cutting off our trade with parts of the world.

    For depriving people of the benefits of trial by jury.

    For transporting individuals beyond seas to be tried for pretended offenses

    He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.
    ***”Coalition of the Willing, anyone?***

    He has excited domestic insurrections amongst us.

    In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

    Perhaps the Judicial Branch of the Government is finally waking up to the stench of this most recent tyrant. Perhaps the Legislative Branch will finally drag itself out from under the excrement of this adminstration, and demonstrate the courage and fortitude to perform its Constitutional duty—either to reign the tyrant in by compelling his compliance with the multitude of Laws established by the Congress, and rulings by the Courts—or to remove the tyrant from his throne forthwith, along with his mischievous minions.

    Such an act would, without any doubt or query, send a message to the entire planet—that the concepts of Democracy, as first established by these United States of America some “eleven-score-and-ten-years ago,” are still quite alive and well—and worth fighting for. It would show that a simple, age-worn piece of paper is more powerful than all the swaggering; all the falce niceties; all the lies, deceits, and cruel hatreds of any tyrant—including our own….

  • This will almost certainly be overturned.

    The courts are not interested in a fight with the executive branch and in any case Republicans have named most of the judges that will review the decision.

    The power grab by the President can only be halted by an activist Congress.

  • “Ask yourselves this: If the overseas phone calls the U.S.-based perpetrators of 9/11 had been listened to, how many more people would be alive today?” – Fallenwoman

    They were! They were tapped and taped. They were just not translated and no one paid any attention to the content and did anything with it.

    Remember that the FBI was warned from within it’s own ranks that their was a terrorist plot afoot. Because Washington was not leaning on the community to protect us, 3000+ Americans died on 9/11/01. We had lots of dots and no one drawing lines. We did not need more dots.

    Clinton/Gore stopped the Millenium attacks because, when warned of the danger, they paid attention and made the Government work. When Boy George II and Condi Rice were told that Osama bin Laden is intent on attacking the United States they blew it off with “you’ve covered your butt, now get out”.

    That’s the difference between Adults and Children.

    We don’t need General Michael V. Hayden’s NSA domestic warrantless wiretapping program. We just need the NSA to stop discharging Arabic translating service men and women for being gay so we have the capacity to actually translate communications fast enough to protect America.

  • Remember back in the day, when wingnuts used to say “It’s not about sex, it’s about lying under oath and the rule of law?” If only we could turn back the clock and have them follow that path today.

    “Ask yourselves this: If the overseas phone calls the U.S.-based perpetrators of 9/11 had been listened to, how many more people would be alive today?” – Fallenwoman

    It’s not about listening to terrorists, it’s about following FISA and getting a warrant before listening to terrorists. All we’re asking George to do is follow the FISA law as it’s written.

  • You’ve forgotten it was a Clinton appointee, Jamie Gorelick, who ruled that the FBI and the CIA could not share information. The same Jamie Gorelick who was on the 9/11 investigative committee. Now THAT’S what I call “covering your ass!”

  • — Fallenwoman, #12

    The key word here is the one in the title of CB’s posting: WARANTLESS

    Nobody objects to terrorists being on the NASA, CIA, FBI etc radar; they’re no gentlemen. But there are legal procedures in place, devised specifically to take care of such surveillance, with the FISA court being in charge of them. Nothing stops NASA from applying for a warrant; FISA is only too happy to issue them, given a good reason. NASA can even get a warrant retroactively, if speed is of essence, provided it applies within 72 hrs.

    NASA’s having to ask for a warrant and to prove that it has reasons for asking protects the rest of us — non-terrorists — from leading double lives constantly, because of fear of “how will it be viewed?”

    Having grown up in a totalitarian system which didn’t even make much pretense of giving a damn about personal liberties/rights, I’m probably more sensitive than most about losing those *again*. Prup posted something about reading Iraqi blogs (in an earlier thread) and my immediate reaction was: “you keep reading those, buddy, and next we know you’ll be blogging from Gitmo”. That’s a mindset that Americans have never known (well… there’s the tradition of Joe McCarthy ) and, one would hope, will never need to get used to.

    So, Fallenwoman, do try and drag yourself from whatever pit you’ve fallen into (delusion?). It’ll do wonders for your self-condfidence. And it might do some good to the country you — and all of us — would like to protect.

  • Concerning the “Wall”, which was claimed by then Attorney General John Ashcroft in testimony to the 9/11 Commission.
    I direct you to a USDoJ Memorandum dated August 6, 2001:

    ( http://www.fas.org/irp/agency/doj/fisa/dag080601.html )

    “This memorandum clarifies current Department of Justice policy governing intelligence sharing, and establishes new policy. On July 19, 1995, the Attorney General adopted Procedures for Contacts Between the FBI and the Criminal Division Concerning Foreign Intelligence and Foreign Counterintelligence Investigations (1995 Procedures). THE 1995 PROCEDURES REMAIN IN EFFECT TODAY. On January 21, 2000, the Attorney General adopted additional measures regarding intelligence sharing in response to the Interim Recommendations proposed by Special Litigation Counsel Randy Bellows (Interim Measures). THE INTERIM MEASURES ALSO REMAIN IN EFFECT TODAY. The purpose of this memorandum is to restate and clarify certain important requirements imposed by the 1995 Procedures and Interim Measures, and to establish certain additional requirements. This memorandum does not discuss all of the current requirements, and the fact that a particular requirement is not discussed here does not mean that it is no longer in effect.”

    Here are links to the memos in question:

    http://www.fas.org/irp/agency/doj/fisa/1995procs.html

    http://www.fas.org/irp/agency/doj/fisa/ag012100.html

    Now, this is not to excuse the Clinton administration for any shortcomings concerning foreign terrorists operating in the United States, but you cannot simply put all of the blame for 9/11 on them, either.

    How did this administration attempt to improve the “failures” of Clinton when it took office? Did it try to reverse the previous policies and procedures? Or did it simply continue them? It seems that they chose the latter.

  • “You’ve forgotten it was a Clinton appointee, Jamie Gorelick, who ruled that the FBI and the CIA could not share information.” – Fallenwoman

    And that ‘wall’ was torn down by the USA PATRIOT act, not by General Michael V. Hayden’s (USAF, Rtd) warrantless wiretapping program.

    And again, when the top levels of the Government are focused on the terrorist threat, rather than taking vacations, America is safe. Clinton/Gore protected us from the Millenium Attacks. Bush/Cheney/Rice failed to protect us from 9/11/01 despite all the warnings.

    It – is – that – simple.

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