Posted by CNN via e-mail on Thursday, August17, 2006 at 9:49 am
A federal judge has ruled that the federal government's warrantless wiretapping program is unconstitutional and ordered it ended immediately. Visit CNN for the latest.
Indeed, Joe. Damnable activist judges, just inventing laws. Who are they to say that warrantless surveillance is unconstitutional just because the Constitution clearly says in no uncertain terms that people are secure in their persons and papers when you don’t have a warrant?
Yes, well, let’s all just hold our horses, shall we, and wait and see what the appeals court and ultimately the Supreme Court decides, since this one is obviously going to go all the way up. The decision appears flawed, in that it doesn’t even address the obvious legal counterarguments. And, contra Sean, dcl, etc., this is NOT a clear-cut issue. One can pick up the Constitution and conclude as an armchair commentator without any knowledge of the relevant precedents that the program is obviously unconstitutional, but that doesn’t necessarily make it so, as a matter of constitutional law as it currently exists in this country. (Of course, one is free to disagree with constitutional law as it currently exists in this country — i.e., with how the Supreme Court has interpreted the Fourth Amendment and applied it to modern circumstances over the last few decades — but that disagreement doesn’t mean this decision will be upheld.)
P.S. To be clear: when I say it’s “NOT a clear-cut issue” … I mean that. It’s not clear-cut in either direction, from what I’ve read about it.
I don’t know how this issue will ultimately turn out. I also don’t know how I think it should. So that’s not my point. I just don’t particularly think it’s helpful when people — on either side — act like they do know how it will turn out, when in fact they only think they know, based on an armchair, de novo interpretation of the Constitution divorced from all precedent and context.
So Joe: do you think we should be equally dismissive of any judge nominated by a conservative? Are their decisions bygone conclusions just as much as you seem to insinuate that decisions by liberal judges are, and therefore invalid?
Anna Diggs Taylor gave the government two extensions to justify their position, so it seems that at least she was being charitable to them. They refused to do so, on the premise that telling the court why they’re right would jeopardize national security. I can see why, as a judge, she might not buy that argument.
My favorite part? The governments defense is basically “The President has this authority, but we can’t tell you why cause its a secret, so umm, just trust us!”
I don’t agree with David on the constitutionality part of this issue, but his characterization of the Government’s position is accurate. The government did say, they would make a complete defense due to the secret nature of the case. That’s pretty weak. Did the government lawyers request sealed court records and were they granted?
Now, as to the plantiffs, I find their argument as to why they brought their case to be ridiculously strained. They can’t prove harm at all, so assumptions have to be made. And if this goes to the SC, a prediction:
The SC will punt on the constitutionality issue and rule that the plantiffs did not have grounds to bring the case because they can’t show harm.
But frankly, after reading the news report, my opinion is I’ll take notice AFTER the circuit court makes its decision.
No Briandot, I don’t think we should be dismissive judges based solely on who nominated them. I admit being flippant in my previous comment :-) It does lend some interesting context, though. And if the gov’t indeed committed faulty motion practice, then that’s their problem, not the plaintiffs’. Not having read the opinion, I’m curious what, if anything, the court said about the question of whether the plaintiffs’ had standing to sue. I can’t imagine that wasn’t an issue in the litigation.
After going through the opinion, I find the opinion on the Plantiff’s standing to be weak. In effect, the judge’s opinion is that because international contacts would no longer talk to them, it had to be because of the NSA, so it was concrete harm caused. Problem is that they cannot still point to in INSTANCE of it. All you have is a group of Doctors, Lawyers, and Journalists complaining about their patients, clients, and sources not talking to them out of fear of the program.
Though this may sound like harm, a ‘chilling effect’ is still a conjectural and abstract harm, not a concrete one. The judge’s opinion on why this is different is because the international sources are ‘chilled’ and not the plantiffs.
Just another example of trying to use police to fight a war. It is folly to think that our law enforcement establishment can be used to identify then deter terrorists.
There is no doubt that multiple court cases have held that warrantless foriegn intelligence is granted as a Presidential power in Article II. The NSA program actually may not be much of a constitutionality issue.
I think that it is also almost without doubt that the NSA program, from the little we do know, violated the Foriegn Intelligence Surveillance Act.
We’ll see how the appeals interpret all these variables.
JRDickens, what are you talking about? The NSA is not a law enforcement entity, it’s an intelligence entity–and believe me, intelligence is a huge requirement in the GWOT.
I have the perfect solution, however. We will spy on the Brits, and have the Brits spy on us. If the Brits notice anything awry, Blair will phone up Bush and give him the inside scoop on who to track and get warrants for. Meanwhile, Bush can do the same for Britain. Since America spying on Britain isn’t unconstitutional, and spying on America by Britain isn’t unconstitutional there either, problem solved!
Lower Court Opinions Are Briefs to Higher Courts: If you’re a judge, your first responsibility is of course to reach the conclusion that you think is legally right, and to explain it using those arguments that you think are most sound. But once you have that figured out, presumably you’d want to maximize your chances of being affirmed â€â€? since by hypothesis your approach is the correct one, and you’d like to see it kept rather than being overruled. And that must be doubly so when you not only think the result you reached is right, but are passionate about it.
You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it’s likely that the decision will be appealed. In some cases, you might conclude that the higher court judges just won’t care what you write, because they’ll make up their minds based on their own considerations. Yet even in ideologically polarizing cases, there are usually at least some judges who may be swayed by persuasive argument, especially from a fellow federal judge.
By that standard, the judge’s opinion in today’s NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion (”[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature,” emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges â€â€? especially when the opinion is rich in generalities, platitudes (”There are no hereditary Kings in America and no powers not created by the Constitution”), and “obviously”’s, and poor in detailed discussion of some of the government’s strongest arguments.
Jeff Rosen once faulted Justice Blackmun for a judicial approach that was so emotional that it undermined his ability to implement the very ideas that he passionately believed; his “tendency to let his heart get the better of his head,” Rosen argued, would “deprive[] him of lasting influence.” (Others have argued that Justice Scalia’s pugnacity might have a similar effect.) It seems to me that by writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.
“[B]y writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.”
Actually Alasdair, I do believe that a foreign entity spying on an American citizen is illegal and you can bet that if a government Democrat or Republican were to allow it, or remain willfully ignorant of it, they would get themselves booted out of office faster than you can say “Impeach”.
What bothers me almost as much as the fact that Bush is doing this, is the fact that there are people in this country like Alasdair who are perfectly ok with it. It bothers me for two reasons, the first being its a violation of my privacy and 4th ammendment rights, and even more that it is completely unnecessary!
I’ll say it again. We do not have the resources to even come close to monitoring all communications effectively and in order to even zero in on who might be talking to other terrorists you allready need to know at least ONE person who is a terrorist thta they are talking to. If you know that then you can tap THEIR records with a warrant! There are perfctly workable solutions that fall within the law right now. It is simply the utter arrogance of this administration that they think they don’t have to follow the laws, and they use FUD to try and convince people their abuse of power is somehow good for them. Sorry but if you want to do something like this you first need to make an argument that it provides substantial benefit and then use the established process to change the law and/or constitution to allow it. Saying “The laws don’t work, we need to do this instead” is absolutely and utterly WRONG.
It cited the “U.S. military and state secrets privilege” and argued the government would not be able to defend the domestic spying program without disclosing classified information.
Um, either it is legal to listen in on conversations involving U.S. citizens without getting a warrant or it isn’t. I fail to see how one would have to disclose classified information to defend that stance. We aren’t asking them HOW they spied on people, or even who they spied on. The courts aren’t asking them whether or not what they learned from the program provided useful information or not. What is at issue is whether or not spying on U.S. citizens is legal. All one needs to do is look at the Constitution and other laws to make that case. Unless there are some sort of double-secret laws out there that we don’t know about, which raises all sorts of new questions.
How is it that people who claim to want to defend freedom are so excited about the idea of this ruling being overturned? What is the point of fighting terrorism if it requires us to give up essential freedoms like the Fourth Ammendment? Look, if you suspect me of something because I, as an American citizen, make an overseas phone call to someone who may or may not be a terrorist, then get a damn warrant. If you don’t have enough evidence to obtain a warrant from even the FISA court, the least stringent court in this counrty when it comes to that sort of thing, then too bad. If my choice is between living in a police state, or living in a country that might be hit by a terrorist attack, i’ll choose the later, because its better to die on my feet, then live on my knees.
Do i want to stop terrorists? Absolutely. But do it within the law, and if you can’t change the law. Make the case that what you want to do is worth sacrificing some freedom or another. But it better be a damn good argument, and there better not be alternatives that are as effective or better that don’t involve me wondering whether the government is listening in on my conversations or reading my e-mails.
If you really do value freedom then you should be celebrating this decision, and demanding that rather than taking advantage of our fears in order to grab at more and more power, that this administration do things that will actually increase our security, like better airport and seaport screening technology, funding reasearch into alternative fuels to lessen our dependence on foreign oil, stop the massive deficit spending that puts our financial security in the hands of such allies as the Chinese, catching actual terrorist threats like Osama bin Ladin, and more practical things of that nature.
“How is it that people who claim to want to defend freedom are so excited about the idea of this ruling being overturned?”
Because maybe they believe that this ruling removes an effective tool in combating the all too real threat of terrorism, in order to remove what is, at best, only a perceived and entirely theoretical encroachment on civil liberties. And maybe because of the ample precedent that POTUS has the constitutional power under Article II to order warrantless surveillance for national security purposes in cases dealing with DOMESTIC warrantless intercepts (as opposed to the int’l communications at issue in this case that fall within the NSA program).
“What is the point of fighting terrorism if it requires us to give up essential freedoms like the Fourth Ammendment?”
The Fourth Amendment, properly understood, is not being given up by this program unless one can demonstrate that the warrantless searches at issue are unreasonable, or that they don’t fall within an established exception to the requirement of a warrant.
“Look, if you suspect me of something because I, as an American citizen, make an overseas phone call to someone who may or may not be a terrorist, then get a damn warrant. If you don’t have enough evidence to obtain a warrant from even the FISA court, the least stringent court in this counrty when it comes to that sort of thing, then too bad.”
What if the 72-hour emergency provision of FISA is inadequate to the task of monitoring communications to/from you, David the suspected terrorist, before the trail goes cold? What if FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted? What if, to initiate surveillance under a FISA emergency authorization, intelligence officers have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, and then lawyers at the DOJ would have to be similarly satisfied, and then finally the Attorney General would have to be satisfied that the search meets the requirements of FISA? What if all that then has to be followed up with a full FISA application within the 72 hours, involving: the work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the FBI Director, or other such officer; and, finally, of course, the approval of a judge? What if this “emergency” process in reality would take days, if not weeks, to complete . . and it must be completed before surveillance of you can even begin, David?
“Make the case that what you want to do is worth sacrificing some freedom or another.”
Anyone not living in a tree over the past week appreciates the need for aggressive wiretapping. And if you’re this easily bent out of shape, David, the Brits’ surveillance would make your head explode.
“But it better be a damn good argument, and there better not be alternatives that are as effective or better that don’t involve me wondering whether the government is listening in on my conversations or reading my e-mails.”
Dude, someone like you who automatically assumes a nefarious motive on the part of American authorities who wanted to arrest the UK terrorist suspects before the Brits did will ALWAYS be wondering whether the gov’t is listening to your phone calls, reading your emails, or sneaking into your kitchen at night to dump nuclear waste down your garbage disposal. WAIT! Ssshhh . . . did you hear that? What was that . . .
“If you really do value freedom then you should be celebrating this decision, and demanding that rather than taking advantage of our fears . . .”
President Taylor
A federal judge rewrites the Constitution on war powers.
Friday, August 18, 2006 12:01 a.m. EDT
In our current era of polarized politics, it was probably inevitable that some judge somewhere would strike down the National Security Agency’s warrantless wiretaps as unconstitutional. The temptations to be hailed as Civil Libertarian of the Year are just too great.
So we suppose a kind of congratulations are due to federal Judge Anna Diggs Taylor, who won her 10 minutes of fame yesterday for declaring that President Bush had taken upon himself “the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.” Oh, and by the way, the Jimmy Carter appointee also avers that “there are no hereditary Kings in America.” In case you hadn’t heard.
The 44-page decision, which concludes by issuing a permanent injunction against the wiretapping program, will doubtless occasion much rejoicing among the “imperial Presidency” crowd. That may have been part of her point, as, early in the decision, Judge Taylor refers with apparent derision to “the war on terror of this Administration.”
We can at least be grateful that President Taylor’s judgment won’t be the last on the matter. The Justice Department immediately announced it will appeal and THE INJUNCTION HAS BEEN STAYED for the moment. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death.
So let’s set aside the judge’s Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The “unreasonable search and seizure” and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King’s political opponents under general and often secret warrants.
Judge Taylor sees an analogy here, but she manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and NOT A SINGLE SPECIFIC DOMESTIC ABUSE OF SUCH A WIRETAP HAS YET BEEN EVEN ALLEGED, MUCH LESS FOUND.
As for the First Amendment, Judge Taylor asserts that the plaintiffs–a group that includes the ACLU and assorted academics, lawyers and journalists who believe their conversations may have been tapped but almost surely weren’t–had their free-speech rights violated because al Qaeda types are now afraid to speak to them on the phone.
But the wiretapping program is not preventing anyone from speaking on the phone. Quite the opposite–if the terrorists stopped talking on the phone, there would be nothing to wiretap. Perhaps the plaintiffs should have sued the New York Times, as it was that paper’s disclosure of the program that created the “chill” on “free speech” that Judge Taylor laments.
The real nub of this dispute is the Constitution’s idea of “inherent powers,” although those two pages of her decision are mostly devoted to pouring scorn on the very concept. But jurists of far greater distinction than Judge Taylor have recognized that the Constitution vests the bulk of war-making power with the President. It did so, as the Founders explained in the Federalist Papers, for reasons of energy, dispatch, secrecy and accountability.
BEFORE YESTERDAY, NO AMERICAN COURT HAD EVER RULED THAT THE PRESIDENT LACKED THE CONSTIUTIONAL RIGHT TO CONDUCT SUCH WIRETAPS. President Carter signed the 1978 FISA statute that established the special court to approve domestic wiretaps even as his Administration declared it was not ceding any Constitutional power. And in the 2002 decision In Re: Sealed Case, the very panel of appellate judges that hears FISA appeals noted that in a previous FISA case (U.S. v. Truong), a federal “court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” We couldn’t find Judge Taylor’s attempt to grapple with those precedents, perhaps because they’d have interfered with the lilt of her purple prose.
UNLIKE JUDGE TAYLOR, PRESIDENTS ARE ACCOUNTABLE TO THE VOTERS FO THEIR WAR-MAKING DECISIONS, AS THE CURRENT WHITE HOUSE OCCUPANT HAS DISCOVERED. JUDGE TAYLOR CAN WRITE HER OPINION AND POSE FOR THE CAMERAS–AND NO ONE CAN HOLD HER ACCOUNTABLE FOR ANY AMERICANS WHO MIGHT DIE AS A RESULT.
What if the 72-hour emergency provision of FISA is inadequate to the task of monitoring communications to/from you, David the suspected terrorist, before the trail goes cold? What if FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted? What if, to initiate surveillance under a FISA emergency authorization, intelligence officers have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, and then lawyers at the DOJ would have to be similarly satisfied, and then finally the Attorney General would have to be satisfied that the search meets the requirements of FISA? What if all that then has to be followed up with a full FISA application within the 72 hours, involving: the work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the FBI Director, or other such officer; and, finally, of course, the approval of a judge? What if this “emergency� process in reality would take days, if not weeks, to complete . . and it must be completed before surveillance of you can even begin, David?
All very interesting and possibly true. And all that you have done is given a case where one should CHANGE THE EXISTING LAW AND NOT IGNORE IT!
Is it possible that current laws need to be changed to adjust to changing needs in fighting terrorism? Sure. But you don’t simply ignore existing laws! THAT IS ILLEGAL.
Because maybe they believe that this ruling removes an effective tool in combating the all too real threat of terrorism, in order to remove what is, at best, only a perceived and entirely theoretical encroachment on civil liberties. And maybe because of the ample precedent that POTUS has the constitutional power under Article II to order warrantless surveillance for national security purposes in cases dealing with DOMESTIC warrantless intercepts (as opposed to the int’l communications at issue in this case that fall within the NSA program).
Again, if the tool is necessary then change the law to acomodate it, but you don’t want that. You want me to just accept an encroachment on my freedoms because the government merely says its necessary, no questions asked, no oversight, just let them do what they want.
Anyone not living in a tree over the past week appreciates the need for aggressive wiretapping. And if you’re this easily bent out of shape, David, the Brits’ surveillance would make your head explode.
The only thing that makes my head explode is how people who keep shouting about defending freedom are also the ones who want us to give up the most freedoms. I do appreciate the need for surveilance, but again, WITHIN THE LAW. And guess what, the brit’s surveillance isn’t at issue here, and i frankly care very little about it. Know why? Because their laws are different than ours. If what they are doing falls under their laws then good for them. But we have different laws in this country, and yet again I must point out that simply ignoring them because you think you need to is wrong. The ends do NOT justify the means. If you or others feel that this threat is so serious that we must give up essential freedoms like the right to be free of surveillance absent a warrant then its up to YOU to make the case that the law needs to be changed.
Dude, someone like you who automatically assumes a nefarious motive on the part of American authorities who wanted to arrest the UK terrorist suspects before the Brits did will ALWAYS be wondering whether the gov’t is listening to your phone calls, reading your emails, or sneaking into your kitchen at night to dump nuclear waste down your garbage disposal. WAIT! Ssshhh . . . did you hear that? What was that . . .
Dude, i don’t assume nefarious motives at all. I do, however, based on extensive previous behavior assume skepticism when THIS administration says “trust us, its legal”.
And it doesn’t matter one lick whether or not the goverment is listening in on MY calls or reading MY e-mails. I am well aware of the technical infeasibility fo them doing that for all Americans, most Americans or even SOME Americans. What matters is that even if they listen in on ONE persons phone call without a warrant is that letting them get away with it means they might keep doing it, and yes eventually they might encroach on my freedoms. If you aren’t interested in the dangers of allowing encroachment on freedoms then i suggest you really don’t want to actually defend freedom, and I can suggest some countries you might move to where questioning the government is the bad thing you think it is.
David, despite your misinformed hyperventilating, it’s not at all clear that the law actually needs to be changed in order to accomodate the NSA’s actions here. I’ll allow for the possibility that it might be, but it absolutely, positively is NOT the open-and-shut case that you (or Judge Taylor, for that matter) think it is. I can understand how you might think you already know all you need to know about constitutional interpretation and the interaction between the 4th Amendment and the separation of powers without having gone to law school . . . after all, having skimmed through Judge Taylor’s opinion, it looks like it could’ve well been written by YOU, David. And that’s precisely the problem. This decision is short on precedent and analysis, and long on “obviously”’s, empty platitudes and transparent sniping at the Bush Administration.
Anyhoo, I have neither the time nor the inclination to teach you the law, David. Pay your money to be lectured by cloistered academics for 3 years like the rest of us :-)
Oh, and your suggestion that I move to another country is priceless, David. I’ve been inside real police states, and highly recommend it to anyone silly enough to think the U.S. is becoming one and throws out empty rhetoric like “If my choice is between living in a police state, or living in a country that might be hit by a terrorist attack, i’ll choose the later, because its better to die on my feet, then live on my knees.” You haven’t the first goddamn clue what a police state is, David.
So you think that only someone who has been to a police state can worry that we might be moving in that direction eh? I love the insistance by people like you that the world exists in such a black and white way.
“Either you are with us, or you are with the terrorists”
“Either its a police state, or its not”
You people have clearly demonstrated no understanding of degree. Just because our country isn’t Soviet Russia or North Korea, doesn’t mean that our leaders aren’t doing things that lean in that direction. Apparently in your view though, the only time we should worry is when the pogroms start and people dissapear in the middle of the night, eh?
As for your other point, that its not clear or not whether the law needs to be changed, that is absolutely and completely irrelevant to what you have been arguing. Your argument and the argument of so many others hasn’t been “Look, this is really legal and let my show you why”. No, it has been “We need this to fight terrorism”, completely and utterly ignoring whether or not it actually is legal or not!
But go ahead, call it “hyperventillating” when I try and argue against further encroachments on our freedoms. I guess its easier to do that than make an actual argument.
On a (somewhat) different topic, here’s a hilarious excerpt from a column entitled “The Case For Profiling” in today’s print edition of the New York Post:
“You may remember the New York Civil Liberties Union (NYCLU) sued when the NYPD instituted random bag searches on the subway. Yet a sign at the NYCLU building warned that the orginization had the right to search the bags of all people entering there.”
Not to get too mired into this discussion as it seems like retreading the same ground but:
A) FISA Court has already ruled on warrantless taps:
“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”
B) This information is not used for law enforcement purposes but for foreign intelligence gathering.
SO, courts have ruled that the Fourth Amendment is not broken by warrantless taps. And the nature of the information gathering is foreign intelligence.
Mama, yes, but the NYCLU building is private property–they can have whatever requirements they want… Just like Brendan can erase any comments he wants and it is not a violation of free speech… (c.f. state action)
You’re quite right, dcl. Of course, I wasn’t saying that what the NYCLU was doing is unconstitutional. I was merely pointing out a glaring instance of hypocrisy. Kind of like how when celebrity nitwits like Rosie O’Donnell blather on about gun control and right to carry laws and all that, but then hire armed body guards to protect them and their families while out in public . . . not illegal and unconstitutional by any stretch, just hypocritical and funny.
Just curious… but how do you expect people to take you seriously as a legal student when you’re actually proposing that the U.S. Constitution doesn’t provide for the illegality of unreasonable searches and seizures (aka fishing expeditions)… Do you even have any clue how much prior law you’re arguing against?
Um, no Joe Mama, its NOT inconsistent for someone who wants stricter gun control laws to hire someone who uses a gun. If she were saying that there should be NO guns or that anyone who uses guns is wrong THAT would be hypocritical.
Its also not even remotely close to inconsistent for the ACLU to, as is their right, search bags in a PRIVATE building, but to oppose the police doing so in a PUBLIC space when said behavior by the police is against the law. Again it would only be hypocritical if their argument was “No one should EVER search someones bags”. That is not even close to their argument. The ACTUAL argument being put forth is that “It is illegal and unconstitutional for the police to search your bags in a public place without a warrant”.
Once again I must point out to you that the world is NOT as black and white as you seem to think it is.
Not to get too mired into this discussion as it seems like retreading the same ground but:
A) FISA Court has already ruled on warrantless taps:
“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.�
B) This information is not used for law enforcement purposes but for foreign intelligence gathering.
SO, courts have ruled that the Fourth Amendment is not broken by warrantless taps. And the nature of the information gathering is foreign intelligence.
Yes, some courts have made rulings on this, and now a different court has ruled that decision was incorrect, or something to that degree. Just because one court, or even multiple courts rule one way, does not mean that that decision is now carved in stone. I’m not sure where in the heirarchy the FISA court stands, but frankly since the court was created for ruling on whether a warrant is valid or not, i am skeptical if they even have the judicial authority to make that kind of ruling.
Regardless, my problem with Joe Mama has not been the idea that a court might rule that the Presidents behavior was legal, or that the laws might be changed to make it so (I do think that would be wrong, but at least it would be within the proscribed methods of the law to do so. No, my problem is that he is putting forth the argument that it is irrelevant whether or not the behavior is legal, the only thing that matters it seems to him, is if the government says we NEED that tool to fight terrorism. He doesn’t even seem to care about oversight or the exploration of whether or not the tool actually DOES provide information that can not be obtained in a legal manner and/or is even releveant
Back to the comments about hypocrisy. Unless you are of the opinion that it is hypocritical that a parent would prohibit their 10 year old child from drinking a beer, while the parent drinks one, then the above hypocrisy claims are simple politically motivated rhetoric.
If the intelligence gathered is not being used against citizens of the US, how does it constitute illegal search or seizure? Especially when it can’t be used without a warrant, and that the FISA court has ruled that when collecting foreign intelligence, a warrant is not needed.
An interesting discussion on what kind of bearing FISA courts have on this, though I don’t see why their having to rule on warrants poisons them from being able to rule on issues such as this. It is still a part of the judiciary branch and a part of oversight.
As for where is stands on the heirarchy of courts, a good question. I’m going to plead ignorance while I do more research on that question, but considering it involves a three judge panel, I sincerely would be surprised if it doesn’t hold more bearing that a circuit level federal court with one judge. Probably closer to a appeals court, but again, I will need to research.
Heh. John and David obviously studied law at the same institution. David, when I read your caricatures of what I said, it’s as if I was a 6′4″ black man named James, and you’re telling me that no, I’m actually a 5′2″ Asian girl named Sara. All I can do is blink and stammer . . .
How about instead of blinking and stammering you try and come up with a coherent argument then.
I’ll make it simple for you if you want.
LEGAL: A bag being searched by security (or anyone for that matter) in a private building (although i’m sure there are some additional limitations here.
NOT-LEGAL: Warrantless searching of a bag by police without a warrant in the subways.
What is similar between the two? Searching a bag.
What you are trying to claim (and which makes no sense) is that it is hypocritical for a group to oppose the above non-legal activity, but engage in the above legal activity because they have something (searching a bag) in common.
Now, if the ACLU engaged in a legal bag searching behavior, and at the same time opposed the police bag searching, not because its illegal but because they are opposed to the searching of bags, THAT is hypocritical.
Let me know if you need me to make it any simpler.
GACK ! Can an adult *really* *truly* be so cluelessly naive ?
If there is rational reason to search a bag at a transition from outside a building to inside that building, whether the building is a private one or a public one, then yes, it IS hypocritical to criticise someone else who believes they have a rational reason to search a bag at a transition from outside a subway to inside a subway (or vice versa) …
If nothing else, the ACLU is discriminating against a group when it searches the bags of those entering its building !
Why is it that the Left-leaning keep shying away from the word unreasonable ? Apart from the obvious lack of understanding of or familiarity with the concept, that is ?
David, you’re adorable. First of all, I wasn’t passing judgment on the legality or illegality of searching bags without a warrant in either public or private places, and like I said, I wasn’t saying that either the NYPD’s warrantless searching of bags on subways or the NYCLU’s searching of bags upon entry to its offices is legal or illegal, so you may have to dumb down your point a little more for us. Second, if I may be so bold as to point out some considerations left our of your customary declaratory legal analysis, warrantless searching of bags in a private building can still be done illegaly (e.g., if security only searched the bags of entering black persons as a matter of course), just as warrantless searching of bags in public places can be done legally (e.g., everytime you get on a plane). But again, I’m not sure what point you were trying to make here.
Let me try to explain MY point another way: Ask yourself why the NYPD wants to search random bags of people on subways, and then ask yourself why the NYCLU wants to search bags of people entering its building. Let me know what you come up with. Try not to hurt yourself.
Well you have managed yet again to completely missed the point Joe Mama, and you managed to drag Alasdair in with you.
Whether or not you think there is a good reason or not for the NYPD to search the bags, if it is illegal for them to do so, and the ACLU opposes them for doing something ILLEGAL then there is nothing hypocritical of them engaging in a similar behavior which is *GASP* legal. I don’t know how much simpler i can make it for you. But here goes.
Opposing behavior A when it is being done illegally while supporting behavior A when it is done legally is NOT hypocritical unless you oppose the behavior not because its illegal but because it is behavior A.
Again, I point to drinking. It is NOT hypocritical for a parent to prohibit their underage child from drinking while they themselves drink legally. It IS hypocritical for them to oppose their child drinking and for them to drink if they do so because they think the act of DRINKING is wrong.
If you can’t grasp that simple concept then I think you need to take some remedial logic courses.
Heh. David, you’re just way too smart for me. I would think someone as brilliant as yourself could explain to dolts like me why the NYCLU would want to search bags of people entering its building and why the NYPD would want to search bags of people entering the subways, but you obviously don’t want to go there.
You’re only distinction between the two is that one is illegal and the other legal, and thus there is no hypocrisy. That might be a convenient (albeit circular) dodge, except that, as with most issues you comment on, YOU DON’T KNOW WHAT THE HELL YOU’RE TALKING ABOUT, David. It’s NOT ILLEGAL for the NYPD to conduct random bag searches on subways:
I didn’t want to get into the subject of legality because it’s beside my original point, which is that the NYCLU appears (nay, is IMHO) hypocritical when they search bags of those entering their building, but then turn around and sue the NYPD for doing more or less the same thing in the subways. But since you’re argument hinges on the illegality of the NYPD searches, I must therefore correct you on this point, David.
To be a good sport, I’ll concede that there MAY be material differences in the way the those two kinds of searches are conducted (e.g., the NYCLU searches everyone who enters their building, while the NYPD has the resources to do only do random bag checks). But of course, the threat of terrorism is also quite different for subways than it is for the NYCLU office, which would necessitate different search methods.
August 17th, 2006 at 10:38:04 am
U.S. District Judge Anna Diggs Taylor was nominated by (drum roll please) . . . Jimmy Carter.
This is why we have appeals courts, folks.
August 17th, 2006 at 10:51:55 am
Indeed, Joe. Damnable activist judges, just inventing laws. Who are they to say that warrantless surveillance is unconstitutional just because the Constitution clearly says in no uncertain terms that people are secure in their persons and papers when you don’t have a warrant?
August 17th, 2006 at 11:09:43 am
Yes, well, let’s all just hold our horses, shall we, and wait and see what the appeals court and ultimately the Supreme Court decides, since this one is obviously going to go all the way up. The decision appears flawed, in that it doesn’t even address the obvious legal counterarguments. And, contra Sean, dcl, etc., this is NOT a clear-cut issue. One can pick up the Constitution and conclude as an armchair commentator without any knowledge of the relevant precedents that the program is obviously unconstitutional, but that doesn’t necessarily make it so, as a matter of constitutional law as it currently exists in this country. (Of course, one is free to disagree with constitutional law as it currently exists in this country — i.e., with how the Supreme Court has interpreted the Fourth Amendment and applied it to modern circumstances over the last few decades — but that disagreement doesn’t mean this decision will be upheld.)
August 17th, 2006 at 11:19:20 am
P.S. To be clear: when I say it’s “NOT a clear-cut issue” … I mean that. It’s not clear-cut in either direction, from what I’ve read about it.
I don’t know how this issue will ultimately turn out. I also don’t know how I think it should. So that’s not my point. I just don’t particularly think it’s helpful when people — on either side — act like they do know how it will turn out, when in fact they only think they know, based on an armchair, de novo interpretation of the Constitution divorced from all precedent and context.
August 17th, 2006 at 11:33:03 am
So Joe: do you think we should be equally dismissive of any judge nominated by a conservative? Are their decisions bygone conclusions just as much as you seem to insinuate that decisions by liberal judges are, and therefore invalid?
Anna Diggs Taylor gave the government two extensions to justify their position, so it seems that at least she was being charitable to them. They refused to do so, on the premise that telling the court why they’re right would jeopardize national security. I can see why, as a judge, she might not buy that argument.
August 17th, 2006 at 11:34:20 am
My favorite part? The governments defense is basically “The President has this authority, but we can’t tell you why cause its a secret, so umm, just trust us!”
August 17th, 2006 at 11:44:54 am
Another Federal judge is deciding whether the entire Bush administration is unconstitutional. A decision will be forthcoming.
August 17th, 2006 at 11:46:47 am
Brendan and Joe -
I don’t agree with David on the constitutionality part of this issue, but his characterization of the Government’s position is accurate. The government did say, they would make a complete defense due to the secret nature of the case. That’s pretty weak. Did the government lawyers request sealed court records and were they granted?
Now, as to the plantiffs, I find their argument as to why they brought their case to be ridiculously strained. They can’t prove harm at all, so assumptions have to be made. And if this goes to the SC, a prediction:
The SC will punt on the constitutionality issue and rule that the plantiffs did not have grounds to bring the case because they can’t show harm.
But frankly, after reading the news report, my opinion is I’ll take notice AFTER the circuit court makes its decision.
August 17th, 2006 at 11:47:45 am
*EDIT*
“The government did say, they would make a complete defense due to the secret nature of the case. ”
Should read:
The government did say, they WOULDN’T make a complete defense due to the secret nature of the case.
August 17th, 2006 at 12:03:08 pm
No Briandot, I don’t think we should be dismissive judges based solely on who nominated them. I admit being flippant in my previous comment :-) It does lend some interesting context, though. And if the gov’t indeed committed faulty motion practice, then that’s their problem, not the plaintiffs’. Not having read the opinion, I’m curious what, if anything, the court said about the question of whether the plaintiffs’ had standing to sue. I can’t imagine that wasn’t an issue in the litigation.
August 17th, 2006 at 12:22:30 pm
After going through the opinion, I find the opinion on the Plantiff’s standing to be weak. In effect, the judge’s opinion is that because international contacts would no longer talk to them, it had to be because of the NSA, so it was concrete harm caused. Problem is that they cannot still point to in INSTANCE of it. All you have is a group of Doctors, Lawyers, and Journalists complaining about their patients, clients, and sources not talking to them out of fear of the program.
Though this may sound like harm, a ‘chilling effect’ is still a conjectural and abstract harm, not a concrete one. The judge’s opinion on why this is different is because the international sources are ‘chilled’ and not the plantiffs.
August 17th, 2006 at 12:25:36 pm
Just another example of trying to use police to fight a war. It is folly to think that our law enforcement establishment can be used to identify then deter terrorists.
August 17th, 2006 at 1:52:47 pm
There is no doubt that multiple court cases have held that warrantless foriegn intelligence is granted as a Presidential power in Article II. The NSA program actually may not be much of a constitutionality issue.
I think that it is also almost without doubt that the NSA program, from the little we do know, violated the Foriegn Intelligence Surveillance Act.
We’ll see how the appeals interpret all these variables.
August 17th, 2006 at 3:46:53 pm
JRDickens, what are you talking about? The NSA is not a law enforcement entity, it’s an intelligence entity–and believe me, intelligence is a huge requirement in the GWOT.
I have the perfect solution, however. We will spy on the Brits, and have the Brits spy on us. If the Brits notice anything awry, Blair will phone up Bush and give him the inside scoop on who to track and get warrants for. Meanwhile, Bush can do the same for Britain. Since America spying on Britain isn’t unconstitutional, and spying on America by Britain isn’t unconstitutional there either, problem solved!
What do you think of that, eh David?
August 17th, 2006 at 5:29:49 pm
Entertainingly enough, someone called the result of Judge Diggs’ deliberations a month ago …
Read it - here …
August 17th, 2006 at 5:55:40 pm
More from Volokh:
Lower Court Opinions Are Briefs to Higher Courts: If you’re a judge, your first responsibility is of course to reach the conclusion that you think is legally right, and to explain it using those arguments that you think are most sound. But once you have that figured out, presumably you’d want to maximize your chances of being affirmed â€â€? since by hypothesis your approach is the correct one, and you’d like to see it kept rather than being overruled. And that must be doubly so when you not only think the result you reached is right, but are passionate about it.
You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it’s likely that the decision will be appealed. In some cases, you might conclude that the higher court judges just won’t care what you write, because they’ll make up their minds based on their own considerations. Yet even in ideologically polarizing cases, there are usually at least some judges who may be swayed by persuasive argument, especially from a fellow federal judge.
By that standard, the judge’s opinion in today’s NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion (”[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature,” emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges â€â€? especially when the opinion is rich in generalities, platitudes (”There are no hereditary Kings in America and no powers not created by the Constitution”), and “obviously”’s, and poor in detailed discussion of some of the government’s strongest arguments.
Jeff Rosen once faulted Justice Blackmun for a judicial approach that was so emotional that it undermined his ability to implement the very ideas that he passionately believed; his “tendency to let his heart get the better of his head,” Rosen argued, would “deprive[] him of lasting influence.” (Others have argued that Justice Scalia’s pugnacity might have a similar effect.) It seems to me that by writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.
http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155856506
August 17th, 2006 at 5:57:15 pm
“[B]y writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.”
One can only hope :-)
August 17th, 2006 at 6:10:29 pm
Actually Alasdair, I do believe that a foreign entity spying on an American citizen is illegal and you can bet that if a government Democrat or Republican were to allow it, or remain willfully ignorant of it, they would get themselves booted out of office faster than you can say “Impeach”.
What bothers me almost as much as the fact that Bush is doing this, is the fact that there are people in this country like Alasdair who are perfectly ok with it. It bothers me for two reasons, the first being its a violation of my privacy and 4th ammendment rights, and even more that it is completely unnecessary!
I’ll say it again. We do not have the resources to even come close to monitoring all communications effectively and in order to even zero in on who might be talking to other terrorists you allready need to know at least ONE person who is a terrorist thta they are talking to. If you know that then you can tap THEIR records with a warrant! There are perfctly workable solutions that fall within the law right now. It is simply the utter arrogance of this administration that they think they don’t have to follow the laws, and they use FUD to try and convince people their abuse of power is somehow good for them. Sorry but if you want to do something like this you first need to make an argument that it provides substantial benefit and then use the established process to change the law and/or constitution to allow it. Saying “The laws don’t work, we need to do this instead” is absolutely and utterly WRONG.
August 17th, 2006 at 6:16:18 pm
Back to the governments statement:
It cited the “U.S. military and state secrets privilege” and argued the government would not be able to defend the domestic spying program without disclosing classified information.
Um, either it is legal to listen in on conversations involving U.S. citizens without getting a warrant or it isn’t. I fail to see how one would have to disclose classified information to defend that stance. We aren’t asking them HOW they spied on people, or even who they spied on. The courts aren’t asking them whether or not what they learned from the program provided useful information or not. What is at issue is whether or not spying on U.S. citizens is legal. All one needs to do is look at the Constitution and other laws to make that case. Unless there are some sort of double-secret laws out there that we don’t know about, which raises all sorts of new questions.
August 17th, 2006 at 6:24:00 pm
One can only hope :-)
How is it that people who claim to want to defend freedom are so excited about the idea of this ruling being overturned? What is the point of fighting terrorism if it requires us to give up essential freedoms like the Fourth Ammendment? Look, if you suspect me of something because I, as an American citizen, make an overseas phone call to someone who may or may not be a terrorist, then get a damn warrant. If you don’t have enough evidence to obtain a warrant from even the FISA court, the least stringent court in this counrty when it comes to that sort of thing, then too bad. If my choice is between living in a police state, or living in a country that might be hit by a terrorist attack, i’ll choose the later, because its better to die on my feet, then live on my knees.
Do i want to stop terrorists? Absolutely. But do it within the law, and if you can’t change the law. Make the case that what you want to do is worth sacrificing some freedom or another. But it better be a damn good argument, and there better not be alternatives that are as effective or better that don’t involve me wondering whether the government is listening in on my conversations or reading my e-mails.
If you really do value freedom then you should be celebrating this decision, and demanding that rather than taking advantage of our fears in order to grab at more and more power, that this administration do things that will actually increase our security, like better airport and seaport screening technology, funding reasearch into alternative fuels to lessen our dependence on foreign oil, stop the massive deficit spending that puts our financial security in the hands of such allies as the Chinese, catching actual terrorist threats like Osama bin Ladin, and more practical things of that nature.
August 17th, 2006 at 8:25:42 pm
“How is it that people who claim to want to defend freedom are so excited about the idea of this ruling being overturned?”
Because maybe they believe that this ruling removes an effective tool in combating the all too real threat of terrorism, in order to remove what is, at best, only a perceived and entirely theoretical encroachment on civil liberties. And maybe because of the ample precedent that POTUS has the constitutional power under Article II to order warrantless surveillance for national security purposes in cases dealing with DOMESTIC warrantless intercepts (as opposed to the int’l communications at issue in this case that fall within the NSA program).
“What is the point of fighting terrorism if it requires us to give up essential freedoms like the Fourth Ammendment?”
The Fourth Amendment, properly understood, is not being given up by this program unless one can demonstrate that the warrantless searches at issue are unreasonable, or that they don’t fall within an established exception to the requirement of a warrant.
“Look, if you suspect me of something because I, as an American citizen, make an overseas phone call to someone who may or may not be a terrorist, then get a damn warrant. If you don’t have enough evidence to obtain a warrant from even the FISA court, the least stringent court in this counrty when it comes to that sort of thing, then too bad.”
What if the 72-hour emergency provision of FISA is inadequate to the task of monitoring communications to/from you, David the suspected terrorist, before the trail goes cold? What if FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted? What if, to initiate surveillance under a FISA emergency authorization, intelligence officers have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, and then lawyers at the DOJ would have to be similarly satisfied, and then finally the Attorney General would have to be satisfied that the search meets the requirements of FISA? What if all that then has to be followed up with a full FISA application within the 72 hours, involving: the work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the FBI Director, or other such officer; and, finally, of course, the approval of a judge? What if this “emergency” process in reality would take days, if not weeks, to complete . . and it must be completed before surveillance of you can even begin, David?
“Make the case that what you want to do is worth sacrificing some freedom or another.”
Anyone not living in a tree over the past week appreciates the need for aggressive wiretapping. And if you’re this easily bent out of shape, David, the Brits’ surveillance would make your head explode.
“But it better be a damn good argument, and there better not be alternatives that are as effective or better that don’t involve me wondering whether the government is listening in on my conversations or reading my e-mails.”
Dude, someone like you who automatically assumes a nefarious motive on the part of American authorities who wanted to arrest the UK terrorist suspects before the Brits did will ALWAYS be wondering whether the gov’t is listening to your phone calls, reading your emails, or sneaking into your kitchen at night to dump nuclear waste down your garbage disposal. WAIT! Ssshhh . . . did you hear that? What was that . . .
“If you really do value freedom then you should be celebrating this decision, and demanding that rather than taking advantage of our fears . . .”
Who’s the fear monger here, David?
August 18th, 2006 at 6:38:56 am
President Taylor
A federal judge rewrites the Constitution on war powers.
Friday, August 18, 2006 12:01 a.m. EDT
In our current era of polarized politics, it was probably inevitable that some judge somewhere would strike down the National Security Agency’s warrantless wiretaps as unconstitutional. The temptations to be hailed as Civil Libertarian of the Year are just too great.
So we suppose a kind of congratulations are due to federal Judge Anna Diggs Taylor, who won her 10 minutes of fame yesterday for declaring that President Bush had taken upon himself “the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.” Oh, and by the way, the Jimmy Carter appointee also avers that “there are no hereditary Kings in America.” In case you hadn’t heard.
The 44-page decision, which concludes by issuing a permanent injunction against the wiretapping program, will doubtless occasion much rejoicing among the “imperial Presidency” crowd. That may have been part of her point, as, early in the decision, Judge Taylor refers with apparent derision to “the war on terror of this Administration.”
We can at least be grateful that President Taylor’s judgment won’t be the last on the matter. The Justice Department immediately announced it will appeal and THE INJUNCTION HAS BEEN STAYED for the moment. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death.
So let’s set aside the judge’s Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The “unreasonable search and seizure” and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King’s political opponents under general and often secret warrants.
Judge Taylor sees an analogy here, but she manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and NOT A SINGLE SPECIFIC DOMESTIC ABUSE OF SUCH A WIRETAP HAS YET BEEN EVEN ALLEGED, MUCH LESS FOUND.
As for the First Amendment, Judge Taylor asserts that the plaintiffs–a group that includes the ACLU and assorted academics, lawyers and journalists who believe their conversations may have been tapped but almost surely weren’t–had their free-speech rights violated because al Qaeda types are now afraid to speak to them on the phone.
But the wiretapping program is not preventing anyone from speaking on the phone. Quite the opposite–if the terrorists stopped talking on the phone, there would be nothing to wiretap. Perhaps the plaintiffs should have sued the New York Times, as it was that paper’s disclosure of the program that created the “chill” on “free speech” that Judge Taylor laments.
The real nub of this dispute is the Constitution’s idea of “inherent powers,” although those two pages of her decision are mostly devoted to pouring scorn on the very concept. But jurists of far greater distinction than Judge Taylor have recognized that the Constitution vests the bulk of war-making power with the President. It did so, as the Founders explained in the Federalist Papers, for reasons of energy, dispatch, secrecy and accountability.
BEFORE YESTERDAY, NO AMERICAN COURT HAD EVER RULED THAT THE PRESIDENT LACKED THE CONSTIUTIONAL RIGHT TO CONDUCT SUCH WIRETAPS. President Carter signed the 1978 FISA statute that established the special court to approve domestic wiretaps even as his Administration declared it was not ceding any Constitutional power. And in the 2002 decision In Re: Sealed Case, the very panel of appellate judges that hears FISA appeals noted that in a previous FISA case (U.S. v. Truong), a federal “court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” We couldn’t find Judge Taylor’s attempt to grapple with those precedents, perhaps because they’d have interfered with the lilt of her purple prose.
UNLIKE JUDGE TAYLOR, PRESIDENTS ARE ACCOUNTABLE TO THE VOTERS FO THEIR WAR-MAKING DECISIONS, AS THE CURRENT WHITE HOUSE OCCUPANT HAS DISCOVERED. JUDGE TAYLOR CAN WRITE HER OPINION AND POSE FOR THE CAMERAS–AND NO ONE CAN HOLD HER ACCOUNTABLE FOR ANY AMERICANS WHO MIGHT DIE AS A RESULT.
http://www.opinionjournal.com/editorial/feature.html?id=110008816
August 18th, 2006 at 8:51:05 am
What if the 72-hour emergency provision of FISA is inadequate to the task of monitoring communications to/from you, David the suspected terrorist, before the trail goes cold? What if FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted? What if, to initiate surveillance under a FISA emergency authorization, intelligence officers have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, and then lawyers at the DOJ would have to be similarly satisfied, and then finally the Attorney General would have to be satisfied that the search meets the requirements of FISA? What if all that then has to be followed up with a full FISA application within the 72 hours, involving: the work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the FBI Director, or other such officer; and, finally, of course, the approval of a judge? What if this “emergency� process in reality would take days, if not weeks, to complete . . and it must be completed before surveillance of you can even begin, David?
All very interesting and possibly true. And all that you have done is given a case where one should CHANGE THE EXISTING LAW AND NOT IGNORE IT!
Is it possible that current laws need to be changed to adjust to changing needs in fighting terrorism? Sure. But you don’t simply ignore existing laws! THAT IS ILLEGAL.
Because maybe they believe that this ruling removes an effective tool in combating the all too real threat of terrorism, in order to remove what is, at best, only a perceived and entirely theoretical encroachment on civil liberties. And maybe because of the ample precedent that POTUS has the constitutional power under Article II to order warrantless surveillance for national security purposes in cases dealing with DOMESTIC warrantless intercepts (as opposed to the int’l communications at issue in this case that fall within the NSA program).
Again, if the tool is necessary then change the law to acomodate it, but you don’t want that. You want me to just accept an encroachment on my freedoms because the government merely says its necessary, no questions asked, no oversight, just let them do what they want.
Anyone not living in a tree over the past week appreciates the need for aggressive wiretapping. And if you’re this easily bent out of shape, David, the Brits’ surveillance would make your head explode.
The only thing that makes my head explode is how people who keep shouting about defending freedom are also the ones who want us to give up the most freedoms. I do appreciate the need for surveilance, but again, WITHIN THE LAW. And guess what, the brit’s surveillance isn’t at issue here, and i frankly care very little about it. Know why? Because their laws are different than ours. If what they are doing falls under their laws then good for them. But we have different laws in this country, and yet again I must point out that simply ignoring them because you think you need to is wrong. The ends do NOT justify the means. If you or others feel that this threat is so serious that we must give up essential freedoms like the right to be free of surveillance absent a warrant then its up to YOU to make the case that the law needs to be changed.
Dude, someone like you who automatically assumes a nefarious motive on the part of American authorities who wanted to arrest the UK terrorist suspects before the Brits did will ALWAYS be wondering whether the gov’t is listening to your phone calls, reading your emails, or sneaking into your kitchen at night to dump nuclear waste down your garbage disposal. WAIT! Ssshhh . . . did you hear that? What was that . . .
Dude, i don’t assume nefarious motives at all. I do, however, based on extensive previous behavior assume skepticism when THIS administration says “trust us, its legal”.
And it doesn’t matter one lick whether or not the goverment is listening in on MY calls or reading MY e-mails. I am well aware of the technical infeasibility fo them doing that for all Americans, most Americans or even SOME Americans. What matters is that even if they listen in on ONE persons phone call without a warrant is that letting them get away with it means they might keep doing it, and yes eventually they might encroach on my freedoms. If you aren’t interested in the dangers of allowing encroachment on freedoms then i suggest you really don’t want to actually defend freedom, and I can suggest some countries you might move to where questioning the government is the bad thing you think it is.
August 18th, 2006 at 9:57:58 am
David, despite your misinformed hyperventilating, it’s not at all clear that the law actually needs to be changed in order to accomodate the NSA’s actions here. I’ll allow for the possibility that it might be, but it absolutely, positively is NOT the open-and-shut case that you (or Judge Taylor, for that matter) think it is. I can understand how you might think you already know all you need to know about constitutional interpretation and the interaction between the 4th Amendment and the separation of powers without having gone to law school . . . after all, having skimmed through Judge Taylor’s opinion, it looks like it could’ve well been written by YOU, David. And that’s precisely the problem. This decision is short on precedent and analysis, and long on “obviously”’s, empty platitudes and transparent sniping at the Bush Administration.
Anyhoo, I have neither the time nor the inclination to teach you the law, David. Pay your money to be lectured by cloistered academics for 3 years like the rest of us :-)
Oh, and your suggestion that I move to another country is priceless, David. I’ve been inside real police states, and highly recommend it to anyone silly enough to think the U.S. is becoming one and throws out empty rhetoric like “If my choice is between living in a police state, or living in a country that might be hit by a terrorist attack, i’ll choose the later, because its better to die on my feet, then live on my knees.” You haven’t the first goddamn clue what a police state is, David.
August 18th, 2006 at 11:22:20 am
So you think that only someone who has been to a police state can worry that we might be moving in that direction eh? I love the insistance by people like you that the world exists in such a black and white way.
“Either you are with us, or you are with the terrorists”
“Either its a police state, or its not”
You people have clearly demonstrated no understanding of degree. Just because our country isn’t Soviet Russia or North Korea, doesn’t mean that our leaders aren’t doing things that lean in that direction. Apparently in your view though, the only time we should worry is when the pogroms start and people dissapear in the middle of the night, eh?
As for your other point, that its not clear or not whether the law needs to be changed, that is absolutely and completely irrelevant to what you have been arguing. Your argument and the argument of so many others hasn’t been “Look, this is really legal and let my show you why”. No, it has been “We need this to fight terrorism”, completely and utterly ignoring whether or not it actually is legal or not!
But go ahead, call it “hyperventillating” when I try and argue against further encroachments on our freedoms. I guess its easier to do that than make an actual argument.
August 18th, 2006 at 11:29:51 am
David,
You’re hyperventilating.
August 18th, 2006 at 11:34:03 am
On a (somewhat) different topic, here’s a hilarious excerpt from a column entitled “The Case For Profiling” in today’s print edition of the New York Post:
“You may remember the New York Civil Liberties Union (NYCLU) sued when the NYPD instituted random bag searches on the subway. Yet a sign at the NYCLU building warned that the orginization had the right to search the bags of all people entering there.”
August 18th, 2006 at 12:08:27 pm
David -
Not to get too mired into this discussion as it seems like retreading the same ground but:
A) FISA Court has already ruled on warrantless taps:
“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”
B) This information is not used for law enforcement purposes but for foreign intelligence gathering.
SO, courts have ruled that the Fourth Amendment is not broken by warrantless taps. And the nature of the information gathering is foreign intelligence.
August 18th, 2006 at 12:21:18 pm
Mama, yes, but the NYCLU building is private property–they can have whatever requirements they want… Just like Brendan can erase any comments he wants and it is not a violation of free speech… (c.f. state action)
August 18th, 2006 at 1:01:29 pm
You’re quite right, dcl. Of course, I wasn’t saying that what the NYCLU was doing is unconstitutional. I was merely pointing out a glaring instance of hypocrisy. Kind of like how when celebrity nitwits like Rosie O’Donnell blather on about gun control and right to carry laws and all that, but then hire armed body guards to protect them and their families while out in public . . . not illegal and unconstitutional by any stretch, just hypocritical and funny.
August 18th, 2006 at 1:12:57 pm
Just curious… but how do you expect people to take you seriously as a legal student when you’re actually proposing that the U.S. Constitution doesn’t provide for the illegality of unreasonable searches and seizures (aka fishing expeditions)… Do you even have any clue how much prior law you’re arguing against?
August 18th, 2006 at 1:19:38 pm
Um, no Joe Mama, its NOT inconsistent for someone who wants stricter gun control laws to hire someone who uses a gun. If she were saying that there should be NO guns or that anyone who uses guns is wrong THAT would be hypocritical.
Its also not even remotely close to inconsistent for the ACLU to, as is their right, search bags in a PRIVATE building, but to oppose the police doing so in a PUBLIC space when said behavior by the police is against the law. Again it would only be hypocritical if their argument was “No one should EVER search someones bags”. That is not even close to their argument. The ACTUAL argument being put forth is that “It is illegal and unconstitutional for the police to search your bags in a public place without a warrant”.
Once again I must point out to you that the world is NOT as black and white as you seem to think it is.
August 18th, 2006 at 1:24:52 pm
David -
Not to get too mired into this discussion as it seems like retreading the same ground but:
A) FISA Court has already ruled on warrantless taps:
“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.�
B) This information is not used for law enforcement purposes but for foreign intelligence gathering.
SO, courts have ruled that the Fourth Amendment is not broken by warrantless taps. And the nature of the information gathering is foreign intelligence.
Yes, some courts have made rulings on this, and now a different court has ruled that decision was incorrect, or something to that degree. Just because one court, or even multiple courts rule one way, does not mean that that decision is now carved in stone. I’m not sure where in the heirarchy the FISA court stands, but frankly since the court was created for ruling on whether a warrant is valid or not, i am skeptical if they even have the judicial authority to make that kind of ruling.
Regardless, my problem with Joe Mama has not been the idea that a court might rule that the Presidents behavior was legal, or that the laws might be changed to make it so (I do think that would be wrong, but at least it would be within the proscribed methods of the law to do so. No, my problem is that he is putting forth the argument that it is irrelevant whether or not the behavior is legal, the only thing that matters it seems to him, is if the government says we NEED that tool to fight terrorism. He doesn’t even seem to care about oversight or the exploration of whether or not the tool actually DOES provide information that can not be obtained in a legal manner and/or is even releveant
August 18th, 2006 at 1:26:00 pm
Back to the comments about hypocrisy. Unless you are of the opinion that it is hypocritical that a parent would prohibit their 10 year old child from drinking a beer, while the parent drinks one, then the above hypocrisy claims are simple politically motivated rhetoric.
August 18th, 2006 at 2:01:18 pm
John -
If the intelligence gathered is not being used against citizens of the US, how does it constitute illegal search or seizure? Especially when it can’t be used without a warrant, and that the FISA court has ruled that when collecting foreign intelligence, a warrant is not needed.
August 18th, 2006 at 2:06:10 pm
David -
An interesting discussion on what kind of bearing FISA courts have on this, though I don’t see why their having to rule on warrants poisons them from being able to rule on issues such as this. It is still a part of the judiciary branch and a part of oversight.
As for where is stands on the heirarchy of courts, a good question. I’m going to plead ignorance while I do more research on that question, but considering it involves a three judge panel, I sincerely would be surprised if it doesn’t hold more bearing that a circuit level federal court with one judge. Probably closer to a appeals court, but again, I will need to research.
August 18th, 2006 at 2:08:19 pm
Heh. John and David obviously studied law at the same institution. David, when I read your caricatures of what I said, it’s as if I was a 6′4″ black man named James, and you’re telling me that no, I’m actually a 5′2″ Asian girl named Sara. All I can do is blink and stammer . . .
August 18th, 2006 at 3:03:26 pm
How about instead of blinking and stammering you try and come up with a coherent argument then.
I’ll make it simple for you if you want.
LEGAL: A bag being searched by security (or anyone for that matter) in a private building (although i’m sure there are some additional limitations here.
NOT-LEGAL: Warrantless searching of a bag by police without a warrant in the subways.
What is similar between the two? Searching a bag.
What you are trying to claim (and which makes no sense) is that it is hypocritical for a group to oppose the above non-legal activity, but engage in the above legal activity because they have something (searching a bag) in common.
Now, if the ACLU engaged in a legal bag searching behavior, and at the same time opposed the police bag searching, not because its illegal but because they are opposed to the searching of bags, THAT is hypocritical.
Let me know if you need me to make it any simpler.
August 18th, 2006 at 3:52:32 pm
GACK ! Can an adult *really* *truly* be so cluelessly naive ?
If there is rational reason to search a bag at a transition from outside a building to inside that building, whether the building is a private one or a public one, then yes, it IS hypocritical to criticise someone else who believes they have a rational reason to search a bag at a transition from outside a subway to inside a subway (or vice versa) …
If nothing else, the ACLU is discriminating against a group when it searches the bags of those entering its building !
Why is it that the Left-leaning keep shying away from the word unreasonable ? Apart from the obvious lack of understanding of or familiarity with the concept, that is ?
August 18th, 2006 at 4:17:09 pm
David, you’re adorable. First of all, I wasn’t passing judgment on the legality or illegality of searching bags without a warrant in either public or private places, and like I said, I wasn’t saying that either the NYPD’s warrantless searching of bags on subways or the NYCLU’s searching of bags upon entry to its offices is legal or illegal, so you may have to dumb down your point a little more for us. Second, if I may be so bold as to point out some considerations left our of your customary declaratory legal analysis, warrantless searching of bags in a private building can still be done illegaly (e.g., if security only searched the bags of entering black persons as a matter of course), just as warrantless searching of bags in public places can be done legally (e.g., everytime you get on a plane). But again, I’m not sure what point you were trying to make here.
Let me try to explain MY point another way: Ask yourself why the NYPD wants to search random bags of people on subways, and then ask yourself why the NYCLU wants to search bags of people entering its building. Let me know what you come up with. Try not to hurt yourself.
August 18th, 2006 at 10:10:12 pm
Well you have managed yet again to completely missed the point Joe Mama, and you managed to drag Alasdair in with you.
Whether or not you think there is a good reason or not for the NYPD to search the bags, if it is illegal for them to do so, and the ACLU opposes them for doing something ILLEGAL then there is nothing hypocritical of them engaging in a similar behavior which is *GASP* legal. I don’t know how much simpler i can make it for you. But here goes.
Opposing behavior A when it is being done illegally while supporting behavior A when it is done legally is NOT hypocritical unless you oppose the behavior not because its illegal but because it is behavior A.
Again, I point to drinking. It is NOT hypocritical for a parent to prohibit their underage child from drinking while they themselves drink legally. It IS hypocritical for them to oppose their child drinking and for them to drink if they do so because they think the act of DRINKING is wrong.
If you can’t grasp that simple concept then I think you need to take some remedial logic courses.
August 19th, 2006 at 9:53:20 am
Heh. David, you’re just way too smart for me. I would think someone as brilliant as yourself could explain to dolts like me why the NYCLU would want to search bags of people entering its building and why the NYPD would want to search bags of people entering the subways, but you obviously don’t want to go there.
You’re only distinction between the two is that one is illegal and the other legal, and thus there is no hypocrisy. That might be a convenient (albeit circular) dodge, except that, as with most issues you comment on, YOU DON’T KNOW WHAT THE HELL YOU’RE TALKING ABOUT, David. It’s NOT ILLEGAL for the NYPD to conduct random bag searches on subways:
http://news.yahoo.com/s/nm/security_newyork_dc
I didn’t want to get into the subject of legality because it’s beside my original point, which is that the NYCLU appears (nay, is IMHO) hypocritical when they search bags of those entering their building, but then turn around and sue the NYPD for doing more or less the same thing in the subways. But since you’re argument hinges on the illegality of the NYPD searches, I must therefore correct you on this point, David.
To be a good sport, I’ll concede that there MAY be material differences in the way the those two kinds of searches are conducted (e.g., the NYCLU searches everyone who enters their building, while the NYPD has the resources to do only do random bag checks). But of course, the threat of terrorism is also quite different for subways than it is for the NYCLU office, which would necessitate different search methods.
August 19th, 2006 at 10:09:04 am
smooth one david. should the nyclu be teaching the nypd how to search bags?