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NSA Ruling: Cautious Celebration

By Jeralyn, Section War on Terror
Posted on Fri Aug 18, 2006 at 12:19:12 AM EST
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Lambert at CorrenteWire has a great post on the Michigan court's decision in the ACLU lawsuit challenging NSA warrantless surveillance. [Opinion text here pdf]

The good news: Judge Anna Diggs Taylor has courageously declared that Bush's warrantless program of domestic surveillance violates the First and Fourth Amendments, the separation of powers doctrine, and FISA, is not justified under the AUMF, and is not justified under the purported doctrine of "inherent authority."

Then, of course, there's not-so-good news:

But don't pop the champagne just yet; no triumphalism is warranted (especially since this decision has to run the gauntlet of a Federal judiciary system now headed by Scalito and Roberts (thanks for the great work on that cloture vote, Joe. Oh, wait....))

The bad news: The key component of Bush's twentyfirst century power grab--the NSA's datamining program that reads all your mail, all your searches, and this blog--is left in place by Judge Taylor's decision.

Christy at Firedoglake weighs in, as does Glenn Greenwald.

I haven't read the opinion yet since I've been on Ramsey-Karr duty, but the ACLU says:

"Today's ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," said Anthony D. Romero, Executive Director of the ACLU. "Government spying on innocent Americans without any kind of warrant and without Congressional approval runs counter to the very foundations of our democracy. We hope that Congress follows the lead of the court and demands that the president adhere to the rule of law."

Today's ruling by U.S. District Court Judge Anna Diggs Taylor agreed with the ACLU that the NSA program violates Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution, and runs counter to the Foreign Intelligence Surveillance Act (FISA) passed by Congress in 1978.

As the ACLU so aptly notes:

"Throwing out the Constitution will not make Americans any safer."

But that didn't stop Attorney General Alberto Gonzales from appealing the decision.

< Thursday Open Thread | Indecent Judge Gets Sentenced >

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    NSA Ruling: Cautious Celebration | 31 comments (31 topical)
    Re: NSA Ruling: Cautious Celebration (none / 0) (#1)
    by bad Jim on Fri Aug 18, 2006 at 12:54:43 AM EST
    From Greenwald's piece in Salon:
    And perhaps most significantly, the judge resoundingly rejected the administration's broad theories of executive power: "There are no hereditary kings in America," Taylor wrote, "and no powers not created by the Constitution."
    Re: NSA Ruling: Cautious Celebration (none / 0) (#2)
    by Talkleft Visitor on Fri Aug 18, 2006 at 04:28:35 AM EST
    Or from STAYING the decision pending appeal. Hold the applause, people. There's miles to go on this one!

    Re: NSA Ruling: Cautious Celebration (none / 0) (#3)
    by cynicalgirl on Fri Aug 18, 2006 at 05:02:51 AM EST
    Here's my question: Even if the SC says this program is legal, what would happen if this program actually *does* catch someone? Would the wiretapped conversations be admissable, or would that have to be determined by another court?

    Re: NSA Ruling: Cautious Celebration (none / 0) (#4)
    by Abdul Abulbul Amir on Fri Aug 18, 2006 at 05:20:15 AM EST
    "Would the wiretapped conversations be admissable, or would that have to be determined by another court?" The goal of this activity is prevention of terrorist acts. Admissability may not be an issue in US courts at all.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#5)
    by jen on Fri Aug 18, 2006 at 05:54:51 AM EST
    what, its a catch and release program?

    Re: NSA Ruling: Cautious Celebration (none / 0) (#6)
    by Joseph Hughes on Fri Aug 18, 2006 at 06:16:38 AM EST
    The even worse news: The predictable, racist response from the Freeper crowd.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#7)
    by Strick on Fri Aug 18, 2006 at 06:30:55 AM EST
    Wow, the consensus is that this ruling is going to be overturned and not just because of the composition of the appeals court over this judge. Reviews of the opinion have been scathing, even from lawyers who agree the NSA program is unconstitional and should be stopped. The Washington Post's editorial this morning is fairly typical. I can't help but wonder if this ruling might not have the opposite effect of what's intended, but being so apparently insubstantial that it will lead to higher courts overturning it and ruling that the NSA program is both legal and constitutional -- permanently.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#8)
    by Che's Lounge on Fri Aug 18, 2006 at 07:32:13 AM EST
    A shot across the bow. But the SS Bushco will sail on.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#9)
    by cynicalgirl on Fri Aug 18, 2006 at 07:46:29 AM EST
    "The goal of this activity is prevention of terrorist acts. Admissability may not be an issue in US courts at all. " So then, Abdul, do you think they would prevent a "terrorist act" and then let the planners get off scot free to try it again? That's pretty scary.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#10)
    by roy on Fri Aug 18, 2006 at 07:57:18 AM EST
    cynicalgirl, I expect the planners would be A) killed, B) Gitmoized without a civilian trial, or C) tried with more traditional evidence inspired by the results of the illegal wiretap.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#11)
    by oldtree on Fri Aug 18, 2006 at 08:01:40 AM EST
    If I told you 5 years ago that we would have martial law declared before the 2008 elections, would you have believed that? If I told you that the wh would nuke iran without provocation, would have believed that? nope, and you would not have believed any of the other things that have happened. when are you (and I) going to wake up?

    Re: NSA Ruling: Cautious Celebration (none / 0) (#12)
    by cynicalgirl on Fri Aug 18, 2006 at 08:10:09 AM EST
    Roy, So you think Bush has the authority to assissinate US citizens? Hasn't the USSC already said that we can't send them to Gitmo? And if "traditional evidence" is obtained via illegal wiretapping, doesn't that make the "traditional evidence" inadmissable? I'm trying to make sense of a proposed justice system that is completely outside the US Constitution. When did we become a dictatorship?

    Re: NSA Ruling: Cautious Celebration (none / 0) (#13)
    by jen on Fri Aug 18, 2006 at 08:26:41 AM EST
    9/12/01

    Re: NSA Ruling: Cautious Celebration (none / 0) (#14)
    by roy on Fri Aug 18, 2006 at 08:29:35 AM EST
    cynicalgirl, I meant killing and Gitmoization to be applied to the overseas, probably non-citizen, planners. Killing might only be feasible if they're in Afghanistan or Iraq, but if so, we'd just drop a bomb on 'em. As for "traditional evidence", I figured the Feds woulds use the wiretap info to direct an investigation, and comply with reasonableness and warrent requirements in that investigation. If a judge asks why they directed the investigation in that manner, they claim national security secrecy, and (if I understand Taylor's writeup of this rule) they don't have to answer. Voila, legal evidence, inspired by illegal evidence. Suitable for use against US citizens and others.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#15)
    by cynicalgirl on Fri Aug 18, 2006 at 08:36:40 AM EST
    Roy, I guess you didn't know, but the warrentless wiretapping is of US citizens. That's been clear from the start and has been admitted by Bush and Co.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#16)
    by scribe on Fri Aug 18, 2006 at 08:41:24 AM EST
    I'm also not especially impressed with the depth of scholarship in this opinion, though I don't really think is was necessary to be a great scholar to get a sustainable opinion in this case. The program was so blatantly unconstitutional that it was, as some commentators have noted (on NPR's ATC last night, of all places), a "slam dunk for the ACLU". Moreover, I think the judge recognized that, (a) regardless of what she decided, there would be a brutal appeal in which the opinion would be parsed, sieved, ground, diced, sliced and rehashed ad nauseam. Make the points, make them strongly, and get it done. This was a trial court judge making a decision-thinking and deciding quickly, sharply and finally - the way trial judges do. Further, the Multi-District Litigation Panel's consolidation order may or may not have applied - so she wanted to get her decision out there and get it done. I think the big point is, and what people may be missing, is that affirmance or reversal of the opinion, particularly if the stay of the injunction is granted, will almost certainly not come until after the November elections. Balkin and other commentators, like at/through SCOTUSblog, note that the Admin and ACLU are likely to bring in the first team for the appeals, and the role of amici will be greatly expanded. I'd expect something on the order of the number and variety of amici which we've seen in the Hamdi, Hamdan, and Rasul cases, i.e., lots and lots. The almost inevitable stringing-out this case to past the election brings to mind the essential nature of true-freedom-loving-'murcans (i.e. Democrats) winning the fall election. One of the first things taught in my junior high civics class, when the discussion turned to judges going out on a limb about civil rights cases or whatever, was the teacher's rejoinder: "remember, the Supreme Court reads the election returns, too." If you think Rover hasn't already recognized that, you're dreaming. Look at the deeply-political, politicized response the Admin had yesterday, before most people even knew this decision had been rendered. So, the proper response is to drag it out, turn George as King into a further campaign issue, win the election and, while that's going on, get the briefs written and amici engaged so the Sixth Circuit and Supreme Court see, when they get their hands on this, that the country supports Judge Diggs, not King George.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#17)
    by Gabriel Malor on Fri Aug 18, 2006 at 09:04:14 AM EST
    I agree with Scribe that Taylor needed to get this done and out of her court. That explains the dearth of legal reasoning. She knew that this thing wouldn't be decided in her court, so she decided to audition for an appellate court seat (betting that the Dems win in '08). We'll have to wait for the Sixth Circuit to see the actual legal arguments.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#18)
    by Talkleft Visitor on Fri Aug 18, 2006 at 09:22:18 AM EST
    The flap about this decision is simple: The Bush League couldn't give a damn about what ANY judge says - especially a lowly USDC judge (and an African-American female, at that - as is constantly being pointed out!). No, what rattles their cage is that there are still judges out there with the audacity to think that they can act independently of the imperial executive and call The Bush League on the carpet and think they won't have their careers destroyed along the way. As always, this is about power. "We've brought the Congress to heel; why the hell won't the judicial branch go along with us and rubber stamp everything, too!!??" So long as we all retain The Power Of No, and stand up for what's left of America, like this judge has, we have the power to stop the fascists from gaining total control. Hey, TL: here's an Open Thread Question for you: How far will The Bush League/Republican Party go in maintaining a stranglehold on power? Nixon had his Dirty Tricks Gang. What sort of Rovian dirty tricks does The Bush League have in store to suffocate what remains of American democracy? If you think you've seen abuses of executive power, you ain't seen nuthin' yet!

    Re: NSA Ruling: Cautious Celebration (none / 0) (#19)
    by Talkleft Visitor on Fri Aug 18, 2006 at 09:34:55 AM EST
    To reiterate some points by scribe, see the Opinio Juris post by Julian Ku (unrepentant conservative): http://www.opiniojuris.org/ In particular, in the comments section I have links to helpful legal analyses of the decision which, while agreeing with the conclusion, are less than pleased by the specific legal arguments used by the judge to get there.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#20)
    by Talkleft Visitor on Fri Aug 18, 2006 at 09:58:49 AM EST
    looking at it from the perspective of BushThugs (where everything is to be viewed in terms of politics) the ruling is disastrous for Bush's image as a leader, i.e., Bush = active criminal

    Re: NSA Ruling: Cautious Celebration (none / 0) (#21)
    by Gabriel Malor on Fri Aug 18, 2006 at 10:30:35 AM EST
    Oh, yeah, and while I'm thinking about it, what's with the "this took courage" stuff? Judge Taylor was just doing her job. Her job for which she has a life-time appointment and cannot be removed short of impeachment. Moreover, if (as most of those reading TalkLeft believe) her conclusion is "obviously" the truth, regardless of her fast arguments, what's so courageous about saying that? We have a silly habit of lauding people's every-day, common-place activities as "courageous." It smacks just a little of people trying to convince themselves that they actually are doing something dangerous. Kinda like a way of living on the edge without, k'know, the edge.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#22)
    by Strick on Fri Aug 18, 2006 at 10:37:56 AM EST
    Actually about half the highly critical analyses I've read of the ruling were from lawyers who oppose the NSA program. I said consensus and I mean it. The only people impressed with it are those who are celebrating so much they either haven't read it or who aren't qualified to do so. "I agree with Scribe that Taylor needed to get this done and out of her court. That explains the dearth of legal reasoning." The problem with this line of reasoning is two fold. First, appeals courts judge the ruling, not the case. This ruling appears to have so little substance that there isn't much to work with. Despite it's popularity in some circles, "Bush is a bad, bad man" doesn't meet certain legal standards. Equally important, some folks tend to believe that higher courts are a bit risk adverse. This ruling appears to offer more than one avenue for ruling against it without having to face addressing the much tougher issue of the NSA program itself. Remember the way the courts bounced the recent school pledge of alligence case by ruling that the child's father didn't have standing to file the case? Cheap way to avoid taking responsiblity while keeping the status quo. Look for that kind of thing to come up and lead to this whole effort to be wasted, leaving the NSA program in place while its opponents scramble to find another avenue of attack.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#23)
    by Talkleft Visitor on Fri Aug 18, 2006 at 11:54:48 AM EST
    Bush got what he wanted all of us inside a prison camp called the former USA. See it for what it is, the death of this great country, Bush will use you and anyone to help in the ideals of the new world order, most of you are fools to be used for race and non political ideals. the mexican's and the third worlds people are being used to do this evil act on you but most of you do not really understand that fact of evil political ideals.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#24)
    by Abdul Abulbul Amir on Fri Aug 18, 2006 at 01:02:10 PM EST
    "So then, Abdul, do you think they would prevent a "terrorist act" and then let the planners get off scot free to try it again? That's pretty scary." Not at all. For example, the Brits or some other power might snag the miscreants. Or no one may be caught at all, but an attack could be frustrated none the less.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#25)
    by Ernesto Del Mundo on Fri Aug 18, 2006 at 01:55:21 PM EST
    We have a silly habit of lauding people's every-day, common-place activities as "courageous." It smacks just a little of people trying to convince themselves that they actually are doing something dangerous. Kinda like a way of living on the edge without, k'know, the edge.
    Gabe...check out the link John Hughes posted above. Here's a typical comment:
    This traitor should be taken out back and SHOT. Period. Not a joke, not sarcasm. I'm tired of this terrorist-allied judicial legislators.
    Ruling against Bush is akin to being an abortion doctor to some of these "patriots". In other words they feel it would be a justified homocide. I also refer you to the example of Joe Darby for what courage means in the face of this crowd. As for the lack of "scholarship"...that critique appears all over the right wing blogosphere, as I expected it to once I found out the judge was a black female. Perhaps if the judge was a white male that would be "one less avenue of attack". The "scholarship" already exists, and is cited many times in the decision. Read the Constitution for starters. Also check out the final citation of the decision from Earl Warren:
    Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart...It would indeed be ironic if, in the name of national defense, we would sanction the subversion of...those liberties...which makes the defense of the Nation worthwhile.
    Re: NSA Ruling: Cautious Celebration (none / 0) (#26)
    by Ernesto Del Mundo on Fri Aug 18, 2006 at 01:59:40 PM EST
    Man, that bears repeating...one more time for emphasis... Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart...It would indeed be ironic if, in the name of national defense, we would sanction the subversion of...those liberties...which makes the defense of the Nation worthwhile. If only we still had a Supreme Court capable of defending us today. I guess 9/11 changed everything, though.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#28)
    by jondee on Fri Aug 18, 2006 at 02:21:49 PM EST
    Convincing people that it's a good idea to vote for a moron who's "like one 'a us", rather than a leader in keeping with the tradition of the best that this country's had in the past, changed everything.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#29)
    by baked potato on Fri Aug 18, 2006 at 03:34:00 PM EST
    Some of these comments casting aspersions on Judge Taylor's decision's supposed inadequate level of abstruseness are a hoot. I mean the 4th Amendment is so damn complicated! Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Obviously this language is so obscure, waffling and complex that it will take a great legal mind like Alberto Gonzales to even have a glimmer of what it means. We're so lucky that we have daddies like him and "Dead or Alive" Bush to tell us what to think about it.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#30)
    by cynicalgirl on Fri Aug 18, 2006 at 06:25:20 PM EST
    "For example, the Brits or some other power might snag the miscreants. Or no one may be caught at all, but an attack could be frustrated none the less." You are suggesting that we let terrorists off the hook because Gonzales is to lazy to get a search warrant.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#31)
    by Sumner on Sat Aug 19, 2006 at 11:59:44 AM EST
    Historians may one day have the technology to data mine these snippets and to organize them into a significant properly cogent whole. This era may eventually prove as significant as that of our Founding Fathers. The must "must-read" is Unclaimed Territory by Glenn Greenwald. Greenwald advocates a single-mindedness. What comes to mind is the order to the ranks to take that hill, nevermind that machine-gun nest or that it is a certain suicide mission. "He who would win, dare not praise a foe", comes to mind. Or warnings against equivocation. The NSA has conducted unfettered intelligence, all along. What changed, is the Patriot Act. The merging of Intel with Ops. You simply lack the capacity to envision the technology which looms ahead. C-SPAN has hosted reports done for the military which predict that technology will multiply by 1 billion times within the next 21 years. "Government" now controls the Mainstream Media. There is a brief window of opportunity before they manage to also capture the Internet, to propaganda only. Mere "pedantry", that is, the ostentatious display of knowledge, is not the culprit. You must understand your adversary's chess moves, too. These guys fight dirty. They cheat, and/or, make up their own rules as they go along. They play to win. If you don't understand their techniques of divide-and-conquer and misdirection, you have little chance of surviving at all, let alone winning. A good debater must be able to change over and argue his opponents' side instead. The battle is already lost unless you can see out in front of them, expecting their next moves. These guys are 2nd, 3rd, 4th, and 5th-order thinkers. The deck is also already heavily stacked against you. They hold the cards. They spy on you, not visa-versa. They have the money. They own the Machine. Well, anyway, they hope to have stolen it.

    Re: NSA Ruling: Cautious Celebration (none / 0) (#27)
    by Gabriel Malor on Sun Aug 27, 2006 at 10:47:56 PM EST
    Ernesto, courage in the face of anonymous internet bravos? Oh yeah. Just like I'm terrified that the Freepers are gonna come knock down my door. This is the real world. Where the fact that do-nothing internet big-mouths do not have the power of life and death over anyone. And while I think about it, they also have no power to injure Judge Taylor's career, either. Besides, if standing up to internet ranting is the measure of courage these days, then everyone here probably gets a gold star. "You're all winners!!!" Let me re-state: the use of the term "courageous" as applied so frequently to common, safe, and "obvious" actions has rendered the word next to meaningless. It's just another way to assure ourselves that we're super-duper-great. "Everyone, pat yourselves on the back!" Regarding the HUGE race-card you just dropped, Ernesto, it's not just the Republicans who question her scholarship. I find it ugly that you have no recourse but to scream "Racist" in the face of argument. Oh, and it doesn't really surprise me, either.

    NSA Ruling: Cautious Celebration | 31 comments (31 topical)