More On The Diggs-Taylor Decision Against The NSA

Judge Finds Wiretap Actions Violate the Law

While I have already posted my say on the decision that condemned the warrantless surveillance programs implemented by the Bush gang, I thought this article provided some insights I do not necessarily share, but are significantly different from my take on things that it was worth sharing.

A federal judge ruled yesterday that the National Security Agency’s program to wiretap the international communications of some Americans without a court warrant violated the Constitution, and she ordered it shut down.

The ruling was the first judicial assessment of the Bush administration’s arguments in defense of the surveillance program, which has provoked fierce legal and political debate since it was disclosed last December. But the issue is far from settled, with the Justice Department filing an immediate appeal and succeeding in allowing the wiretapping to continue for the time being.

Of course, if the ruling were against an ordinary citizen, the order to cease and desist would have been implemented right away. It strikes me as strange how "teflon-coated" this administration seems to be.

In a sweeping decision that drew on history, the constitutional separation of powers and the Bill of Rights, Judge Anna Diggs Taylor of United States District Court in Detroit rejected almost every administration argument.

Judge Taylor ruled that the program violated both the Fourth Amendment and a 1978 law that requires warrants from a secret court for intelligence wiretaps involving people in the United States. She rejected the administration’s repeated assertions that a 2001 Congressional authorization and the president’s constitutional authority allowed the program.

It also addressed First Amendment issues, the historical precedents that clearly lead to the conclusions drawn by Judge Taylor, and reached way back to case law that existed while the British were in control of the American Colonies.

“It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote. “The three separate branches of government were developed as a check and balance for one another.”

This is a quote that will be antied about for the next 10-20 years.

Republicans said the decision was the work of a liberal judge advancing a partisan agenda. Judge Taylor, 73, worked in the civil rights movement, supported Jimmy Carter’s presidential campaign and was appointed to the bench by him in 1979. She was the first black woman to serve on the Detroit federal trial court.

But her overall judicial history has been one of moderation and even-handedness.

She has ruled for the A.C.L.U. in a lawsuit challenging religious displays on municipal property. But she has also struck down a Detroit ordinance favoring minority contractors. “Her reputation is for being a real by-the-books judge,” said Evan H. Caminker, the dean of the University of Michigan Law School.

Which is why it strikes me that anyone who has read the decision can arrive at the conclusion that Judge Taylor had a political agenda going into the case. My read of the case is that she awarded parts of her ruling to the Plaintiffs and another part to the Defendants.... all based upon a comprehesive read of the Constitution, the legislative history, stare decisis and case law, and the intent of the framers.

The government said it would ask Judge Taylor to stay her order at a hearing on Sept. 7. The Justice Department and the American Civil Liberties Union — which brought the case in Detroit on behalf of a group of lawyers, scholars, journalists and others — agreed that her order would not be enforced until then, but lawyers for the A.C.L.U. said they would oppose any further stay.

I am hoping that there isn't a prolonged appellate process and that any stays granted against the decision will be limited and short-lived.

Administration officials made it clear that they would fight to have the ruling overturned because, they said, it would weaken the country’s defenses if allowed to stand.

Attorney General Alberto R. Gonzales, at a hastily called news conference after the decision, said he was both surprised and disappointed by the ruling on the operation, which focuses on communications of people suspected of ties to Al Qaeda.

Administration officials “believe very strongly that the program is lawful,” said Mr. Gonzales, a main architect of the program as White House counsel and the biggest defender of its legality in a series of public pronouncements that began after the program was disclosed by The New York Times last December.

I have to question the legitimacy of AG Gonzalez's credentials. As a former Justice of the Supreme Court of Texas, he should have a better grasp of the Constitutional principles. But Texas law doesn't seem to mind ignoring the Constitution if it promotes a certain political ideology.

“We’re going to do everything we can do in the courts to allow this program to continue,” he said, because it “has been effective in protecting America.”

Bovine excrement in extremis! Data mining and national security experts have significantly identified the program as being inherently flawed, ineffective and useless.

Tony Snow, the White House spokesman, also described the surveillance program as a vital and lawful tool. “The whole point is to detect and prevent terrorist attacks before they can be carried out,” Mr. Snow said. “The terrorist surveillance program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties.”

We couldn't take Tony Snow seriously when he was a Fox employee, what makes him think he has room to speak on these issues now that he works for Bush? Even Bill O'Reilly has a more balanced approach to the news than Tony Snow... and that says it all.

Democrats applauded the ruling as an important affirmation of the rule of law, while lawyers for the A.C.L.U. said Judge Taylor’s decision was a sequel to the Supreme Court’s decision in June in Hamdan v. Rumsfeld that struck down the administration’s plans to try detainees held in Guantánamo Bay, Cuba, for war crimes.

Anyone reading the two cases will see parallels in the rulings. Anyone reading the Constitution in its entirety--as it should be considered--will find both decisions to be in keeping with the intent of our "supreme law of the land."

“It’s another nail in the coffin of executive unilateralism,” said Jameel Jaffer, an A.C.L.U. lawyer.

But allies of the administration called the decision legally questionable and politically motivated.

Sour grapes and another pile of bovine excrement.

“It is an appallingly bad opinion, bad from both a philosophical and technical perspective, manifesting strong bias,” said David B. Rivkin, an official in the administrations of President Ronald Reagan and the first President Bush. “It is guaranteed to be overturned.”

Rivkin was an idiot when he worked for Reagan, and listening to his views this week on C-SPAN proves he remains such.

Mr. Gonzales would not say whether the program played any role in foiling a plot last week to set off bombs in airliners bound for the United States from Britain. But Speaker J. Dennis Hastert, Republican of Illinois, suggested that it did play a role in the investigation.

Hint, hint... nudge, nudge... wink, wink don't you know. Of course no one has come out directly and said this is the case. And the reports from across the pond indicate that the wiretapping and electronnic surveillance used was implemented after probable cause was established in accordance with UK law. However, as we have been reminded by the ultra-conservatives over and over again, we should not allow foreign laws to make our decisions here in the US. After all, we have more protections of privacy, free speech and affiliation than do most UK citizens... which is why we rejected British rule back in the 1700s.

In a written statement criticizing Judge Taylor’s ruling, Mr. Hastert defended the wiretapping operation and said that “our terrorist surveillance programs are critical to fighting the war on terror and saved the day by foiling the London terror plot.”

I can only hope that Hastert's Illinois constituents will recall these comments and ideologically entrenched ideas when it comes time to vote for or against him.

His office declined to elaborate.

Of course not! It seems that entrenched politicians never care to elaborate.

Mr. Gonzales said he expected that the ruling would play a role in the debate in Congress over how and whether to change federal eavesdropping laws. But he said the exact impact was “hard to predict.”

Let us hope that this case--and several others that have come down the pike--will cause our congress critters to rethink the ethics, legality and constitutionality of the program.

Among competing proposals, Republican leaders have proposed legislation that would specifically permit the wiretapping program. Some Democrats, however, have introduced legislation that would restrict, or in some cases ban altogether, the government from conducting wiretaps on Americans without a warrant.

Arrghh! When will they learn.