Posted on 08/17/2006 9:06:43 AM PDT by sinkspur
A federal district judge in Detroit has ruled that the Bush administration's NSA surveillance of phone conversations is unconstitutional.
"Plaintiffs would be able to conintue using the telephone and email in the execution of their professional responsibilities if the Defendents were not undisputedly and admittedly conducting warrantless wiretaps of conversations." (page 21)
I guess this only has to do with warrentless interference.
I'm saying that if the president wants to wiretap international calls without warrants he needs to do so with the authority of Congress and under congressional oversight. That's redundant of course, because if the president had any intention of maintaining oversight he would use FISA and get warrants right now.
Both of those came when the US was formally at war, and thus have no bearing on what is going on today.
Jimmy Carter got a two-fer. First that idiotic interview in a German newspaper, now this idiot he appointed rules warrantless wiretapping unconstitutional.
I'm not so good with all the legal terminology and I still haven't read the whole thing, but I guess my question is: Did she rule that interference was unconstitutional as long as there is no warrant?
"A big, big, BIG victory for the ACLU today!"
Justice Department on the Wiretapping Ruling [Kathryn Jean Lopez]
The Terrorist Surveillance Program is a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack. In the ongoing conflict with al-Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people. The Constitution gives the President the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties. Because the Terrorist Surveillance Program is an essential tool for the intelligence community in the War on Terror, the Department of Justice has appealed the District Court's order. The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal.
http://corner.nationalreview.com/
I'm not sure of the legal details but didn't congress authorize the actions in Iraq and Afghanistan? Wouldn't that make us, if by implication, at war?
Even so, for anyone who doesn't think we're at war, I recommend they go visit a large ditch in the ground in downtown Manhattan and THEN say we're not at war.
"Are you a lawyer? If so, what are your credentials and where did you receive your degree and where do you practice?"
I'm a citizen and a voter. And I paid attention in Civics when we covered such topics as 'Separation of Powers', 'The Bill of Rights' and 'stuff like that'. Unlike, evidently, 90% of the people posting on this thread.
--R.
You should not play one then. I think we are all citizens and voters, hopefully, and high school or college civics does not classify you as knowledeable enough to spout legal interpretations.
Having actually gone to law school, taken a class dealing specifically with the 4th Amendment, and passed the TX Bar exam, I might have a little credibility on the subject. I predict (based on my knowledge of the jurisprudence in this area) that this judge will be reversed thoroughly and quickly. If the ruling stands, then I will send you an apology.
Section. 2.Are executive orders "law"?
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
We had authorized use of force in Afghanistan and Iraq. If the president wants to monitor international calls involving Iraqis and Afghanis, I have no problem with that. Of course, we have no idea if that is the case or not. That's why it is imperative that there be oversight.
And yes, we are at war... with Al Qaeda.
(more .. and this is only page 14-16)
Like Judge Walker in Hepting, this court recognizes that simply because a factual statement has been made public it does not necessarily follow that it is true. Hepting, 2006 WL 2038464 at 12. Hence, in determining whether a factual statement is a secret, the court considers only public
admissions or denials by the [G]overnment. Id. at 13. It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the
government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.
Contrary to Defendants arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants public admissions regarding the TSP. Plaintiffs declarations establish that their communications would be monitored under the TSP.7 Further,
Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and concrete harm. Plaintiffs declarations state undisputedly that they are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients.8 In
addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of
having to travel and meet with clients and others relevant to their cases. Therefore, the court finds that Plaintiffs need no additional facts to establish a prima facie case for any of their claims questioning the legality of the TSP.
The court, however, is convinced that Plaintiffs cannot establish a prima facie case to support their data- mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect. Therefore, the court grants Defendants motion for summary judgment with respect to this claim.
Finally, Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP.9 Further, Defendants have contended that the resident has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this
information is not necessary to any viable defense to the TSP. Defendants have presented support for the argument that it . . is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies.10 Defendants cite to various sources to support this position. Consequently, the court finds Defendants argument that they cannot defend this case without the use of classified information to be disingenuous and without
merit.
In sum, the court holds that the state secrets privilege applies to Plaintiffs data-mining claim and that claim is dismissed. The privilege, however, does not apply to Plaintiffs remaining claims challenging the validity of the TSP, since Plaintiffs are not relying on or requesting any classified information to support these claims and Defendants do not need any classified information to mount
a defense against these claims.11
III. Standing
Defendants argue that Plaintiffs do not establish their standing. They contend that Plaintiffs claim here is merely a subjective fear of surveillance which falls short of the type of injury necessary to establish standing. They argue that Plaintiffs alleged injuries are too tenuous to be recognized, not distinct and palpable nor concrete and particularized.
Article III of the U.S. Constitution limits the federal courts jurisdiction to cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have a genuine case or controversy, the plaintiff must establish standing. [T]he core component of standing is an
essential and unchanging part of the case-or-controversy requirement of Article III. Lujan v. Defenders of Wildlife, 504 U.S. at 560. To establish standing under Article III, a plaintiff must
satisfy the following three requirements: (1) the plaintiff must have suffered an injury in fact - an
invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of, and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-561. The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561.
An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organizations purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Advertising Commn, 432 U.S. 333, 342 (1977)).
At the pleading stage, general factual allegations of injury resulting from the defendants conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. Id. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). In response to a motion for summary judgment, however, the plaintiff can no longer rest upon such mere allegations, but must set forth by affidavit or other evidence specific facts Fed.R.Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. Id. This court is persuaded that Plaintiffs in this case have set forth the necessary facts to have satisfied all three of the prerequisites listed above to
establish standing.
"You should not play one then. I think we are all citizens and voters, hopefully, and high school or college civics does not classify you as knowledeable enough to spout legal interpretations."
I'm sorry you don't feel informed on the law, I can suggest any number of books and articles you could try to remedy your education. But don't assume everyone else is ignorant, please. It's been a long time since High School and I didn't stop reading, learning and thinking the day I left school (unlike, clearly, a large number of people on this thread).
And if you're criticizing people for spouting off without knowing the law here, I'm pretty far down the list here, and you'll strain your fingers before you get to me.
--R.
And I'm asking you exactly what form this oversight should take. I'm all for oversight, but I'd like to know how you would plan to implement it.
And we're at war with Al Qaeda, and Hezbollah, and Hamas, and Islamic Jihad, and Gammat al-Islamiyah, and all the other Islamic terrorist groups in the world.
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