Posted on 08/23/2006 4:40:59 AM PDT by Molly Pitcher
Who is Anna Diggs Taylor and what does she have against national security?
The answer to the first question is: a U.S. district judge in Detroit. The answer to the second is as mysterious as the decision she handed down Thursday.
In her 44-page ruling, Judge Taylor ordered the National Security Agency to stop monitoring international calls to and from this country, aka "domestic spying" in New York Times style.
The judge found the practice not just illegal but unconstitutional. And also un-American in just about every crass, rhetorical way she could. The crux of her opinion reads like an entry in a high-school declamation contest rather than a reasoned piece of jurisprudence.
It's as if Her Honor had mounted her trusty steed and ridden off in all directions - legal, constitutional, philosophical and mainly oratorical.
There may indeed be a legitimate argument against some aspects of the National Security Agency's wiretaps. But this ruling doesn't make it. It's not so much an argument as a series of wild swings:
First off, Her Honor agreed that those challenging the National Security Agency had grounds to sue even if they could not demonstrate any actual material damage to themselves. The mere fear that they might be spied upon was reason enough to let them ask that the whole surveillance program be shut down.
The plaintiffs argued that the very existence of the program is such a threat to their delicate psyches that it should be banned. Because even the possibility that the feds might be listening in - none of the defendants claimed their phone lines were actually tapped - could inhibit their conversations with terrorist suspects abroad. How dare the government do such a thing!
It's an interesting point of view. But it's not mine, at least not since it was reported that these wiretaps may have played a role in the arrest and conviction of at least one would-be terrorist - Iyman Faris, a truck driver who was casing the Brooklyn Bridge with a view to cutting its suspension cables.
It's not the NSA's listening in on international calls that bothers some of us. It's the distinct possibility that soon it may not be able to. Maybe that's because we'd like to think the courts would let the government protect one of our basic American rights - the right not to be blown sky-high.
When the next plot proves successful, and the country is reeling after another 9/11, you can bet the same folks now celebrating this ruling against the administration will be blaming the president for not preventing the massacre.
Judge Taylor found the NSA's surveillance program unconstitutional not only because Her Honor believes it violates the Fourth Amendment, which forbids unreasonable searches, but the First Amendment, too.
Since the existence of such a program might inhibit what people say in the course of international phone conversations.
Again, it's an interesting point of view. Does this mean libel laws are unconstitutional, too, since they tend to inhibit what folks say in print?
(Gosh, who says this decision is all bad?)
What we have here is a triumph of ideology over law. If this ruling holds up on appeal, it'll be another milestone in the radicalization of the federal judiciary. Judge Taylor's pronunciamento may be the most sweeping example of partisan dogma's replacing legal reasoning since the last convention of the American Bar Association. That's when the ABA solemnly resolved to keep the president of the United States from issuing any statement when he signs a bill into law.
Now a judge is doing her best, or rather worst, to keep this administration from detecting terrorist plots. Somehow I was not surprised to read that Anna Diggs Taylor had been appointed to the federal bench by Jimmy Carter.
Happily, the latest plot to blow up American airliners seems to have been foiled by the authorities in London, but Britain's home secretary - John Reid - has deeply offended that country's left-wing press and legal establishment. They say he's exaggerating the threat from terrorism - or at least that's what they were saying before the latest bomb plot was uncovered.
"They just don't get it," Mr. Reid said of his critics, explaining that Britain "probably faced the most sustained period of severe threat since the end of the Second World War."
Maybe that explains what The Hon. Anna Diggs Taylor has against the National Security Agency: She just doesn't get it.
Michael Chertoff, the head of the Homeland Security Department in this country, does. To quote him the other day, this country needs a legal system that allows the government to "prevent things from happening rather than . . . reacting after the fact." For example, a system that allows the National Security Agency to monitor international calls to and from terrorist suspects in real time.
But unfortunately there will always be some judge somewhere who, contrary to Justice Robert Jackson of sainted memory, confuses the Constitution of the United States with a suicide pact.
This is all totally wrong. The president has inherent constitutional authority to gather foreign intelligence without a warrant. Every court until this one, including many appellate courts, has recognized this principle.
Moreover, the Patriot Act amended FISA in 1982 to allow the government to use this information in subsequent criminal investigations as long as intelligence-gathering was a "significant purpose" in gathering it. Under prior law, you needed a traditional warrant unless intelligence-gathering was a "primary purpose."
This prior law had led to Jamie Garolick's infamous wall between the law enforcement and intelligence agencies. This wall, in turn, was a major contributing factor to the government not detecting the 9/11 plot in time. This is why Congress, through the Patriot Act, changed this law.
The Constitution is not a suicide pact. The Constituion prohibits only unreasonable warrantless taps, not all of them. Not every warrantless search and seizure is unreasonable. And the NSA program is further authroized under the President's Article II powers as Commander in Chief.
For more information, read this. It is the FISA court's 1992 opinion. In it, it reaffirms the President's power to gather foreign intelligence without a warrant:
http://www.fas.org/irp/agency/doj/fisa/fisc051702.html.
You're nuts. Oh -- and wrong on every count too.
Exactly. And every court (until this one) that upheld the President's inherent constitutional powers to use even warrantless foreign surveillance when the purposes is to gather such information. The Fourth Amendment doesn't become relevant until the government then attempts to use this information in a subsequent criminal investigation.
Sure it does. The U.S. Constitution is what soldiers swear to uphold and defend during their enlistment oath. Or do you think that U.S. soldiers are subject only to the laws of the country they're currently in? (If so, I'm going back for my four wives.)
There is such a thing as Congressional oversight. Also, in caes where an individual can prove actual harmed from abuse of the program, he would have standing to sue. That's the problem here. These plaintiffs cannot point to any actual harm, but only fear or speculation that they might be harmed. Any harm is, at best, potential but not demonstrably actual. In legal terms, they lack standing (which the constitution requires before an Article III judge can rule on it). The court lacked constitutional power even to hear the case and should have thrown it out for that reason alone.
Oops. That should be October 2001.
This is exactly right. Whether there was a warrant is merely one of several factors going into whether the search was reasonable. Until this case, courts never required the government to get a warrant when the purpose was solely to gather foreign intelligence (which, incidentally, is part of the President's inherent constitutional powers under Article II).
Thank you. I'm pretty good with the HMTL tags here except for posting links. :)
So, if the ACLU was able to prove that they were unfairly targeted under this program, would they be able to sue the members of the House Select Committe on Intelligence, for example, for failing to provide oversight? For example, could they take Nancy Pelosi to court for her role, or negligence, in the case?
The short answer to your questions is no. Unfortunately. :) Congress can demand briefings about the program, withhold funding for the program if the information is not forthcoming, enact laws to curb even potential abuses, and several other things.
That one is the wrong opinion. I linked to the appellate opinion that reversed this opinion. If nothing else, try cutting and pasting what I linked.
That one is the wrong opinion. I linked to the appellate opinion that reversed this opinion. If nothing else, try cutting and pasting what I linked.
Wait, I made that mistake, not you. Here is the correct link:
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
This is to the appellate opinion that reversed the opinion that I had mistakenly linked the first time. Sorry about that. :)
See my #39. Coffee is not kicking in properly this morning. :)
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