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.
See my #39. Coffee is not kicking in properly this morning. :)
Very sorry. The link you gave is the same as the one I href-ed . . . check it out. . .
Wrong link. See my #39. Sorry about that.
I know. See my #39, which I personally checked to make sure that this time I got it right.
So basically, you're saying FISA is unconstitutional, right? Well, since FISA I could find only a few cases involving its constitutionality - most said FISA was ok, and one said as dicta that they took 'for granted' the position the Prsident can order warrantless eavesdropping for collecting foreign intel. The other cases upheld FISA's constitutionality. Hardly much of a base to build on for ignoring federal law, isn't it? I guess maybe we'll see if he really does, if this makes the USSC and is decided on the merits, instead of the standing issue, as I suspect it will be. So what we need here is the courts to decide if FISA is an unconstitutional intrusion into the powers of the President. That's how it's supposed to work, right?
The problem then is that if FISA is indeed constitutional, the President has ordered the commission of, and various people have carried out, multiple felonies under federal law, punishable by serious time in Club Fed. Certainly that is an issue that needs to be clarified, no? I mean, lying about oral sex is enough to get you impeached, God knows what you get for ordering dozens of illegal wiretaps, eh?
Moreover, the Patriot Act amended FISA in 1982...
1982 eh? Wow!
...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."
Great, as long as they follow FISA, they're covered in sharing information. Oops, they're not following FISA, though. The issue isn't the sharing of information, it's the warrantless eavesdropping on "US persons" in the first place.
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.
Yes, I know that's what the Executive Branch thinks - it's even possible they're right (cough, cough, Youngstown Sheet and Tube, cough). Recent comments from Congress from both sides of the aisle seem to disagree with his views on the matter. Further, Congress has specifically *banned* warrantless eavesdropping unless there is no 'substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party'. (FISA, aka 50 USC 1802a 1(B)) There are of course, exemptions, but they don't apply to the plaintiffs in the current case, who pretty clearly are "US Persons" under FISA.
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
I went and read the decision you link to above, and, oddly, the word 'warrantless' isn't anywhere to be found in it. Perhaps you meant to post a decision that actually discusses "the President's power to gather foreign intelligence without a warrant"? Could you provide a link to *that* case please? The one you posted doesn't cover that subject at all, it seems to be about minimization processes as mandated in the section of FISA covering eavesdropping WITH a warrant (50 USC 1804). And we're talking about warrantLESS eavesdropping here, right? So I'm not exaaAAAactly sure why you provided the link you did.
HTH. HAND.
--R.
Ignoring, of course, the thousands of FISA warrants obtained over the last couple of decades before surveillance could be authorized by the court.
--R.
Why walk like those ducks?
The same people who keep yelling about 'inherent Article II powers' about this case are the same ones who yelled it for Hamdan and other cases. While I respect people who honestly think that FISA is an unconstitutional encroachment on Article II powers, I think the matter needs to be dealt with. The current administration (as prior ones did, yes) has made all sorts of claims about Presidential powers, quite a few of which didn't survive a trip to the US Supreme Court.
A lot of people have a problem with the President deciding which laws to enforce and which to ignore. It's corrosive to the republican form of government laid down by the Framers. I'd have thought everyone here would agree on that. If FISA is bad law, it should be struck down. If it's good law, it should be followed, not simply ignored. If it needs changed, change it.
--R.
Sorry, I'm not following you here. The whole point of a FISA order (a/k/a a FISA warrant, although that label is a bit misleading because it isn't a warrant) is that it can satisfy the traditional criminal warrant in cases where a criminal investigation is based upon foreign intelligence surveillance. It simply doesn't apply to the NSA program unless and until the government wants to open a criminal investigation as well.
The NSA program is much closer to those cases holding that the government can set up warrantless, suspicionless roadblocks to check for illegal aliens or drunk drivers. The FISA case I linked to makes this point near the end of the opinion.
I don't understand why he takes her so seriously, the appellate courts won't. She's a Dem hack who got her job due to political and family connections. This opinion would draw an F for a law student - she doesn't even analyze the relevant cases. This piece of crap is DOA at the appellate courts.
1. No, I am not saying that FISA is unconstitutional. But as the FISA court noted, FISA does not limit or restrict the President's inherent constitutional power to gather foreign intelligence even without a warrant. Instead, it amplifies that power. More specifically, when the government wants to open a criminal investigation based on that intelligence, a FISA order can take the place of a traditional criminal warrant. Read the case for further details.
2. 1982 is a typo. I meant 2001. The Patriot Act was passed in October 2001.
3. The Fourth Amendment prohibits only unreasonable searches. The presence or absence of a warrant is one factor that goes to reasonableness, but there are others. Even in criminal cases, you don't always need a warrant. For example, the police can constitutionally set up checkpoints to search for illegal aliens or to stop drunk drivers. They don't need a warrant or even a suspicion that any particular driver committed a crime. Again, the FISA case covers this. Accordingly, you cannot conclude that the NSA program is unreasonable because the government didn't first get a criminal warrant or a FISA order. That's merely ACLU Kool-aide, not the law of the land.
4. I originally linked to the wrong case. I had linked to the original FISA ruling, not the FISA court opinion that later overruled it. I did mention that I was having a bad coffee morning, didn't I?
For what it's worth, just about everyone agrees with this. Even legal scholars who think that the NSA program is unconstitutional.
"They should either get Congress (who writes the laws) to get its ass in gear and DO SOMETHING, or they should comply with FISA, or they should stop breaking the damn law."
I may be wrong about this, but the judge said that besides violating FISA, it was unconstitional. Therefore, there is nothing Congress can do to make it legal. The court is saying it is unconstitional to do this type of surveillance without a warrant and nothing Congress could do would make it legal.
As I understand it, the section of the decision commenting on the 'inherent powers' is simply dicta, no?
50 USC 1809 says this:
§ 1809. Criminal sanctions(a) Prohibited activities
A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
Now, as provided above, Congress has made engaging in *any* electronic surveillance, under color of law, a felony, unless authorized by statute.
Where is the TSP authorized by statute? It engages in electronic surveillance under color of law, no? What statute exempts it from FISA, or is it authorized under FISA?
The question which needs to be decided (not merely mentioned in dicta) is whether the POTUS can simply ignore FISA requirements to obtain a court order authorizing surveillance where it is likely to involve 'US Persons'. Congress has said 'no' by passing FISA, and the President has said 'yes'. We all know what that means...
Has anyone verfied that the AG is even obeying FISA on the issue of 'warrantless' surveillance allowed where no 'US Person' is involved anyway? I haven't seen that, but I may have missed it.
--R.
Uh, right. The same guys who's "expert" opinion was that perjury and obstruction of justice are not "high crimes and misdemeanors" justifying impeachment - when committed by Bill Clinton.
Look at 50 USC 1802(a)(1). And also look at the definition of a "foreign power" under 50 USC 1801(a) and "agent of a foreign power" under 50 USC 1801(b).
And all this is leaving aside whether Congress even has constitutional authority to limit the President's Article II powers to gather foreign intelligence. A good argument exists that it lacks such authority.
Yeah, I know. And who had no problem with how the government handled Waco or Elian Gonzales, or the Clintons gathering FBI files of their political opponents, or (as you mentioned) lying under oath in a deposition and before a grand jury. Funny how this works.
There is no doubt in my mind that the NSA program is constitutional. It is reasonable to monitor international communications involving suspected terrorists even without a warrant. So, there is no Fourth Amendment problem. And in any event, it is part of the President's inherent power as commander in chief under Article II. Especially when we are already at war with the very people that we are monitoring abroad. The Constitution was never intended to be a suicide pact.
Well, I agree there is a danger that a higher court could strike down the NSA program, although not on the grounds cited by this hack. The language the press is quoting is just ridiculous. But it is precisely the kind of rhetoric we would hear next year in impeachment proceedings if the "judge's" buddies, Nancy the Whip, et al, are given a majority.
One more thing. This is part of the FISA statute. The FISA court noted that FISA does not limit the President's pre-existing constitutional powers to gather foreign intelligence. Nor can it. FISA simply amplifies that power in cases where the government uses foreign intelligence information in subsequent criminal investigations.
Anything is possible, but I have a very hard time seeing how. This would require the Supreme Court (no other court could do it) to overrule many of its own precedents by ruling that the Fourth Amendment ALWAYS requires a warrant, no matter what. That is not going to happen. For example, it would have to overrule decisions that allow the police to set up warrantless, suspicionless checkpoints on the highway for illegal aliens or drunk drivers. More generally, there are many well-recognized exceptions to the warrant requirement. Gathering foreign intelligence is simply one of them.
And again, according to the FISA court itself, FISA was intended to amplify the President's pre-existing constitutional powers to gather foreign intelligence -- not limit those powers. If the President had the the inherent constitutional power to use warrantless foreign intelligence surveillance before FISA, he had that power (and more) after FISA. And only the ACLU, leftists, libertarians, and other nutcases and Kool-aid drinkers dispute that this inherent Constitutional power exists under the President's Article II powers to conduct foreign policy and function as commander in chief.
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