Ideology 1, Law 0: Another Strange Decision

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?

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.

First off, thank you for your reasoned reply. Very refreshing. However, as a reasonable individual, you must admit that this is a misdirection:

"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."

No, this is not. That is so because this is about warfare, and not the Constitution, or Bill of Rights for US citizens. If one of our country's enemies, or their support organizations/nations calls into the United States -- how can you reasonably say that our enemy's conversation is sacronsanct and protected by the Constitution or Bill of Rights?

If you care to, please respond with a good reason to make this our national policy -- protection for the coversation's of our enemies -- our standard of treatment for those who wish our destruction.

Thanks.

"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."

Listen, maybe you can see some "reason." This post I am making now is being broadcast to the internet over my phone line, wireless, and according to your logic, my conversation is private and cannot be intercepted by . . . say, Canada or Mexico, because of my US Constitutional protections. . .

What expectation of privacy do you have in receiving it? Is Canada forbidden to read this -- or any reply you may make; however "public" your method of communicating with the internet happens to be? The whole idea that yours or my conversation is "private" when broadcast, is ludicrous. It is the same as saying, Canada can read my mail all they want, but my own country can't. . .

Okay, okay, we have protection for cellular/broadcast calls if the intent is to have them private, here in the US and because it limits the danger of government using that against us in a criminal action; which Canada would be unlikely to do, unless caught there. However, that putative/supposed privacy is a fiction the emperor's fine clothing if there actually is criminal plotting or during a time of war when subversion, sedition, sabotage and terrorism are being planned.

I tried to give an example from outside the box in having the interception, analysis and reporting done from Iraq by military intelligence. I tried to show that when our enemy calls into the United States, they can be overheard, both sides, citizen or not, recorded, analyzed and reported back to the United States through NSA and other intelligence channels.

Neither you, this judge, or the puling partisans attempting to gain politically (war profiteers of politics) by defaming this action and completely and totally lying to the public about it can stop this during warfare.

Indeed, as this professor and others are coming to realize -- doing so is treasonous, subversive, seditition, anti-patriotic and self-destructive!

. . . and neither is it "criminal" for the government to ask for semi-public information from phone companies about the numbers they already have of our enemy calling into the United States . . . it was done to help protect means-and-methods, but some companies hate America and are actually owned/controlled by inimical interests . . . which the Leftist/Democrats assisted in their desire to marginalize or destroy America economically or totally . . .

The Leftist/Democrats can drop that hot potato, too. . . and Plame/CIA treason . . . and etc. . .

"A lot of people have a problem with the President deciding which laws to enforce and which to ignore. . ."

Ironically, the president doesn't have a choice. That's right, the action of listening to our enemies is automatic. If they try to call from outside the country, in whatever electronic way, they will be actively listened to, or that attempt made. Bush can't do a thing to stop that, and as I said, neither can anyone else; individual or group.

Unless you want to completely delete one of the major intelligence gathering processes our country has . . . I can't believe you'd want that!? Unless you aren't an American, or want the US destroyed, ultimately.

Is that your intent? Indeed, I can't imagine what kind of political idiocy it is to even begin attempting to use this to gain political advantage -- to destroy the NSA and their ability to collect information about our very, very deadly enemy.

In my opinion gross political negligence, but what do you expect from a leadership that nominates a traitor to be president, eh? Or the slavish partisans that vote for it.

Hi again,

You say, "Wrong. Domestic backbone switches are being tapped as well under TSP."

I don't know why you think stating the obvious contradicts what I said? This isn't about the TSP, per se, but rather about denying ALL investigations under FISA, if the call is to a US contact (without distinguishing whether the person called is a citizen or not.)

The FISA rules allow for "exceptions" in emergency situations, but the judge ignores that in denying its validity, or application during this time of military conflict (please, no misdirections about "declared," okay?)

At present, there are more than 35,000 FISA warrant requests in the system, ALL being ignored for whatever reason; e.g., negligence, , partisan slowdown, volume unmanageable, etc. And, although there may be some partisan aspects, the latter situation probably pertains and, as an aside, demonstrates the need for exemptions during wartime. These exemptions, if used in the past, would assist Democrat administrations much more than Republican because the majority of military conflicts are under Democrat administrations.

All of this, and the judge in consideration of these problems she is fully aware of, tends to show that her decision was partisanly directed, and not one which promotes any more security for US citizens from government eavesdropping. And here's the crux: the government is listening anyway -- that's right they have to in order to record all electronic emissions used in communication.

The actual, for real and everyday, fact is that the "privacy" for US broadcast communications is a legal "fiction," sort of like the emperor's fine clothes, and since everyone pretends that the government isn't "listening," but if they were, they don't shout out, "You're naked!" Unless, they get a warrant that is.

So, the backlog of requests and the refusal to allow/issue warrants in many of the cases where time is an important factor in acquiring MILITARY intelligence forces the administration to use executive power(s) during wartime, and the Patriot Act, to conduct the surveillance, anyway.

If this were a case where a Democrat administration were conducting FIS and a call from Milosevic came into the US, the need to monitor calls from the number/person/organization called might virtually force the surveillance without warrant, if time factor dictated that situation. Then, if no criminal action was contemplated to be used against that individual/group residing in the US, the administration could continue to monitor those calls within the US, and since there is "probable cause" for doing so; i.e., information which would assist our forces in Bosnia would outweigh the need to prosecute the Serbian contact(s.) All of this is a power available to the commander in chief during active warfare, and notwithstanding FISA, and since those exceptions are a part of FISA.

Indeed, rather than to subjecting US citizens to increased "danger" by warrantless surveillance, it is actually a protection -- against criminal proceedings being conducted using that information gathered. This situation, or potential, even bothers reactionary groups and individuals who would like to see them prosecuted, if enough proof is available, and despite the lack of warrant. They want to extend the presidential war powers to that degree. I'm one of them.

However, the compromise has and should be, in consideration of our treasured rights and freedom, that information obtained from warrantless searches be forbidden for use in criminal trial. However, if both parties, the caller and the receiver, are foreign agents (not US citizens) then the lack of warrants shouldn't have any effect on restricting criminal prosecution; just because on party resides in the US -- they would be POWs if captured; non-uniformed combatants.

The abstract ideal of the 4th Amendment has NEVER been seen by courts to restrict the executive during a time of military conflict, and this judge is DENYING all precedent in doing so . . . I suspect very strongly, for partisan reasons and not in the best interests of the US, her citizens and our soldiers fighting and dying at the hands of these neolithic, human sacrificing murderers! It is a subversion of the constitution and, along with the cozy relationship (hundreds of thousands) with the ACLU and appearance of bias for the plaintiff, smacks of treason.

Another indication of bias is also present because the head of the FISA court is the same judge who found/decided against the military commissions proposed at Guantanamo, and which gave thugs and terrorists the rights of US citizens, willy-nilly. Again, a complete reversal of precedent set at the war crimes trials after WWII.

On top of that, is the observation that the Leftwing/Democrats are in 100% agreement with this decision hamstringing our military intelligence during wartime -- you personally may not so agree 100%, but you can't deny that the overwhelming majority do, and that has the appearance of supporting this virtual treason by not protesting but rather accepting it, because it embarrasses the administration and any failure along those lines benefits the party. Not all the country, but rather one segment of it which is thoughtless in considering the potential damage that could occur, ala 9/11, and death for our soldiers in the theatre of operations, if these citizenship rights are given to our enemy.

I think the college professor writing to the DNC and suggesting that the party stop using the war and this issue as a propaganda tool to gain influence, because it lends the appearance of being antipatriotic or even subversive.

I agree with the professor!

P.S. It is ironic, but bitterly so, that the backlog of warrant requests is viewed differently from the perspective of the right and left. The Left seems to feel that the increase, which has clogged the courts ability to react to them, is an indication of increasing tyranny and will to suppress the citizen. While those on the right seem to feel that the cause is terrorism and the increased number of those residing in the US who are tied to Islamic fundamentalist terrorism; wishing to destroy or cripple the US.P.S. It is ironic, but bitterly so, that the backlog of warrant requests is viewed differently from the perspective of the right and left. The Left seems to feel that the increase, which has clogged the courts ability to react to them, is an indication of increasing tyranny and will to suppress the citizen. While those on the right seem to feel that the cause is terrorism and the increased number of those residing in the US who are tied to Islamic fundamentalist terrorism; wishing to destroy or cripple the US. In my opinion, the paranoia of the Left is a front and intended to aid the enemy rather than protect the 4th Amendment, and since surveillance for MILITARY intelligence, isn't any real danger for loyal Americans. Specially since any information gained COULD NOT be used to prosecute them, in the last place!

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