http://www.nytimes.com/aponline/us/AP-Dome...ng-Lawsuit.html

Judge: Wiretap Program Unconstitutional
By THE ASSOCIATED PRESS
Published: August 17, 2006
Filed at 12:07 p.m. ET

DETROIT (AP) -- A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which involves secretly taping conversations between people in the U.S. and people in other countries.

The government argued that the program is well within the president's authority, but said proving that would require revealing state secrets.

The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.

http://www.cnn.com/2006/POLITICS/08/17/dom...suit/index.html

NSA eavesdropping program ruled unconstitutional

Judge orders immediate halt to program

Thursday, August 17, 2006; Posted: 12:57 p.m. EDT (16:57 GMT)

(CNN) -- A federal judge on Thursday ruled that the U.S. government's warrantless wiretapping program is unconstitutional and ordered it ended immediately.

In a 44-page memorandum and order, U.S. District Judge Anna Diggs Taylor, -- who is based in Detroit, Michigan --struck down the National Security Agency's program, which she said violates the rights to free speech and privacy.

Taylor's ruling stems from a case filed by the American Civil Liberties Union. According to The Associated Press, Taylor is the first judge to rule the eavesdropping program unconstitutional. (Read the complete ruling -- PDF)

The defendants "are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (TSP) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III," she wrote.

She further declared that the program "violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III."

She went on to say that "The president of the United States ... has undisputedly violated the Fourth in failing to procure judicial orders."

The lawsuit, filed January 17 by civil rights organizations, lawyers, journalists and educators, "challenges the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval."

The judge rejected the government's argument that the program is within the president's authority, according to the AP.

Copyright 2006 CNN. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed. Associated Press contributed to this report.

Breaking: U.S. federal judge rules warrantless wiretapping unconstitutional --Federal judge orders end to wiretap program 17 Aug 2006 A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to the National Security Agency's program.

This from CLG...

Also on CNN

http://www.msnbc.msn.com/id/14393611/

Federal judge orders end to wiretap program
Rules warrantless domestic surveillance program unconstitutional

Ann Beeson, the American Civil Liberties Union's associate legal director and the lead attorney for the plaintiffs challenging the government's wiretapping policy, won a major victory after a federal judge ruled on Thursday the program is unconstitutional.

Updated: 12 minutes ago
DETROIT - A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which involves secretly listening to conversations between people in the U.S. and people in other countries.

The government argued that the program is well within the president’s authority, but said proving that would require revealing state secrets.

The ACLU said the state-secrets argument was irrelevant because the Bush administration had already publicly revealed enough information about the program for Taylor to rule on the case.

“By holding that even the president is not above the law, the court has done its duty,” said Ann Beeson, the ACLU’s associate legal director and the lead attorney for the plaintiffs.



The NSA had no immediate comment on the ruling.

Taylor dismissed a separate claim by the ACLU over data-mining of phone records by the NSA. She said not enough had been publicly revealed about that program to support the claim and further litigation could jeopardize state secrets.

Beeson predicted the government would appeal the ruling and request that the order to halt the program be postponed while the case makes its way through the system. She said the ACLU had not yet decided whether it would oppose such a postponement.

and how many people will learn about this, what with wall to wall saturation of Jon Benet Ramsey?

coincidences? I think not.

End To Wiretap Program
All Headline News - 1 hour ago
Detroit, MI (AHN) - A federal judge has ruled that the government's wiretapping program is in fact unconstitutional and has requested that it be stopped immediately. Anna Diggs Taylor, the US District Judge ...
Judge rules Bush's domestic spy program unconstitutional Capitol Hill Blue

Can you beleive this? The Republicans will take him down now and Dems won't have too

This is only a single, lower-court judge, so it is hardly the final word. It's interesting, but probably not even a front-page story, or if so, marginally. It's for sure not going to take away from the JonBenet frenzy.

She's a Carter appointee. Too many Republican appointees above her to kill it dead.

The administration is already hollering "FOUL" , Snow issued a statement saying the ruling is "UNwarranted". I find a bit of humor in using this word -you know- they don't want to be bothered by seeking warrants.

Earlier I heard the judge blasted for being a Democrat appointee, so get ready for continued PW(political warfare).

lenal

What is more foul is their illegal and unconstitutional abuse.

I hope this sticks....score 1 for the good guys

I wouldn't get too excited about this, the ACLU "shopped" judges and it's a long ways away from being finally declared unconstitutional.

Considering case law it doesn't stand much of a chance to prevail.

I imagine as we speak the Justice Department is taking steps to prevent this judge from halting the program.

score 1 for the good guys........who's the good guys?

On CNN web site they have a link to 44 page decision;
In a 44-page memorandum and order, U.S. District Judge Anna Diggs Taylor, -- who is based in Detroit, Michigan -- struck down the National Security Agency's program, which she said violates the rights to free speech and privacy. (Read the complete ruling -- PDF)

But even if Taylor harpoons the spying program, experts said, the decision likely would be overturned by the U.S. 6th Circuit Court of Appeals.
"Given the composition of the 6th Circuit and its previous rulings in related areas, it seems more likely to favor national security over civil liberties if that issue is squarely presented," said Carl Tobias, a law professor at the University of Richmond in Virginia. "And that's what this case is all about."

http://www.realclearpolitics.com/blog/2006...ggs_taylor.html

Statement of U.S. Senator Russ Feingold
On the District Court’s Rebuke of the Administration’s Warrantless Wiretapping

Program
August 17, 2006

“Today’s district court ruling is a strong rebuke of this administration’s illegal wiretapping program. The President must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA’s warrantless wiretapping program. Today’s federal court decision is an important step toward checking the President’s power grab.”

http://feingold.senate.gov/~feingold/state...08/20060817.htm

those who would uphold the Constitution and the law if that is not already evident.

check out Cafferty on CNN......go Jack!

An analysis from Glenn Greenwald:

I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward -- and sometimes eloquent -- in its almost always unequivocal rejection of the Bush administration's arguments:

First, the court rejected the administration's assertion of the "state secrets" doctrine with regard to the NSA eavesdropping program on the ground that the program has already been publicly confirmed by the administration, and that all of the known facts necessary to rule on the plaintiff's claims -- namely, that the administration is eavesdropping without warrants -- are already publicly known. The court adopted upon the reasoning of Judge Walker who, as noted above, rejected the administration's invocation of this doctrine on the same ground.

(The court here did, however, grant the administration's motion to dismiss the part of the case challenging the constitutionality of the data-mining program, on the ground that it has not yet been confirmed, and litigation of its legality would therefore require disclosure of state secrets).

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration's warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny.

Third, the court ruled -- rather emphatically and without much doubt -- that warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures (generally speaking, searches undertaken in the absence of a probable cause warrant). Citing the 1972 Supreme Court decision in the Keith case (more on that here) -- which held that warrantless eavesdropping is unconstitutional in the context of investigating domestic terrorist groups -- the court held (admittedly without much reasoning or even explicit arguments) that the same reasoning applies to make warrantless eavesdropping unconstitutional in the context of investigating international terrorist groups.

Fourth, the court ruled independently -- again, without all that much reasoning -- that the NSA program violates the plaintiffs' First Amendment rights, apparently because it chills (deters) their free expression. Since the plaintiffs know the Government can eavesdrop without warrants on conversations of those groups and individuals deemed "subversive," the program abridges free expression in a way that the First Amendment prohibits.

Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.

Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.

Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and [b] issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took. It will obviously be appealed. But as of right now, it is illegal, according to this federal court, for the Bush administration to continue to implement its "Terrorist Surveillance Program," and since it is grounded in constitutional conclusions, nothing -- such as Arlen Specter's dreaded bill -- could change that.

* * * *

I've heard reports that the reliably vile Rush Limbaugh is already attacking the judge personally -- she's a Carter appointee, etc. First, the judge who rejected the Bush administration's attempt to have the California/AT&T litigation dismissed (Judge Vaughn Walker) -- on whose reasoning Judge Diggs Taylor relied -- is a Bush 41 appointee. Secondly, the Judge's background is extremely impressive, making it quite hard, even for the likes of Rush Limbaugh, to demonize her or demean her abilities:


In 1979, Anna Diggs Taylor became the first black woman judge to be appointed to the United States District Court for the Eastern District of Michigan. Nineteen years later, she became the first black woman Chief Judge for that circuit as well.

Taylor had great difficulty obtaining her first job as an attorney for the Office of Solicitor for the U.S. Department of Labor, despite graduating form the prestigious Yale Law School in 1957. Very few opportunities existed for a black woman in law at this time. In 1961, Taylor relocated from the Washington D.C. area to Detroit, Michigan. Here she was involved in both public and private practice until her appointment to the U.S. District Court for the Eastern District of Michigan, on which she continues to serve. Taylor’s position has enabled her to open doors for other women and minorities to pursue and achieve their dreams. She strives for gender and racial equality in the law and currently serves on the Joint Steering Committee of the Gender and Racial Ethnic Fairness Task Forces for the Sixth Circuit.


One can only fathom the personal attacks that will be spewing forth against her.

* * * *

According to the ACLU, the Justice Department has notified them that they intend to ask the District Court Judge to stay her decision pending appeal to the Sixth Circuit (meaning the injunction would not apply immediately, but would only be activated if the decision were affirmed on appeal). Typically, with a decision of this magnitude -- particularly one that changes, rather than preserves the status quo -- a court would stay the decision. I was surprised that she did not stay it on her own (perhaps the Government did not ask).

Ordinarily, I would be inclined to think that it was almost automatic that the decision would be stayed, but given how dismissive she was of the administration's arguments -- and how unequivocal were her conclusions that this program violates the constitutional rights of Americans -- I wouldn't be all that shocked if she refused to (the administration could still then ask the Sixth Circuit Court of Appeals to stay the Order).

* * * * *

Let's see what our friends in the Bush follower crowd are saying. Legal scholar Jeff Goldstein immediately puts the spotlight on the Judge personally, and highlights "that she was married to Michigan Democratic Representative (1955-1980) Charles C Diggs, Jr. (divorced 1971) and S Martin Taylor (active in both the Coleman Young and Jimmy Carter campaigns)" and that "was the first African-American woman appointed to a federal judgeship in Michigan . . . . Taylor has used her positions to advance civil rights throughout the United States." He then announces that he "think(s) this ruling will be overturned on appeal." And, needless to say, included in the first 10 comments is a plea that the President defy the order, along with a call for the judge to be drowned.

Ace of Spades is so beside himself that he seems sadly deflated; he merely dutifully launches the two standard Bush smears at the Judge, but without much feeling -- he doubts she "takes terrorism seriously" and he "question(s) her sanity." Writing on Michelle Malkin's blog, Mary Katherine Ham also focuses on the Judge's background, quoting a Detroit Free Press profile which describes her as "a liberal with Democratic roots and defended civil-rights workers in the South in the 1960s." The article (and Ham) point out, however, that "people who know her say she will follow the law -- not her politics -- in deciding the case... " And this is what National Review Corner readers learned about this decision: It's a "Terrorist-Friendly ruling" from a "Carter appointee."

So, so far we have - (1) the Judge was appointed by Jimmy Carter; (2) the Judge is African-American and works on "civil rights" matters; (3) she is insane; (4) she does not take terrorism seriously; (5) this is a victory for the terrorist; (6) President Bush should defy the Order. That's a predictable enough beginning, but the smear machine is going to have to work a little harder, because that is not all that impressive of an attack so far. I recommend the Free Press profile -- read that and decide if her abilities and fairness can be legitimately demonized.

* * * *

More pro-Bush reaction is compiled

here, including this from Jawa report ("lets hope the first bomb that comes here is dropped on this judges head") and this from Debbie Schussel ("She seems to hate America and fairness almost as much as the Plaintiffs do"). And some nice race-based smearing can be found by Gateway Pundit here (her husband was a Congressman whose "district included downtown Detroit and some of the city's poorest neighborhoods. He was the first chairman of the Congressional black Caucus"). That's really relevant.

* * * *

Let's resoundingly clear up two widely disseminated misconceptions, the first of which is being quite deliberately tossed around:

(1) Even with this Order, the Bush administration is free to continue to do all the eavesdropping on terrorists they want to do. They just have to do so with approval of the FISA court -- just like all administrations have done since 1978, just as the law requires, and just as they did when eavesdropping as part of the surveillance they undertook on the U.K. terror plot.

(2) The court's ruling that warrantless eavesdropping violates the Fourth and First Amendments clearly means (although the decision is far from a model of clarity) that Congress cannot authorize warrantless eavesdropping with legislatoin, which would preclude enforcement of the Specter bill.

This is clearest when the court rejects the administration's argument that the AUMF implicitly authorized violations of FISA. The court ruled that: [a] the AUMF cannot be read to amend FISA, but that [b] even if it could be so read, it would not matter, because Congress cannot authorize an unconstitutional program:


The AUMF Resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the constitutional rights of their citizens.

Op. at 39 (emphasis added). If Congress is not empowered to authorize this program through the AUMF (because the program is unconstitutional), then there is no good argument as to why the Specter bill can.

http://glenngreenwald.blogspot.com/2006/08...arrantless.html

More here Nite Owl

http://www.commongroundcommonsense.org/for...showtopic=61308

Are you against our Constitution, Marine? Would you be more comfortable in a society like a boot camp, where disobeying a direct order is instant death?

So having a Constitutional Amendment in place prohibiting the waging of war as an instrument of foreign policy will probably contribute to Peace and Prosperity.

So, Marine, let's assume you're right (and you may be)... the case goes to the next level, where it gets defeated, or (better yet) to the SCOTUS, where it gets defeated.

Then what?

Strange how a woman has more b*alls than
Congress, the Justice Department,
and the White House...go get 'em lady.

Is it as simple as no one has the right to authorize
wiretapping on American citizens without the approval
of a court? Hell, yes.

National Security is founded in Constitutional Security.
Without the precepts of the Constitution - this ain't
the United States of America as I have grown to know it,
as I have loved it - even when I disagreed with operational
disasters by different administrations (Nixon-Bush).

I don't know what the Sixth District will do. I certainly
pray they review the legalities and not the politics
based on withheld secret evidence that supports secret programs.
I don't trust this administration, they have been wrong
time after time, after time. They are not bigger than our
system of government. Fear should not rule this nation!

Unless these guys secure the ports, the borders etc.
all this stuff is near useless anyway. You think someone
has to talk on the phone if they want to smuggle a nuke
into the US? You have proof the program has stopped terrorism?
Play the tape. But, don't ask me to trust you - Pleeeeeeze.

If the Sixth District rejects this ruling then the next step is
an appeal to the US Supreme Court. And, I tend to believe
that even with the "New Court", justices believe enough
in what they do that they will hear the case. It does rise
to the level of Anna Nicole Smith's case...don't ya think?

And, if they do hear it - all bets are off. I believe Thomas
would dance to the administration tune - always has -
but the rest...I'm not sure on this one. Maybe Scalia...maybe
not...Alito? Maybe...maybe not. But, I'm far from sure that
Roberts would land on the side of secrets vs. The Constitution
because (as I said in not opposing him) I believe he THINKS...
thinks about The Law...The Rule of Law...and his legacy.

I expect the Gonzalez USDOJ to dig in heels and drag their
feet, whining and sweating rather than let it quickly get to the level of the
Supremes. Many. many Conservatives are not on board on this one...mainly
administration yes-men. This one's got legs ladies...I don't care
about 50,000 other news stories today...this one's got legs.

Don't stumble now USA - Be all you can be.

WTF is this about, Jim? No one disobeying a direct order in boot camp is subjected to instant death! Hyperbole burns with no heat.

BLOG | Posted 08/17/2006 @ 3:12pm

It is Time to Censure a Lawless President


By John Nichols

When Russ Feingold first argued that the Bush administration's warrantless wiretapping program was in clear violation of federal law and the spirit of the Constitution, and that the Senate must censure the president for his wrongdoing, the maverick senator was condemned by the White House, ridiculed by Republicans and given the cold shoulder by most Democrats.

But, now, the Wisconsin Democrat who in March proposed that the Senate censure Bush for flagrantly disregarding the law has a federal judge on his side. And the question becomes: When will Democratic and Republican members of the Senate join Feingold in demanding that the administration be held to account for its assaults on basic liberties and the rule of law?

Ruling on a lawsuit filed by the American Civil Liberties Union on behalf of journalists, scholars and lawyers who expressed concern that the National Security Agency's spying initiative had made it difficult for them to develop and maintain legitimate international contacts and professional relationships, U.S. District Judge Anna Diggs Taylor in Detroit determined Thuesday that the warrantless wiretapping scheme is unconstitutional and ordered its immediate halt.

Holding that the spying program that was authorized and defended by President Bush violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution, Taylor wrote in a 43-page opinion that: "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."

The decision by Judge Taylor offers vindication for Feingold, the ranking Democrat on the Senate Judiciary Committee's subcommittee on the Constitution, who has argued since the NSA wiretapping was exposed last year that the president had dramatically overstepped his powers in authorizing the program.

"Today's district court ruling is a strong rebuke of this administration's illegal wiretapping program," Feingold said on Thursday. "The President must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA's warrantless wiretapping program. Today's federal court decision is an important step toward checking the President's power grab."

The key words in that statement are "an important step." The ruling by Judge Taylor, while significant, does not mark the end of this fight.

This administration will continue to battle judicial efforts to require the president to follow the law.

Ultimately, the job of demanding accountability will fall to the Senate.

At this point, Feingold has only a handful of Senate allies. Iowa Democrat Tom Harkin and California Democrat Barbara Boxer have been with the Wisconsinite since he proposed censure in March. In May, Massachusetts Democrat John Kerry signed on. But most Democrats, including New York Senator Hillary Clinton and Senate Minority Leader Harry Reid, have refused to embrace the proposal.

With the courts stepping in, the time for Democrats and responsible Republicans to step up is now. A failure by senators to respect their duty to check and balance a lawless president makes those disengaged legislators as much a part of the problem as an abusive executive.

http://www.thenation.com/blogs/thebeat?bid=1&pid=113113

You are right...it was more like slow painful death.

Naw, they'd just make you peel a mountain of potatos,
clean a warehouse of latrines, walk across country with 60 pounds,
and then ask if you wanna go home to mom.

Thought I'd laugh a little...this is such a serious issue...
I want to be ready to follow it for as long as it takes.
Cause when they try to tire us out on it, I want us to
be lifted on Wings of Eagles - American Bald Eagles.

BLOG | Posted 08/17/2006 @ 3:53pm

In the NSA Case, a Judge Says No to King George

by David Corn

In ruling on Thursday that the Bush administration's warrantless surveillance program is unconstitutional and must be halted, U.S. district Judge Anna Diggs Taylor slammed the White House on several critical fronts.

For months, George W. Bush, Dick Cheney and other administration aides have been defending--even championing--what they call the "terrorist surveillance program," under which the National Security Agency can intercept communications that involve an American citizen or resident without a warrant if one party to the communication is overseas and suspected of being linked to anti-American terrorists). They have maintained that the president has the authority as commander in chief to authorize such surveillance. Though the Foreign Intelligence Surveillance Act (FISA) generally forbids wiretapping without warrants, the White House has contended that Bush is not bound by the limitations of that law. This claim--arising from the Bush administration's view of expansive (even supreme) presidential power--set up a constitutional clash. And in the first round of the legal battle, Judge Taylor has knocked out the White House argument.

In her decision, she accused the administration of dishonestly arguing that the lawsuit filed by the ACLU and others (including journalists, researchers and lawyers) against the NSA wiretapping should be dismissed because it would expose state secrets:

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP [Terrorist Surveillance Program] 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.

She added:

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. Further, Defendants have contended that the President has the authority under the AUMF [legislation authorizing Bush to use military force against Iraq] and the Constitution to authorize the continued use of the TSP. Defendants [the Bush administration] 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....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 other words, Bush cannot hide behind an it's-classified defense. (Taylor did say that the administration could do so in a related matter--the data-mining of phone records by the NSA. That's because not enough information has been publicly released about this covert program.)

The judge reserved her sharpest words for slicing and dicing the administration's contention that Bush had the authority to ignore FISA and, in essence, act outside (or above) that law. And she cited a favorite Supreme Court case of conservatives to make this point: Clinton v. Jones. In that case, the justices ruled that Clinton could be sued for sexual harassment by Paula Jones. Taylor wrote:

It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d]...into a single branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997). "It remains one of the most vital functions of this Court to police with care the separation of the governing powers....When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).

Though pundits, partisans and legislators have debated the legality of the warrantless wiretapping program, Taylor rendered a clear verdict:

The wiretapping program here in litigation...has undisputedly been implemented without regard to FISA and...in violation of the Fourth Amendment.

Bush, as president, she added, has no extraconstitutional powers:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well....In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.

She noted:


The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

Once again, a court has told Bush that he is not all-powerful. He cannot create military tribunals on his own. He cannot detain American citizens as enemy combatants without affording them some elements of due process. Taylor's decision will probably be appealed by the Bush administration, and the case will wind its way toward the Supreme Court. But this decision reaffirms--and puts into practice--the bedrock principle that a president's power does not trump the workings of a republican government, even when it comes to war. Weeks before he took office in 2001, Bush quipped, "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator." Democracy, though, is not easy. And a commander in chief has to abide by the rules, as various courts have now ruled. The administration's King George approach to governance has taken another blow. But it's royally unlikely this president is going to accept the decision and give up his claim to the throne.

http://www.thenation.com/blogs/capitalgames?pid=113132

"The liberties of a people never were,
nor ever will be, secure,
when the transactions of their rulers
may be concealed from them."

- Patrick Henry

Legal background, applicable constitutional argument and a Congressional analysis of the illegality of bush wiretaps.......if this goes higher... and it will, bush's protestations should not hold water if followed by legal precedent and prior supreme court rulings.....


http://www.npr.org/news/specials/nsawiretap/legality.html

Johnathan Turley was on Countdown tonight, and he had a different take: Bush has broken the law over 30 times on the NSA wiretaps alone.

So, let's get this straight: Andrew Johnson gets impeached for firing his sonuvabitch Secretary of War- the guy he inherited from Lincoln, and didn't have to keep anyhow. Nixon quits because he's about to be impeached for, among other things, illegal wiretaps. Clinton gets impeached because he gets a little head from a fat lovesick intern. Bush gets a pass on 30 counts of disregarding the 4th Amendment? WTF is wrong with this picture?

Oh, and we haven't even discussed the DSM's, torture, renditions, election fraud, profiteering, habeus corpus, and in general just being a smirking incompetent chimp a$$hole.

ADD ON EDIT: Hell, I'd throw him in prison and throw away the key for the last item alone!

Since this Justice Dept. case is based on fear...
I figured I'd offer some of the sages' thoughts on "fear".

"The only thing we have to fear is fear it'self -
nameless, unreasoning, unjustified, terror
which paralyzes needed efforts to convert retreat into advance."
---- FDR - First Inaugural Address, March 4, 1933

"What are fears but voices airy?
Whispering harm where harm is not.
And deluding the unwary
Till the fatal bolt is shot!"
---- Wordsworth

Courage is not the lack of fear but the ability to face it."
---- Lt. John B. Putnam Jr. (1921-1944)

And, my personal favorite...

“Cowards die many times before their deaths;
the valiant never taste of death but once.”
--- William Shakespeare

Buck-up America!

You can not impeach a king... the congress will ignore us... with an incumbency of 98%... you can not arrest a king... he will just pardon himself... we can not do anything... he wasn't even elected... he was selected by our noble judiciary... so bow down to the lord of the flies... for George is - king and is not to be held accountable for the directives of his corporate overlords... Sorry, folks... the deed is already done... we, the people, in fact have an idiot for a king.

(kudos to IH for the post above!)

No Vmaus, Cheney is quite bright. His dauphine is an idiot, though.

Hell I'd join you in helping throw away the key!!! but you know how slow our Dem colleagues move in Congress.....I guess John was hoping to get their toes in the water before we all drown!!!!

Well, this will be a long battle......and it will be appealed until it gets to the bush Supreme court, but politically, right now it's not good to be the king.


The best arguments to be made will be with the recent ruling on the Hamdan case by the SC, followed by the dismissal of the AUMF as not being justification for bush, Fisa Law and the 1st/4th amendments (the potential holes lie here)

I stand corrected... Cheney is quite bright... compared to a black hole.

just a note to the above-
Clinton got impeached for lying,much like Al Capone, who got caught for taxes.
Their crimes were actually much greater than sex and taxes.
Sometimes you get caught for the little things.

It was how Rudy claimed to clean up NY while mayor. He arrested people for jumping a turnstyle and found out they were murderers.

Little things catch up to big crooks.

Don't be so sure the supreme court will back bush.

It may end up being 6 to 3 with only Scalia thomas and Alito the 3.

The Supreme Court knows Bush is gunning for their power too, so they are not so apt to rubber stamp him like they did in 2000.

then Chairmen Conyers will see to it an investigation is started in Feb.

G4A... I so admire your optimism...

January 8th, 2007, the day after the new congress is sworn in. He won't wait until February. I hope he guns for Cheney first- he needs to go down before Shrub. Maybe, with a little luck, the MoFo will die of a heart attack before then.

Yeah, tell me about it- hope springs eternal...

a hand for the women of JUSTICE today....let's not forget the ACLU attorney, Ann Beeson for the plaintiff's suit, and that this was the first time the illegal NSA wiretapping by the bush administration had been challenged.....and the correct ruling by Judge Taylor......a pic of Judge Taylor on prior page.....here is Ann Beeson




Thank you Annie!

Looks like a terrorist-loving communist pinko liberal democrat lesbian to me...

jes' kiddin'

Sorry, I didn't get the joke

If anyone would like to send the Judge a word of thanks here is an email link

http://www.mied.uscourts.gov/_contactus/contactus2.htm


U.S. District Judge Anna Diggs Taylor

For those who'd rather call:

call: 313-234-5105 and let her know you stand behind her!

Thursday, August 17, 2006

Breaking the law has consequences

by Glenn Greenwald


My overall analysis of today's extraordinary federal court decision on the NSA warrantless eavesdropping program is in the post below, here. I also have an article up at Salon summarizing the importance of this ruling, here. But I wanted to emphasize in a separate post what I think is one of the most important consequences of today's events.

In Hamdan v. Rumsfeld (.pdf), the Supreme Court -- as Marty Lederman was the first to note -- rejected the Bush administration's principal defense for its violations of the Geneva Conventions not only with regard to military commissions, but generally. By holding that Common Article 3 of the Conventions applies to all detainees, and a failure to treat detainees in compliance with Common Article 3 constitutes "war crimes," the Supreme Court effectively found that Bush officials have authorized and engaged in felony violations of the War Crimes Act (18 U.S.C. sec. 2241), which makes it a federal crime to violate war treaties such as the Geneva Conventions. That is why the administration is busy at work trying to change that law so as to retroactively legalize their conduct -- because the Supreme Court all but branded them war criminals, and the consequences of that can be severe.

And now, a federal court in Michigan -- the first to rule on the legality of the President's NSA program -- just rejected all of the administration's defenses for eavesdropping in violation of FISA, effectively finding that the administration has been engaged in deliberate criminal acts by eavesdropping without judicial approval. And as I documented previously, Hamdan itself independently compels rejection of the administration's only defenses to its violations of FISA. Eavesdropping in violation of FISA is a federal crime, punishable by up to 5 years in prison and a $10,000 fine (50 U.S.C. 1809).

Thus, judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be -- and are required to be -- held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law -- criminal laws -- in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.

http://glenngreenwald.blogspot.com/