Eavesdropping program ruled unconstitutional

The defendants “are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program 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 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.” Her ruling went on to say that “the president of the United States … has undisputedly violated the Fourth in failing to procure judicial orders.”

Before I get into the reactions of the fringe right blogs let me restate the issue. As the judge stated, not this president, not any president is above the law. Bush must follow well established legal precedent in regards to the surveillance of American citizens. The AUMF in no way gave him the authority to ignore FISA or the 4th amendment. He may not place under electronic surveillance any American citizen in America any time he chooses to without a warrant for longer then 72 hours (a FISA provision added after 9-11). Right-wing bloggers have chosen to ignore Bush’s violation of the law and opted to smear the judge instead,

The reactionary Patterico’s Pontifications – 08-17-2006 – writes,

Ideologue Leftist Judge Rules NSA Program Unconstitutional

Based on this history, I predicted in my earlier post that Judge Taylor would rule the NSA program unconstitutional. If Judge Taylor was willing to bend the rules to promote affirmative action, why not twist the law in order to rule unconstitutional a significant Bush anti-terror program?

If one rules in favor of affirmative action one can assume that one will rule against Bush? Here again we also have right-wing double-speak calling the warrantless surveillance of Americans rephrased as an “anti-terror program”. If Bush was sincerely concerned about keeping the program running as is he says he is he should have gone to the people’s Representatives in Congress and had the law changed. At least that is what those that respect the co-equal branches of government provided for by the constitution think he should have done; we should all obey the law first and then change it rather then break the law then try and rationalize it or get someone to retroactively change the law so that you’re not guilty.

Patterico’s quotes,

Eugene Volokh says that the opinion “seems not just ill-reasoned, but rhetorically ill-conceived.” He calls it a “seemingly angry, almost partisan-sounding opinion” which is “rich in generalities, platitudes . . . and “obviously”’s, and poor in detailed discussion of some of the government’s strongest arguments.” Orin Kerr describes the opinion using phrases like: “well, um, it’s kind of hard to know what to make of it” and “I confess that this has me scratching my head.”

Yes Kerr ( a lawyer) is scratching his head, but doesn’t offer up a real rebuttal to the judge’s decision,

It’s hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that’s the issue before the court, and my sense is that we really don’t know enough to answer it without knowing the facts.

The right-wing blog The Jawa Report writes, August 17, 2006 – Judge Orders Wiretapping Program Shut, Nation Cheers

Thank you Judge Taylor for shutting down the international wiretapping program. I feel so much safer knowing that my Constitutionally protected right to chat with Ayman al Zawahiri about the weather in Waziristan is safe in your hands. Thank you for saving me from the evil hands of George W. Bush. Thank you. Thank you. Thank you.

Actually Bush could continue to spy on Ayman al Zawahiri ( if he is still alive) because the issue is not the government’s prerogative to spy on foreign agents or foreign governments. So does Jawa not understand the issues or the law? I don’t thnk he does and that’s OK. Its alright not to understand the issues, to wait and do some reading and after some thought give forth an informed opinion, but Jawa like most of the far right would rather open mouth first and maybe think later. Instead he has chosen to lie because that is what paid up members of the cult of Bush do. Jawa and many other conservative bloggers may want to refresh their collective memories. Bush started spying on Americans before 9-11, Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say

The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court. The allegation is part of a court filing adding AT&T, the nation’s largest telephone company, as a defendant in a breach of privacy case filed earlier this month on behalf of Verizon Communications Inc. and BellSouth Corp. customers. The suit alleges that the three carriers, the NSA and President George W. Bush violated the Telecommunications Act of 1934 and the U.S. Constitution, and seeks money damages. “The Bush Administration asserted this became necessary after 9/11,” plaintiff’s lawyer Carl Mayer said in a telephone interview. “This undermines that assertion.”

Conservatives swear we’re all gonna die unless we let Bush do what he wants. He did what he wanted before 9-11 and we all know what happened. The administration and the head of the NSA have already been caught lying, via The Great Society

Dick Cheney in an article in the January 4, 2006 Washington Post: Vice President Cheney said yesterday that the Sept. 11, 2001, terrorist attacks might have been prevented if the Bush administration had had the power to secretly monitor conversations involving two of the hijackers without court orders. […] Cheney said if the administration had the power “before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon.” Current CIA director and former NSA chief, General Michael Hayden, as quoted by CNN, January 23, 2006: “Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such,” said Hayden, who now is principal deputy director of national intelligence.

A commenter at Jawa writes,

lets hope the first bomb that comes here is dropped on this judges head. what a stupidm move. i cannot believe she would do this. she needs to be put out of office immediately.

frank la may

The right just can’t stop giving into their racism and day dreams of death for their opponents. They can engage in all the fear mongering and blood lust they like it still does not change the fact that Bush is running America more like Cuba then then a democratic republic.

Blogs for Bush goes right for the tiresome and predictable McCarthyism, Federal Judge Rules In Favor of Terrorists – August 17, 2006

It should come as no surprise that Judge Anna Digg Taylor was appointed to the federal bench by Jimmy Carter back in 1979. Why is the American Left so determined for us to lose the war on terror? The Terrorist Surveillance Program has prevented terrorist attacks and saved lives… Why do Democrats oppose preventing terrorist attacks and saving American lives?

The leash is pretty tight over there at Blogs for Mr B. Bush’s clear violation of FISA is directly responsible for saving lives?..if that were my president I would offer up proof of violating FISA has saved lives. BFB couldn’t be bothered with such proof because there isn’t any (Surveillance Net Yields Few Suspects). They even capitalize and push the Big Brother doublethink with the meme of the “The Terrorist Surveillance Program”. If the program was about nothing but spying on known terrorists the only problem the left has with that is if they are known terrorists, stop spying on them and arrest them. Want to save lives? Get Bush to take his memos from the CIA seriously, Bin Laden Determined To Strike in US. A very simple fact, more American have died under G.W. Bush’s watch from terrorists then all presidents in the last fifty years combined. Another blog back-tracking there writes,

UrbanGrounds linked with The Power of Perfect Irony

I would make U.S. District Judge Anna Diggs Taylor the very next innocent person to be killed by an Islamofascit jihadist (is there any other kind?) who would have otherwise been caught via President Bush’s wireless surveillance program. …

It s not enough to disagree with the judge, do a little research and state your disagreement in the land of Wingnuttia. If you dare to not march in lock-step agreement with the wing-nuts you deserve to die. Again and again these pontificatots of conservatism give a lot of lip service to freedom and preserving freedom, but no one may exercise freedom, but them. (note: comments copied as found).

There is a crack in the court’s opinion and right-wing bloggers would be well advised to start reading some liberal blogs to get some real ammunition rather then relying on Swiftboating the judge and making incoherent assertions. From the Anonymous Liberal, Missing the Mark

But what makes this even more frustrating is that there is no need to reach this question, much less rely on it to support your other conclusions. The logical structure of the opinion is entirely ass backwards. Because FISA is currently the law of the land, there is simply no reason to reach the Fourth Amendment issue. The Fourth Amendment only comes into play if you first rule that the AUMF or article II authorizes the president to violate FISA. And this is where the DOJ has absolutely nothing to support its position. Judge Taylor (and her clerks!) had to have known that this opinion would be subjected to instant and intense scrutiny, both within the legal system and in the court of public opinion. In light of that, I just don’t understand why she chose to issues such a bare-bones opinion. Even if this decision is upheld by the Sixth Circuit, the appellate judges are likely to take issue with her reasoning.

TLA is more astute about these finer legalisms then I, but I have to agree that the judge should have centered her reasoning on FISA rather then the 4th amendment.

Just one more blogger who is so far to the right she makes Engelbert Dollfuss look progressive, Debbie Schlussel – NSA-Opposing Judge Engaged in Misconduct-August 17, 2006,

I figured Judge Anna Diggs Taylor, a 73-year-old Jimmy Carter appointee, would have the chutzpah to overturn the NSA wiretaps and rule in favor of the ACLU and its raft of Islamist, America-hating plaintiffs. And she did not disappoint my low expectations of her. She seems to hate America and fairness almost as much as the Plaintiffs do. She certainly hates a fair, impartial Judiciary. It’s not just that she’s a shameless liberal who always allows her politics to enter into her decisions. It’s that she’s so shameless she improperly interferes with cases that are not even hers.

Appointed by Jimmy Carter, former president and minister from Georgia, yep that judge must be evil. “chutzpah” ?, no the judge used legal reasoning and while that reasoning may be off a little, Schlussel would rather engage in character assassination then be bothered with rational arguments based on the law. “shameless liberal”? There’s no reason to be ashamed of being a liberal, liberals did invent democracy and wrote the constitution of the country where Schlussel is free to sling mud rather then act like anything resembling a mature adult and responsible citizen. Hating America seems to be an art perfected by modern conservatives who stand by while while Bush shreds the Constitution and gets over 2500 Americans killed for a lie, who uses sigining statements as a back alley device to avoid legal responsibility for his actions. Bush supporters are simply willing accomplices to treachery wrapped in our flag, they are the two faced scroundrels of our time.

More at Unclaimed Territory, Federal court finds warrantless eavesdropping unconstitutional, enjoins the program

.. 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.

For those that think people are dying in Iraq to spread freedom and democracy, well that was only true when Bush’s poll numbers were over fifty percent and the mid-term elections weren’t just around the corner. Now the Whitehouse looks like they’re looking for the easiest exits from the quiqmire that they created, White House Searching For ‘Alternatives’ To Democracy In Iraq

“Senior administration officials have acknowledged to me that they are considering alternatives other than democracy,” said one military affairs expert who received an Iraq briefing at the White House last month and agreed to speak only on condition of anonymity. “Everybody in the administration is being quite circumspect,” the expert said, “but you can sense their own concern that this is drifting away from democracy.” Bush has rationalized the Iraq war by arguing “a free Iraq at the heart of the Middle East” would transform the region and be remembered as a “watershed event in the global democratic revolution.”

It is for times like this that the gallows laugh was invented. By the way the post at Think Progress says that Rich Lowry of National Review states that his sources at the Whitehouse denies that the administration is seeking alternatives.