Federal Judge

[Peaches]

States that the warrentless wiretapping is ILLEGAL, and that it needs to STOP NOW.

Awesome news!

[LaughingOtter]

As a card-carrying member of the ACLU, I have to agree. :-)

Due process 4TW!

[Tantalyr]

I haven't been able to find the judge's opinion online yet (no great surprise since it was just announced), but from the following CNN snippet of the case I've little doubt that the Seventh Circuit Court of Appeals will stay the judgment (meaning that it will vacate the injunction) pending the government's appeal as the case involves some very tough constitutional issues . . . .

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.

Right off the bat, note that the ACLU did not argue that the NSA's wiretapping activities violated the Fourth Amendment's proscription against unreasonable searches and seizures--the very proscription which opponents have consistently raised as the barrier to the program. And it's the amendment which is invoked in 99% of all cases questioning wiretapping and other forms of government information gathering.

Next note the ACLU's argument that the program "has made it more difficult for [journalists] to do their jobs" since presumably at least some of the monitored calls involved journalists' informants. Although some states have such an evidentiary rule, there is no federal journalist-source privilege. That's why Judy Miller spent 85 days in jail for refusing to reveal her sources in the Valerie Plame investigation. And why the San Francisco Chronicle journalists who outed Barry Bonds' steroid use based on secret federal grand jury testimony are about to spend some time behind bars unless they reveal who gave them the grand jury testimony transcripts.

Next, the judge apparently ruled that the program violates the First Amendment's free speech guarantees. The short response to that is the query whether foreign citizens are entitled to the First Amendment's guarantees while making statements outside the United States. Darned good question that.

Finally, the judge also apparently ruled that the program violated privacy rights. And that is one huge can of worms, as federal courts have never (and indeed cannot) precisely state what "privacy rights" are actually guaranteed by the Constitution beyond the ones specifically enumerated. For example, a woman's right to an abortion, as well as an individual's right to "die with dignity," have been recognized as privacy rights implicitly guaranteed by the Constitution, though not explicited stated. So to this day there are Constitutional scholars that debate whether either of those "privacy rights" actually exist. Here, the question would be whether a citizen of a foreign country has an American constitutional "right" to the privacy of his/her telephone conversations made on foreign soil . . .

Tough questions indeed . . . .

[LaughingOtter]

Her decision does go to the 4th, though:

"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."

CNN has the full text up now.

[Tantalyr]

Ah thanks LO.

That raises even more problems. The first is standing. Do the journalists who brought the suit have standing to raise the alleged constitutional deprivations worked upon others who are not parties to the suit?

And the separation of powers holding sails upon largely uncharted waters. That is indeed a hot constitutional topic right now--witness its albeit brief discussion in the recent Guantanamo detainees case.

I'd be willing to wager a gold that the appeals court will stay that injunction pending appeal given all these tough issues.

[Peaches]

is indeed appealing, per cnn.

[Svayvti]

The judge wrote joined statements on how it violated each of those statutes. It will be VERY hard to turnover this opinion as each and every violation would have to be overturned.

Complete Ruling

[Seenu]

Ok since I do have some legal training, lets just take this very simply.

Washington, Lincoln, Wilson and FDR ALL monitored international calls and mail during time of war without a warrant. The President has this power under Article II of the Constitution (war powers).

The Supreme Court Ruled in 1971 that the President can do warrantless searches for matters of foreign intelligence.

Carter, Reagan, Bush 41, Clinton and GWB have all made executive orders giving this authority to the Attorney General and have done the same thing.

Bill Clinton searched FBI traitor Aldrich Ames house without a warrant because he was working for the Russians. Perfectly legal.

In Re: Sealed Case (2002) the FISA Court of Appeals also ruled that FISA was never intended to encroach on this Constitutional Power of the President. Other federal districts have ruled in favor of the President in this matter and the ACLU was engaging in forum shopping (that means finding a judge that is in their pocket). That judge, Judge Anna Diggs Taylor, sat on a board that raised money for the ACLU, according to the rules she should have recused herself.

The Federal Appeals court issued a stay immediately and right they should have.

Even if this power wasn’t in Article II it would still be legal. Why?

The 4th amendment protects you from UNREASONABLE searches. The legal test is, if Bobby bin-Laden is calling your house from Pakistan, or if you are calling Bobby bin-Laden in Pakistan, during a time of war, do you have a reasonable expectation of privacy? Well guess what the Supreme Court is going to tell you……

Of course if public schools taught civics and a little case law now and then people wouldn’t be fooled by the silly media hype.


.....and now you know the rest of the story.