Patterico's Pontifications


Ideologue Leftist Judge Rules NSA Program Unconstitutional

Filed under: Civil Liberties,Court Decisions,General,Judiciary — Patterico @ 5:52 pm

As I predicted last month, the NSA’s controversial surveillance program has been ruled unconstitutional by Judge Anna Diggs Taylor, an ideologue Carter-appointed judge who has a documented history of bending the rules to obtain the leftist result.

As I reminded readers last month, Taylor once engaged in a highly unusual attempt to take the Michigan affirmative action case from a conservative judge:

Earlier, Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Freedman, who had been assigned it through a blind draw–and who was suspected of being skeptical about affirmative action–and consolidate it with a similar suit against the university’s undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort . . . after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed “the highly irregular” effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences.

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?

I have not yet read the decision, but a limited sampling of reaction from intelligent lawyers across the blogosphere suggests that she did indeed twist the law, as I predicted she would.

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.”

Dan McLaughlin:

Judge Taylor’s opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process.

No, it’s not going over well at all — among people with intellectual integrity, that is. (Those lacking integrity are, naturally, thrilled.)

Again: this is no surprise. An activist leftist judge with little respect for established legal procedures could hardly be expected to do anything else.

UPDATE: It should be noted that some of the above commenters have expressed strong doubts about the program’s legality (like Volokh) or conclusive tentative opinions that it is illegal (like Kerr) — yet they are still utterly critical of the court’s reasoning, or lack thereof. The fact that intellectually honest people agree with the result but are so critical of the reasoning is damning indeed. Even dishonest folks like Greenwald must concede that the opinion is deficient in analysis and argument — but folks like that don’t care, as long as they like the result.

UPDATE x2: I have now read the opinion. It is one of the most embarrassing pieces of garbage I have ever read. The idea that a sitting federal judge wrote such a shoddy piece of junk in a high-profile case should make even the most rabid Bush-hater squirm.

The word “undisputedly” is repeated again and again as a substitute for any effort at analysis or argument.

The judge leaps to decide the constitutional issue ahead of the statutory one, in contravention of well-accepted principles mandating the opposite approach.

She fails to perform balancing tests, or to address solid arguments for a warrant exception — like the border search exception to the warrant requirement.

And tomorrow, the media will shun expert analysis that would reveal these glaring deficiencies in her “reasoning.” Count on it.

UPDATE x3: Xrlq has convinced me that Kerr’s opinion on the illegality of the program is tentative, not conclusive, and I have updated the post to reflect this.

65 Responses to “Ideologue Leftist Judge Rules NSA Program Unconstitutional”

  1. […] Update: Patterico’s knee jerks, but just a little. And with good reason. […]

    Hot Air » Blog Archive » Analysis: The NSA wiretapping decision (d4224a)

  2. Yeah, straightforward, honest reporting here, Patterico. Orin Kerr also happens to state that he believes the program is illegal and unconstitutional. Eugene Volokh concurs definitely on the illegality and leaves the unconstitutionality question open.

    You don’t like the ruling. That’s nice. Do you have anything substantive to say beyond character assassination of the judge who issued it and links to other people’s quotes?

    glasnost (52ba19)

  3. […] Patterico notes Judge Taylor’s “curious” attempts at getting herself assigned to the Michigan affirmative action case. […]

    An Army Lawyer :: District Court Decision on NSA Surveillance Program :: August :: 2006 (2f634e)

  4. glasnost,

    Usually when people say something is “possibly” illegal, that doesn’t mean they “definitely” think it’s illegal. So you, not I, have misrepresented Volokh’s opinion.

    The fact that intellectually honest people agree with the result but are so critical of the reasoning is damning indeed.

    Patterico (50c3cd)

  5. All you lawyers – I know you will disagree with me; you all have many time the last 3 years. This is another bad judge put on the bench by Jimmy! I have not herd of one good judge he put on the bench; and have been listening for 30 years – as I voted for him in 76!
    Carter is a crook and his people are either crooked or bad.

    Rod Stanton (e0cfd9)

  6. “As I predicted last month, the NSA’s controversial surveillance program…”

    “As I reminded readers last month, Taylor once engaged in…”

    “Based on this history, I predicted in my earlier post…”

    “…. she did indeed twist the law, as I predicted she would.”

    Hey, Pat, be careful…all this patting yourself on the back is going to hurt your tennis game…or cause some folks to wonder if Greenwald’s got you feeling a might insecure.

    Asinistra (63496f)

  7. Just Giving Geoff and Dan Something to Comment Abo…

    Patterico has a good rundown of conservative legal opinion on the ruling. If you care….

    The Chip Mathis Experience (59ce3a)

  8. As I recall, in your last you post you were criticizing the LA Times because they only described Judge Taylor as a “veteran judge,” and failed to mention who appointed her. So, I think it should be noted that in the Times report on the decision today they do, in fact, mention that judge Taylor is a Carter appointee.

    As for the rest of the legalese, not having any legal expertise, I don’t know what to make of it. Having read the Volokh posters, though, it does seem that the consensus is that the program is likely illegal (even if this particular judge is a hack). They appear to me to be a pretty sane bunch, so I’ll just have to go with that for now.

    Adam (63c2da)

  9. NSA eavesdropping program “unconstitutional” — More…

    See previous: NSA eavesdropping program ruled unconstitutionalIdeologue Leftist Judge Rules NSA Program Unconstitutional Patterico As I predicted last month, the NSA’s controversial surveillance program has been ruled unconstitutional by Judge Anna D…

    Old War Dogs (72c8fd)

  10. Her and her ilk, (Colman Young and his army of thieves) was the down fall of Detroit,and the main reason I left that state and never looked back.

    jainphx (6671f9)

  11. Adam,

    otoh 2 of the three Power Line lawyers think the program’s legal and the 3rd can’t make up his mind.

    IANAL but it’s plain to me if the laws don’t permit my government to protect my daughter and grandson properly it’s time to change the laws.

    Bill Faith (3cc7e8)

  12. I just read Orin Kerr’s post twice and I don’t see where he says “that it’s illegal and unconstitutional”. He says just about the opposite — that the judge did not make a case that it violates the Fourth Amendment. Which is consistent with what he has written in the past regarding the application of the Fourth Amendment at our borders.

    nk (4cd0c2)

  13. Bill,

    Point taken. I just tend to read the Volokh guys more, and I find that they tend to be significantly less partisan than Powerline (that’s only my opinion, though). Like I said, I don’t understand the legal issues well enough to truly form my own opinion. So it’s, sort of, a who do you trust issue.

    Adam (63c2da)

  14. Bill,

    The government can protect your daughter and grandson, but they have to do it legally. That may require them to get a warrent to listen to private conversations, and even show there is a reason they want to listen. This requst with the FISA court is hardly difficult; they have granted over 98% of the wiretap requests over a period of decades, and the process of getting a wiretap is secret. I can’t see why anyone would NOT want due process to protect individual rights.

    Doug (9f37aa)

  15. […] UPDATE IV: My bad, Judge Agenda is a Carter appointee, nonetheless I have a chance to read this ruling and it is absolutely laughable. Fact is that it reads like a post over the Kos. I’ve talked now with seven DOJ attorneys, two of which have no dog in the fight at this point, and the ruling had the same effect on them as me. Again, no worries as the ruling is stayed, we still get to find the bad guys and the 6th WILL eventually overrule it. Patterico has a summary of legal opinions today on the subject – not at all complementary of Judge Agenda – as it should be. […]

    Macsmind - Conservative Commentary and Common Sense » Blog Archive » Judge orders halt to NSA program - Look for an overturn on appeal (ca15f9)

  16. Well, gambling is illegal in many areas of the US, so they took it offshore!!

    bald01 (25b534)

  17. Hugh Hewitt commented that she did not even mention the FISA apppeals court ruling on the NSA surveillance. The ACLU is not on our side. The fact that the Isamists would cut the throats of the ACLU people does not faze them. This is another surrender pact.

    Mike K (416363)

  18. Judge Rules NSA Wiretapping Of Enemies In “the War On Terror of this administration” Unconstitutional…

    Not being a lawyer myself, I figured fisking Judge Anna Diggs Taylor’s opinion while pretending to know legalese might be a waste of your time. Luckily, there are plenty of smart legal minds in blogosphere that have already weighed-in and……

    The Political Pit Bull (64479c)

  19. This ruling sounded really weird until some people started digging into this Judge’s (joke) background. This isn’t the first time she has ruled politically instead of legally and violated her oath of office. Does anyone still wonder why no one has any respect for the court system, It’s time for us to pull a terrorst action on them and demonstate, happly, every time some nut whacks one of them.

    [Let’s not engage in rhetoric like this. It helps nothing and makes our side look bad. — P]

    Scrapiron (0d28df)

  20. […] The ACLU, a little jurisdiction shopping, and a Jimmy Carter-appointed ultra-liberal ideologue judge with a record of partisan political judicial conduct, a cooperative MSM, and voila! you have headlines shouting U.S. Judge Finds Wiretapping Plan Violates the Law. […]

    Never Yet Melted » NSA Counterterrorism Program “Unconstitutional” (a5b7d1)

  21. Patterico, I don’t have the legal knowledge to comment on this intelligently.

    I’m just curious. Can you tell us what you think of Fox legal analysis by former judge Andrew Napolitano?

    This is what he predicted would happen because this is what he believes is correct constitutional law. He also read the ruling and thought it was well reasoned legal theory and passionlessly written.

    I don’t know much about the guy. Just wondering why he would come to such an opposite conclusion as you.

    [Any lawyer who contends this opinion was well-reasoned either hasn’t read it, or is an idiot. — P]

    Chris from Victoria, BC (9824e6)

  22. Doug:This requst with the FISA court is hardly difficult…

    But whether it’s difficult or not doesn’t affect the question of whether FISA itself is constitutional or not.

    …they have granted over 98% of the wiretap requests

    Really? How long do they take, on average? 72 hours? A week? Two weeks? Two months?

    …over a period of decades…

    Window the stats and I think you’ll find that the marginal rate is falling rapidly.

    zeppenwolf (b142f8)

  23. Legal or not, constitutional or not, one thing is clear, the program does not involve domestic surveillance.

    Milhouse (e16dc7)

  24. The law is whatever a federal judge says it is.
    Don’t they teach you this in law school?

    petit bourgeois (ee1d60)

  25. ACLU vs NSA Leftist Judge Rules Unconstitutional…

    I am way too angry to post on this story even when it broke yesterday, this is being appealed and anyone with a half brain would agree that this is a vital tool in tracking terrorists. A MUST, please put more ears on the phones A.S.A.P. I agree w ……..

    Assorted Babble by Suzie (59ce3a)

  26. NSA Ruling…

    My eyes glaze over when I read this stuff. The NSA surveillance program was ruled unconstitutional. The ruling will be appealed and I don’t see how the Administration won’t win eventually. For all your analysis needs, see: ……

    Chris At Home (95d7b7)

  27. […] Patterico @ Patterico’s Pontifications: “I have now read the opinion. It is one of the most embarrassing pieces of garbage I have ever read. The idea that a sitting federal judge wrote such a shoddy piece of junk in a high-profile case should make even the most rabid Bush-hater squirm.” […]

    Common Sense Junction » Blog Archive » NSA Program Unconstitutional? (9f4d0e)

  28. Possibly the opinion has more facts in it than your post.

    Haven’t read the opinion and still opinionating = recipe for R-wing spin and heavy breathing.

    [Well, if you had read all of the updates, you’d know I have now read this terrible opinion. Before I read it, I simply rounded up others’ negative reactions and labeled them as such. Your problem with that is what exactly? — P]

    stevehar (de94b8)

  29. Toghe rosse a Detroit…

    Se non vi fidate troppo di come stanno raccontando in Italia la sentenza di un giudice federale di Detroit, che ha dichiarato incostituzionale il “Terrorist Surveillance Program” voluto dall’amministrazione Bush dopo l’11 settembre, vi consiglio di…

    The Right Nation (59ce3a)

  30. Patterico, do you have a link to the article by Kerr in which he “conclusively” determines the wiretaps illegal under FISA? I remember a piece where he tentatively reached that conclusion, but must have missed the one where it became a slam dunk.

    Xrlq (aa20a5)

  31. What was constitutional when Clinton was President is no longer constiutional, but it will be constitutional again should another Clinton become President!

    burt (64f30d)

  32. Ouch: NSA Ruling Unconstitutional…

    The smart guys over at Power Line tear apart the NSA ruling:
    Who’s afraid of Anna Diggs Taylor?

    “Anyone who knows what legal analysis and argument looks like — anyone who knows the requisites of legal reasoning — must look at the handiwork of …

    Neophyte Pundit (95d97e)

  33. […] As I expected, In its story on yesterday’s NSA ruling, the L.A. Times consulted with no independent legal experts regarding the validity of the opinion’s reasoning. That’s because independent experts almost universally decry the analysis as shoddy and unreasoned. […]

    Patterico’s Pontifications » L.A. Times Fails to Consult Legal Experts on NSA Decision (421107)

  34. […] What he said. I’ve got nothing to hide, either. I just want terrorists caught and justice served. More about the asinine court decision from Patterico, here and here. […]

    MY Vast Right Wing Conspiracy » To the NSA and President Bush (1b383c)

  35. Typical partisan ideologue rant.
    And he’s an L.A. Prosceutor too?

    So they teach our prosecutors to spew nonsense and vitriol when they disagree with a law?

    Something tells me this idiot (yes you patterico) has designs on a future run for political office.

    And he has the nerve to call the judge a leftist ideologue? Stupid partisan weenie: re-read the US Constitution and the 1st and 4th ammendments.

    It is sad that such people with such twisted logic are the same ones overfilling the courts and the prisons, in some vain effort to make themselves appear to be tough law and order types, yet cry like little spoiled babies when they are told they cannot subvert the law.

    Hey Patterico- GET OVER IT

    Angie (76d8c7)

  36. re-read… the 1st and 4th ammendments.

    Okay, we all went back, per your request, and reviewed/re-read the 1st and 4th amendments (sic).

    Which of the plantiffs involved in this case had his or her 1st Amendment rights violated?

    And how?

    Which of the plantiffs involved had his or her 4th Amendment rights violated?

    And how?

    Show us in Judge Taylor’s ruling where she shows that the above actions occurred.



    SteveMG (931506)

  37. As evidenced by several of the “reality based” commenters, the left is attempting to castigate honest objections to Judge Taylor’s decision as attacks upon her person.

    The problem is, bolstered by a sympathetic media, it works.

    Mention the fact that Taylor is a Carter appointee – an attack on her character!

    Mention her “highly irregular” behavior in the UMichigan affirimative action case – an attack on her character!

    bains (3f9c1c)

  38. I feel like I need to ask…

    Am I the only person who thinks this is exactly how our legal system was designed to work?

    Let’s give the legal system time to work.

    This decision is not taken in a vaccuum, that is why the appeals process exists.

    Maybe congress will actually get off their lazy backsides and actually start addressing how we *should* handle *any* of the difficult issues that face our nation, including this one.

    Brad (6369d3)

  39. […] The good news is we are a nation of laws. A decision will eventually be handed down by the SCOTUS and both sides will have to acknowledge and abide by the ruling. Even those of us who find the ACLU’s motives suspect have to appreciate the value of having a final decision rendered for this important legal question. Others blogging this: Patterico predicted the ruling: […]

    The Real Ugly » Blog Archive » NSA Wiretapping Program Unconstitutional? (4e8dcb)

  40. The dark legacy of Jimmy Carter – Updated…

    One of the more lasting legacies any president can leave is his selection of judges to the Federal bench. From district judges all the way to the Justices of the Supreme Court, a president’s choices can have far-reaching effects for…

    Public Secrets: from the files of the Irishspy (72c8fd)

  41. I tend to disagree with your assessment that a ruling against the NSA wire tapping program would be twisting the constitution. The President has an obligation to faithfully uphold the laws of congress, and FISA is one of those laws. Should the President and his administration feel that FISA is not adequate to protect the safety of the nation, it is in his rights to use the bully pulpit (no harsh connotation intended) to push congress to change or abolish the law; however, the President may not ignore the standing law. I also have yet to read the decision myself, and should I find a partisan spin put on constitutional law, I will be sure to return and post my complaints against it here in another comment.

    Jared (575743)

  42. On the NSA Ruling…

    In looking at the actual ruling in the NSA case by Judge Taylor (PDF here), I think that perhaps the WaPo editorial writers are over-reacting to a few cherry-picked lines from the opinion:
    THE NATION would benefit from a serious, scholarly and hard-hi…

    PoliBlog: A Rough Draft of my Thoughts (8bc707)

  43. she’s no benjamin cardozo, lol@”short shift” on page 42. brad in #39 has the right idea, this is just the first series of downs in what’s gonna be a long game. she gave one to the government, applying state secrets to the data mining claim, and one to the plaintiffs, enjoining the warrantless wiretapping.
    in the fourth quarter, in the red zone of the supreme court, the issue will be to what extent 1st and 4th amendment protections apply to communication between “u.s. persons” and people in foreign countries. there’s reason to question whether this communication should enjoy the same protection as strictly domestic communication. meanwhile, the ruling is stayed, nothing is changed, night follows day and hens continue to lay notwithstanding the hysterical blather of neocon bloggers. good morning fellow americans, hope your day is fulfilling financially, artistically, sexually, etc.

    assistant devil's advocate (88dd05)

  44. I appreciate the recognition of the program’s legal uncertainty. I won’t form an opinion on the quality of the judge’s legal opinion, but the quality of the judge’s opinion is not determinative of the legality of the program. The Supreme Court decision that will come will not make everyone happy either, but it will be definitive.

    glasnost (f00bfe)

  45. Thank you SteveMG, comment # 37.

    Can the participants at P’sPs hold a referendum to ban certain contributors of non-helpful comments, either by far R or far L or far-out? Reasoned disagreement is what we like to see. I like to see when P’s reasoning is shown superior to those who debate him, since I am not a lawyer myself, but ad hominum attacks do not qualify as reasoning.

    MD in Philly (3d3f72)

  46. you’re dumb.

    Richard C (5aa1f5)

  47. OK, I found the long Orin Kerr post on FISA. I was right that he doesn’t conclusively determine that the NSA wiretaps violated FISA, only that they probably did. That “probably” turns into a “probably not” once you pry apart the weakest link:

    Putting aside the AUMF and statutory exceptions for now, let’s consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and survillance in the U.S., and that’s all that is required. If the surveillance involved radio communications (satellite communications, I’m guessing), that’s a bit trickier. There is at least a little wiggle room in Section 1801(f)(1). For example, you could say that the border search exception eliminates Fourth Amendment protection, such that there was no reasonable expectation of privacy and therefore there would be no warrant required in an analogous criminal case. In that case, the tapping of the radio communication wouldn’t count as “electronic surveillance.” I don’t think we know the details of how the communucations were obtained, so I think it’s fair to say that the surveillance probably violated the basic proibition but it at least arguably depends on some of the technical details we don’t know.

    That’s whistling past the graveyard. For the tapping to have been done under subsection (f)(2), it’s not enough that NSA tapped wires; the acquisition of data had to occur inside the U.S. Maybe it did, but what on earth for? When monitoring international calls, it’s just as easy to tap the line right outside the U.S. rather than right inside. If they tapped outside, we’re out of subsection (f)(2), and right back into (f)(1), where we belong. There, no “electronic surveilance” occurs unless the U.S. person on U.S. soil was intentionally targeted, and then only if he had a reasonable expectation of privacy in the call. Orin’s “little wiggle room” regarding expectations of privacy at the border is only one theory for defeating any such an expectation, and probably not the strongest one. Another is to examine the privacy laws and practices of the other country involved in the call. If you talk on the phone to a country whose government is known to routinely monitor its telephone conversations, You. Have. No. Reasonable. Expectation. Of. Privacy.

    In sum, we don’t know enough about the NSA program to know for sure, but the smart money says it does not violate FISA, at least not on a regular basis.

    Xrlq (f52b4f)

  48. I don’t have an opinion of the validity of the argument of Judge Taylor. I will say one point she made, a restatement of Earl Warren, was profound, specifically that you cannot protect the nation by tearing down the fundamental freedoms the nation stands for. Having said that, from what is printed here, it appears her ruling may be fatally flawed. I’ll accept that it is.

    Whether you agree with her or not, there will be a SCOTUS ruling, of course a SCOTUS where 7 of 9 judges were appointed by Republicans, but nevertheless, that’s the way things are, and they’ll make their decision, and I’ll accept it. Once reviewed, unless some profound change in the law or landscape occurs, it will be reviewed only under the idea of Stare Decisis (as I understand), so the SCOTUS ruling will have far-reaching implications that will likely stand the test of time.

    Let us hope that SCOTUS can agree that the Office of the President at no time is allowed (even during war) to assume command over the citizenry nor suspend the rights laid out in the Constitution, that the President is required to live within the strictures thereof, not of local statute, but at least of the Constitution.

    A reasonable examination seesm to indicate that the 4th ammendment requires a warrant to search. I believe the Administration believes it isn’t “searching” per’se, but rather accumulating phone call patterns. This is the argument that this program probably will hinge, and it wouldn’t surprise me if the SCOTUS ruled one way or the other.

    However, arguing that the rather generic details of the program are so sensitive as to be above review because of “state secrets” is a horrid precedent to accept. If we ever get to a point where generalized information cannot be shared so that a necessary review of the actions of our Government are fair and legal can occur, then it’s a nation no longer worthy of claiming affinity to the ideals of our founders.

    The limitation is required, and much venom in Corporate Media expended because of the utter calamity asserted/purported that terrorists/potential terrorists found out that they MIGHT be wire-tapped. Its purported/alleged rather than reality first because of course as non-citizens, they already could have been monitored without a warrant, and second, the Administration requested an expansion of such power under the Patriot Act. Beyond all that, the objection isn’t really to monitoring the calls of terrorists, it’s data mining ALL of the calls to search for patterns, a distinction most of the right-wing world conveniently leaves out. The search isn’t just of people calling terrorists (or being called), it’s of everyone, and how that doesn’t constitute random search is unfathomable.

    Anyone attempting to reasonably argue that terrorist would have assumed they weren’t being listened to because the other end of the phone was a citizen is absurd in the extreme. How would anyone, citizen or no EVER have felt confident a tap gained clandestinely through FISA wasn’t in place? The answer is they wouldn’t assume that because they could never know if a warrant existed quite simply because FISA and its warrants were secret, and as such, they could have EVER felt safe, warrant requirement or not.

    Consequently, unless you think our adversaries are pattently stupid, use unsecure means with wonton disregard for their survival, (all of which we know conclusively is not the case) this program gained us NOTHING at all in terms of safety, other than MAYBE letting us nab idiots, and idiots who then weren’t really any threat. I’ve yet to see one shred of evidence of dangerous terrorists brought to justice by this program, and considering the scrutiny it’s been under, and Bush’s penchant for declassifying anything that suits his political purpose, regardless of the effect on security, I think we’d have heard about someone caught up by this program.

    Since FISA turned down only 4 cases in almost 9000 reviewed, since a warrant could retro-actively be granted, and an emergency review by obtained (normally in under 72 hours), there was no additional “flexibility” gained at all by this program. This program simply is the President flexing his muscles as Commander in Chief to attempt to exert the right to ignore legislative restraint. To be frank, it’s a re-argument of the Bolin ammendment objections to foriegn policy expenditure controls.

    Whatever SCOTUS decides, it is my hope they reestablish that the President is accountable to someone, even during “war.” It is my further hope that they question when this “war” will end, and if no reasonable answer can be provided by the Counsel for the White House, then SCOTUS should respond with a ruling that repudiates ANY President who would attempt to grasp nearly unlimited powers without ever having to surrender them. While you worry about the “appeasement” of tyrants in Islam, when is it you worry about your “appeasement” of the erosion of liberty?

    penigma (eccec3)

  49. When we look not just nationally, but globally, we can find one obvious trace of mankind…and that is…Mankind’s tendancy to “do what’s right in his or hers own eyes”, whether that be from a child growing up…or to world leaders. Integrety is hard to find these days…and even when we personally think we have it ourselves…we find ourselves void of “less” than what is in our hearts…

    That doesn’t void us of doing what is right and good for the people of this nation or other nations…for ourselves, our families and their future…

    Our forefathers I believe, in my opinion…had a gift that allowed them to look beyond the short term and self interested opportunities of their day…and to the best use of that gift…strove to give us an inheritance in the form of a Constitution.

    That is what all Americans have in common…and it needs to be protected…It’s what makes us Americans…and at Liberty!

    The constitutionality of our present President’s decision to allow the NSA’s wiretapping program to take place brings challeneges from many, whether leftist, rightist or wrongist (smiles).
    The challenge is to an “Amendment”, and I emphasis the word “Amendment” to the Constitution.

    It seems amendments are made when change needs to take place, or in the case of the 4th Amendment, when it is deemed by the “People”, not an individual or special interest group, that something has been overlooked in our freedoms, inherited by us, and purchased in blood for us by our afore mentioned forefathers…

    Judge Taylor cannot make an ammendment to the “Ammendment”. That’s the People’s choice…but neither can the President or his administration over look what has been established as law, for the people…and I hope they haven’t…it’s not overwith yet…

    As someone else mentioned somewhere “Kings? We Americans have no Kings! We have husbands who are rulled by their wives!” (more smiles)…and I mention that as some here locally have accused the President’s actions as that being those of a king.

    I don’t believe the argument that Judge Taylor made will hold…I do believe it will take on a challenge to a higher voice, just like the Presidential vote did in Florida.

    This president has had much that needed taking to the Judge. It’s how he got his start and it is how he will finish. That made other judges in disagreement put this president on the liberal hit list…(my observation).

    If American’s are safer because of the NSA’s wiretapping program, I’m glad…I’m one benefiting right now from it…as for my personal privacy…as soon as the first written letter was invented, maintaing privacy became an issue, thousands of years ago…it’s now in the form of phone calls, communications of all sorts and including internet technology…

    Right now…it looks like the President was half right to some…totally right to others…totally wrong to the rest…

    I do wonder if President Bush sat down with the best of the lawyers he could find in the land, or counceled with any of the top judges of the land before he allowed the NSA to take on the task now being challenged…

    I am glad they are protecting us…as long as it is not at the expense of my liberty…

    But on the untrusting side of my own heart…I look to see if this was about power and money…gain of some type…from someone…

    Follow the money…Both with Judge Taylor or with key figures of the original councel that went to our President concerning the wire taps…but those of us concerned hope all was for our best interest as a Nation…a great Nation…and not for self interest…

    Dave Brooks
    BrookStone5 Communications

    DaveBrooks (f0c684)

  50. To # 46 RE: Your comments below.

    You Wrote

    “Can the participants at P’sPs hold a referendum to ban certain contributors of non-helpful comments, either by far R or far L or far-out? Reasoned disagreement is what we like to see.

    Comment by MD in Philly — 8/18/2006 @ 10:04 am”

    While I agree that comments can be disruptive, mean-spirited and annoying, I would respectfully suggest that a problem arises from your suggestions. Specifically, who, even with referendum, becomes the arbiter of poor taste?
    Or in your POV, what is “Far out.”

    You have illustrated perfectly what is wrong with censorship.

    ariel (76d8c7)

  51. […] As I argued last night, Judge Taylor’s NSA opinion is a legal disaster. It is conclusory and overblown. It utterly fails to engage (or even acknowledge) the most serious arguments made by the Bush Administration. […]

    Patterico’s Pontifications » Greenwald: Untrammeled Executive Power Bad, Untrammeled Judicial Power Good (421107)

  52. Am I the only one who remembers her late husband, Charles Diggs Jr.? He was a Congressman from Detroit at the time of her appointment to the federal bench (1979). He was also appealing his 1978 conviction on 29 counts arising from his operation of a kickback scheme from his own staff (which netted him $66,000). In 1980, he finally resigned his seat and headed to prison.


    NickM (d8da01)

  53. For Ariel, #51:
    For members of a private, i.e. non-government sponsored, discussion, we are guaranteed the right to assemble with whom we choose, are we not? It is not censorship if someone posts, “Patterico, you’re an idiot, you don’t know law” repeatedly and said poster is denied the privilege (it is not a right) to be part of the discussion.
    Trusting that P. is not inclined to take action except for the most inflammatory and profane on his own opinion alone, I made post #46 as an oblique agreement with SteveMG re post #36. It may have been better to ignore the comment all together.
    Ariel, do you feel nobody “can be the arbiter of poor taste”? If I put in a link to a site showing sado-masochistic child pornography would it not be reasonable to be condemned?
    My insertion of the term “far out” was an (apparently failed) attempt at tongue in check humor, at the moment I wrote it seemed to have a nice ring added to Far R and Far L. (Please, at least give me credit for not being “partisan”, equal treatment for both R and L.) Besides, my suggestion had already accomplished a great deal, as witnessed by post #47.
    For penigma, #49: You state,

    Let us hope that SCOTUS can agree that the Office of the President at no time is allowed (even during war) to assume command over the citizenry nor suspend the rights laid out in the Constitution, that the President is required to live within the strictures thereof, not of local statute, but at least of the Constitution.

    Is it not true that the President is given power in war time to act in a manner not otherwise allowed, for example suspending habeas corpus, as Lincoln did? If anything the risk to the country posed by an individual could be much greater now than 140 years ago. Did not FDR also do things during WWII that were a more significant departure from the norm than President Bush has done? That being said, it does not mean he is unaccountable. Even in wartime if the Commander-in-Chief acts in a manner unacceptable to the Congress he can be impeached, right? But it would not be over a mere difference of opinion but would need to have real substance.

    I will try to refrain from future posts that generate unnecessary banter.

    MD in Philly (3d3f72)

  54. […] As I argued last night, Judge Taylor’s NSA opinion is a legal disaster. It is conclusory and overblown. It utterly fails to engage (or even acknowledge) the most serious arguments made by the Bush Administration. […]

    The Real Ugly » Blog Archive » Patterico Pummels Greenwald (4e8dcb)

  55. Friday Wingnut Roundup (Saturday Edition)…

    Gee, do you suppose the wingnuts have anything to say about Judge Diggs Taylor’s rejection of the Dear Leader’s Terrorist Surveillance Program™? You know, the program that had absolutely nothing to do with the capture of the British terrorists? Cou…

    AGITPROP: Version 3.0, Featuring Blogenfreude (72c8fd)

  56. Judge Taylor ruled that the wiretaps violated the First Amendment.

    No amount of logic twisting can claim that secretly listening to telephone calls violates freedom of speech.

    Michael Ejercito (0407a6)

  57. Thanks for your opinion, Patterico!

    [Any lawyer who contends this opinion was well-reasoned either hasn’t read it, or is an idiot. — P]

    While I don’t have the legal knowledge or inclination to get into analyzing this ruling affecting your country’s war efforts, I always think that Andrew Napolitano of Fox News is very pleasant and affable, but somehow deems he is an expert on all legal things everywhere.

    And I just don’t buy it.

    Contrast this to Greta Van Susteren who asks questions to gather information rather than being the expert in everything.

    By asking questions studiously and learning, she comes across more as an expert to this lay person, if only because she draws from others who know more.

    As far as the ruling goes, I’m at a loss to understand how a president, in war, can’t listen to enemy communications when you are discovering, monthly, incredibly lethal plots designed to kill your citizens.

    But then, I’m just a simple man.

    Chris from Victoria, BC (9824e6)

  58. Is Judge Anna Diggs Taylor Trying To Free Jon Bene…

    Although I don’t have any evidence that Judge Taylor’s ruling has anything to do with the case against JonBenet Ramsey’s killer, I don’t think that should stop me from speculating….

    Jon Swift (59ce3a)

  59. I was somewhat shocked by the decision, when I finally got to read it; it seemed as though the judge had simply declared that the fourth amendment was obviously violated, without actually explaining her rationale at all.

    Bad judge. Even though I like the result, the means was questionable at best. I hope the appeals court does a better job.

    aphrael (3bacf3)

  60. Patterico, you dishonest lackwit.

    “She fails to perform balancing tests, or to address solid arguments for a warrant exception like the border search exception to the warrant requirement.”

    She made no argument for the government that the DOJ either chose not to make or failed to make themselves. What you now criticize this judge for is her NOT making the government’s arguments for them.

    Supplying arguments for one side is the definition of an activist judge, you dipstick, against which you have long bleated and bellowed.

    Oh. I forgot. How silly of me. An “activist judge” is any justice whose rulings you disagree with.

    I noticed, too, you attack her personally, her style, and her race. Please don’t pretend the old codewords of ‘affirmative action’ don’t translate as ‘nigger’ to you and your conservative knuckle-draggers. You went out of your way to bring up the race angle.

    No doubt by going after the messenger you hope to deflect and distract from the implications of her message: Bush has been caught breaking the FISA law, a felony. This still remains inspite of what you insist about the constitutional issues.

    A president who has systematically committed felonies in violation of a clear criminal law (while bragging about the authority to superceede the law while doing so) apparently means far less to you than whether or not her opinion is elegantly written. Or her race.

    By the way, I have a prediction of my own. For this case, every judge will prove to be an “activist judge” on this issue for you, right up to the Supreme Court. Your dishonesty stems from pretending to not know why.

    The only ideologue I can see here who favors bending the rules for partisan gain and whitewashing this criminal behavior is you.

    [Thanks for providing an excellent example of the sort of comment that isn’t allowed here. You can make the same incorrect and misguided points in a non-assholish way and you will be allowed to comment. But when your comment reads like this, you’re gone. Goodbye. — P]

    binz (5548bb)

  61. Chris from Victoria, BC @ 8/19/2006 @ 5:39 pm said:
    “As far as the ruling goes, I’m at a loss to understand how a president, in war, can’t listen to enemy communications when you are discovering, monthly, incredibly lethal plots designed to kill your citizens.”

    NOBODY is saying the US government does not the the right to eavesdrop on enemy communications, even domestic communications between US citizens. In fact, it is vital they do this for law-enforcement and security. HOWEVER, the heart of the matter is HOW they do it. They must do it in accordance with the LAW.

    Among the things the law requires for the government to do this is a warrant.

    The FISA law specifically covers domestic communications. And it requires a warrant — one that can even be issued after the fact.

    This required warrant represents judicial oversight to prevent widespread abuse of this power — the abuse of which was why FISA was enacted in the first place. But Bush has decided he can ignore even this modicum of oversight.

    Really, Chris, can you not think of how such incredible search powers might be abused unless the government has some form of oversight on its eavesdropping?

    How come that isn’t clear? A president who decides he is not answerable to anyone is clearly no longer behaving like a president of a democracy.

    binz (5548bb)

  62. You can’t break the law to enforce the law.

    procounsell (15de03)

  63. You can ‘break’ a law that is shown to be irrelevant.

    steve miller (724340)

  64. You can ‘break’ a law that is shown to be irrelevant.

    How was it ‘shown to be irrelevant?’ What does that even mean? If it was ‘shown to be irrelevant,’ then why did the Bush administration carry it out in secret?

    Levi (74ca1f)

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