NSA Wiretap Program ruled Unconstitutional

[TheDoctor]

While I do not recall the justices handing down a ruling that said, "Bush is not a king," I think this is very good news.

The Guantanamo Detainee case that came down at the end of the term actually had a reference to the concept that the president does not have absolute authority and that the Constitution does not allow for the President to act like a king.

I have skimmed this decision. It is well written. The key holdings are that the State Secret Priviledge does not apply and the NSA program violates the First and Fourth Amendments and the Separation of Powers doctrine. Bush needs to go back to the FISA Court for warrants and does not have the authority to ignore a law passed by Congress, i.e. FISA.

As for the so called brittish plot, this is a red herring. None of the calls for this plot were to anyone in the United States. This ruling only requires a warrant for any calls to or from someone in the US. The US govt is free to tap or listen into calls of Rich and any one in the UK under US law.

 

[pansmermaidzlagoon]

You are correct. Many in the Justice Department and at the NSA objected to the program and hence all of the leaks. These people will protected as whistleblowers given the fact that the program has been found to be unconstitutional.

(..as the wife of a former NSA employee and certainly given the facts above, it kinda irked me.....)

 

[dennis99ss]

If I remember 1984 ( I really need to go back and read that book.....it has been since 1984 or so since I read it) I recall the government being able to

listen to you on the phone, through the tv, know what you are watching, know what you are doing, know what you are reading, know who you are talking to, know where you are going, program you to believe certain things by propoganda.

so, how is that different fropm today?

Gov't can look at who you call
can listen to your phone
can watch what you do on the net
has cameras all over the cities, monitored
tracks financial transfers, etc.
tracks library check outs
and fills the airwaves with propoganda

Not much different from 1984

Does it make a difference that the government states that they do this for an end that is desired?

What difference does it make to the dead, the orphans, and the homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty and democracy?

and, another from Ghandi

And, with regards to the Bush Administration

The moment there is suspicion about a person's motives, everything he does becomes tainted.

 

[Cool-Beans]

If they happened to catch you and label you a bad guy, I'd bet you'd ask how they did it.

But apparently it's easy to look the other way when it "has nothing to do with you". What so many people fail to realize is stuff like this has to do with ALL of us.

But this is a way old debate, and one I should know better than get involved in.

Obviously, we see things differently. That doesn't mean I have failed to understand something you were able to grasp.

They way they used to do it was better, in my opinion.

 

[sodaseller]

Warrantless wiretaps will be like other curtailments of civil liberties - OK till it hits home,. Asset forfeiture is the paradigmatic example. Strong public support for 20 years, then strongly scaled back through 3 USSC decisions in the early 90s, based upon legal issues that were always present but earlier rejected. Innocent owner defenses used to go nowhere when the innocent owner was a ghetto grandmother or convenient store. But then it started hitting middle class white people, suddenly the same elastic legal standards whereby we needed to grant the police the power to fight crime were no longer operative. When it hit close to home, that was different matter - we didn't mean that!

What those favoring profiling are saying now is "it won't effect me." This, complaint from average Muslims that it is harassing and humiliating and intrusive falls on deaf ears. But when good middle class white people start facing the same harassment, it will be a different story. Just like many Dominion types favor majoritarian religious culture till they move to Utah.

Heck, look at the post 9/11 proposal to use the NICS to track potential terrorists:

http://www.sptimes.com/2002/07/30/news_pf/Opinion/The_NRA_poster_boy.shtml

His latest outrageous behavior comes in the debate over the National Instant Criminal Background Check system, called NICS. It works this way: When someone buys a gun, the FBI or state law enforcement officials do a background check to keep firearms out of the hands of convicted felons, fugitives and illegal aliens. The law allows those records to be retained for 90 days, after which they must be destroyed. Ashcroft wants the records purged after a single day.

Those 90 days are important to law enforcement officials, who often discover after the fact that a gun was illegally purchased. They can then use NICS records to find the buyer and retrieve the gun. In fact, of the 235 illegal gun sales in a recent six-month period, all but 7 took longer than a day to be noticed, according to a new study by the General Accounting Office.

Ashcroft says using the records for criminal investigations is illegal, claiming it is an invasion of gun owners' privacy. This isn't the only time the attorney general has given the law his own interpretation to advance the gun industry's agenda.

When the FBI began rounding up foreign residents after the Sept. 11 terrorist attacks, the agency wanted to use NICS records to determine if those suspects had purchased guns, possibly illegally. Ashcroft said no and in December testified to U.S. Senate that "Congress specifically outlaws and bans . . . the use of approved purchase records for weapons checks on possible terrorists or anyone else."

Not exactly. Recently, a Justice Department memo dated two months prior to his testimony surfaced. "We see nothing in the NICS regulations that prohibits the FBI from deriving additional benefits from checking audit log records" as part of their terrorism investigation, the memo stated.

Now Ashcroft's position may have been totally defensible (there were strong arguments for it), and the Second Amendment is a core constitutional right (I'm not trying to start that debate), but the simple fact is that when other core constitutional rights were curtailed and some complained, they were asked to endure the sacrifice to prevent terrorism. But when it was a right the Right held more sacrosanct, all of the sudden the ethos of sacrifice your constitutional rights for the common good didn't seem so attractive

 

[bimshire]

It's about time somebody stop King Dubya and his Christo-fascists.
Stop permitting fear and scare to dictate our lives.

May Checks and Balances within the Constitution prevail.

 

[Bob Slydell]

They way they used to do it was better, in my opinion.

You mean secretly taping people's conversations instead of being upfront about it?

 

[bimshire]

Highlight from the ruling:

"Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

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.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte
Milligan, we have been taught that the “Constitution of the United States is a law for rulers and
people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). Again, in Home Building & Loan ***’n v. Blaisdell, we were taught that no emergency can create power."

 

[TheDoctor]

As I mentioned, the decision is well written. Here are some excepts.

...it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title II, and the First and Fourth amendments, would be immunized from judicial scrutiny. 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 condensed into a single branch of government.".....

"The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth [Amendment] in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."....

"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 power not created by the Constitution. So all "inherent power" must derive from that Constitution."

 

[DancingBear]

So "unconstitutional" it aided in this past terror plot, in the UK.

Pathetic.

Where did you get that from?

 

[ChrisFL]

"V for Vendetta" is another good story about what can happen when people give up all of their civil liberties in the hopes that their friendly government is trying to protect them.

 

[jgmklmhem]

I wouldn't start celebrating too soon. The ruling was handed down by one judge who has ties to the democratic party as was recently highlighted just last week in the Detroit Free Press noting that she "is a liberal with Democratic roots" who campaigned for Jimmy Carter in 1976 and was "rewarded" in 1979 with a judicial nomination. The paper adds:

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."

The ruling has already been appealed.

 

[ford family]

Supposedly the "bombers" that were a week away from a dry run had not obtained passports

Mmmm, interesting, I wonder how they got to and fro Pakistan for their training sessions and to record their martyr videos if they didn't have passports?

ford family

 

[dcentity2000]

One thing comforts me when it comes to the current terrorist threat.

Our governments will and do trumpet each and every time a plot is foiled and I have no problem with this. This gives us a pretty good idea of the frequency of the attacks and that figure is far south of that which the IRA achieved.

Then again, the IRA tended to go for smaller attacks.

I dunno. Six and one half a dozen of the other, isn't it?



Rich::

 

[sodaseller]

Mmmm, interesting, I wonder how they got to and fro Pakistan for their training sessions and to record their martyr videos if they didn't have passports?

ford family

make sure you get updated information

Link

British officials knowledgeable about the case said British police were planning to continue to run surveillance for at least another week to try to obtain more evidence, while American officials pressured them to arrest the suspects sooner. The officials spoke on condition of anonymity due to the sensitivity of the case.

In contrast to previous reports, one senior British official suggested an attack was not imminent, saying the suspects had not yet purchased any airline tickets. In fact, some did not even have passports.

 

[richiebaseball]

make sure you get updated information

Try a little more updated than August 14.

http://msnbc.msn.com/id/14381902/site/newsweek/

Aug. 16, 2006 - British and American government officials are acknowledging that U.K. authorities had to round up suspects in an alleged plot to destroy transatlantic airliners with liquid explosives earlier than they wanted to because of a still unexplained premature move by Pakistani authorities. Meanwhile, authorities are still trying to figure out whether there’s a definitive link between last week's plot and Al Qaeda.

Officials on both sides of the Atlantic say the arrest by Pakistan of Rashid Rauf, a suspected key figure in the plot, sparked fears among British and U.S. investigators monitoring the plot that suspects back in the U.K. could be alerted to the fact that they were under heavy surveillance from British police and intelligence services. According to one U.S. law-enforcement source, after Rauf's arrest, U.S. authorities learned that a message had passed from Pakistan to the alleged plotters that their scheme might have been compromised but that they should proceed with the attack anyway.

 

[sodaseller]

Try a little more updated than August 14.

http://msnbc.msn.com/id/14381902/site/newsweek/

But not more updated in terms of whether this was a true imminent threat as represented, which looks less likely every day. And even the "Pakis made us do it" argument remains a bit tenuous.

But we now know that the initial claims that taking down 10 planes are so was a week to a month away is not close to true

 

[TheDoctor]

Again, this is a red herring. The injunction in this case would not have prevented the NSA from helping the Brits. The injunction in this case only requires that the NSA get a warrant for wiretaps of calls either originating in the US or made to someone in the US. Under US law, the NSA can wiretap and help on purely international calls without a warrant.

 

[richiebaseball]

But not more updated in terms of whether this was a true imminent threat as represented, which looks less likely every day. And even the "Pakis made us do it" argument remains a bit tenuous.

But we now know that the initial claims that taking down 10 planes are so was a week to a month away is not close to true

How far along does the plot need to be before action is taken?

Who gets to decide?

In the article you linked, British officials wanted to wait a week. In the article I linked the following;

Because the plot was rolled up earlier than the British wanted—and officials indicated that the British only wanted a few more days of surveillance—

So is this argument about the US wanting the plot "rolled up" a few days to a week earlier than the British wanted it? Hey, what's a few days or a week.

I wonder how far in advance terrorists purchase their tickets? Maybe they like the 14 day in advance rule to take advantage of the savings.

The reality is, there was a plot to blow up some airplanes and kill people. It would have been attempted in the near future. And hopefully it's been stopped. But apparently the timing wasn't perfect for some.

 

[TheDoctor]

I wouldn't start celebrating too soon. The ruling was handed down by one judge who has ties to the democratic party...

This same judge also dismissed part of the ACLU's claim based on the State Secrets doctrine.
http://msnbc.msn.com/id/14393611/

While siding with the ACLU on the wiretapping issue, Taylor dismissed a separate claim by the group over NSA data-mining of phone records. She said not enough had been publicly revealed about that program to support the claim and further litigation would jeopardize state secrets

The US Supreme Court shot down a large part of the justification for the wire tap program when it held that Aurthorication to Use Military Force did expand or grant any additional powers to the executive. No matter how conservative the Sixth Cir is, it can not ignore Supreme Court authority.

I just love this one sentence from the opinion.

There are no hereditary Kings in America and no power not created by the Constitution. So all "inherent power" must derive from that Constitution."