NSA Wiretap Program ruled Unconstitutional

[Charade]

Tell me again which Democrats where in on the briefings of this program since it's inception? I forget.

 

[TheDoctor]

Tell me again which Democrats where in on the briefings of this program since it's inception? I forget.

The claim that bush properly brief the Democrats and Congress has been established to be false.
Rep. Jane Harman pointed out that the briefings did not comply with the law and now the non-paritsan Congressional Research Service has confirmed Rep. Harman's position. http://www.nytimes.com/2006/01/19/politics/19nsa.html

WASHINGTON, Jan. 18 - A legal analysis by the nonpartisan Congressional Research Service concludes that the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are "inconsistent with the law."

The analysis was requested by Representative Jane Harman, the ranking Democrat on the House Intelligence Committee, who said in a Jan. 4 letter to President Bush that she believed the briefings should be open to all the members of the House and Senate Intelligence Committees.

Instead, the briefings have been limited to the Republican and Democratic leaders of the House and Senate and of the Intelligence Committees, the so-called Gang of Eight.

Since 2002, the security agency has intercepted the international phone calls and e-mail messages of some Americans and others in the United States who the agency believes are linked to Al Qaeda. The eavesdropping was authorized by an executive order signed by President Bush but without the court warrants usually required.

The Senate Judiciary Committee on Wednesday scheduled an open hearing on the eavesdropping program for Feb. 6. The hearing, titled "Wartime executive power and the N.S.A.'s surveillance authority," is expected to include testimony from Attorney General Alberto R. Gonzales.

In an interview on Wednesday, Ms. Harman, of California, said she had been invited to another briefing on the program at the White House on Friday and had urged senior administration officials to open the session to the full committees.

She declined to name the officials, but a Congressional staff member said they were Andrew H. Card Jr., the White House chief of staff; and David S. Addington, Vice President Dick Cheney's chief of staff. Mr. Cheney's office oversees the briefings on the surveillance program.

Of the Congressional Research Service analysis, Ms. Harman said, "It's a solid piece of work, and it confirms a view I've held for a long time.".....

The Congressional Research Service memorandum, sent to the Intelligence Committee on Wednesday, explores the requirement in the National Security Act of 1947 that the committees be kept "fully and currently informed" of intelligence activities. It notes that the law specifically allows notification of "covert actions" to the Gang of Eight, but says the security agency's program does not appear to be a covert action program.

As a result, the memorandum says, limiting the briefings to just eight members of Congress "would appear to be inconsistent with the law."

Bush and company has repeatedly lied and said that congress was fully brief on the program. Well it is not clear that the so called briefings did not comply with the law. Again, this program is illegal and so far every argument advanced by the bushies to support the program have proven to be false.

 

[bsnyder]

Well, I've now slogged through about 2/3's of the PDF file containing the opinion (hard going for anyone who's not a lawyer) and two thoughts immediately come to mind:

1. We are truly beyond the looking glass

2. The Democrats should be thanking their lucky stars that the vast majority of the voting public doesn't pay very close attention to the details on stuff like this and that their accomplices in the MSM aren't about to point out certain uncomfortable facts.

In the section of the opinion that deals with the standing issue, there's this:

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP 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.

Further, Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and concrete harm. Plaintiffs’ declarations state undisputedly that they are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients. In addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of having to travel and meet with clients and others relevant to their cases.

[footnote 7]See generally, in a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. (Exh. J, Hollander ). Attorney William Swor also provided a similar declaration. (Exh. L, Swor Decl. ). Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq. (Exh. K, McKelvey Decl.).

So, the people who are suing are attorneys and journalists working for/with terrorists, insurgents and Al Queda members. And they are complaining that the federal government's TSP program has had a "chilling effect" upon their communications with their clients. And furthermore, they've had to incur travel expenses since they can no longer talk freely on the phone.

Oh the injustice of it all!

 

[bsnyder]

Tell me again which Democrats where in on the briefings of this program since it's inception? I forget.

http://www.usatoday.com/news/2006-05-17-nsa-list.pdf

 

[Charade]

http://www.usatoday.com/news/2006-05-17-nsa-list.pdf

Hmm... that's interesting.

It took until the NYT broke this story for the Dems to have a problem with it?

I'm sorry but they are trying to blow smoke up our butt with this outcry of outrage.

 

[JoeEpcotRocks]

Hmm... that's interesting.

It took until the NYT broke this story for the Dems to have a problem with it?

I'm sorry but they are trying to blow smoke up our butt with this outcry of outrage.

The sorry state of politics.

The Dems are caught in-between tyring to pander to the vocal left while still trying to show they are "tough" on terrorists.

As anyone seen any real Dem ideas on fighting terrorism lately -- other than cut-and-run.

 

[bsnyder]

Hmm... that's interesting.

It took until the NYT broke this story for the Dems to have a problem with it?

I'm sorry but they are trying to blow smoke up our butt with this outcry of outrage.

What's particularly ironic is those defending the NY Times' decision to publish classified national security information kept claiming that of course the terrorists already know that we monitor their calls. Then we find that, to the contrary, the publicity about the program has had a "chilling effect" on the terrorists inclination to communicate. And that was the basis for the judge's ruling that the plantiffs had standing in ACLU vs. NSA.


Like I said - through the looking glass! It literally boggles the mind!

 

[MickeyMouseGal]

*popping in*

Slightly off topic, but that Scott Greenwood guy quoted above is known around greater Cincinnati as a real loose cannon. He's currently being sued because he defaulted on his student loans. Apparently, he must think that paying back money must be some kind of infringement on his civil liberties.

*popping out*

 

[VampHeartless]

'bout friggin time.

 

[bsnyder]

The claim that bush properly brief the Democrats and Congress has been established to be false.
Rep. Jane Harman pointed out that the briefings did not comply with the law and now the non-paritsan Congressional Research Service has confirmed Rep. Harman's position. http://www.nytimes.com/2006/01/19/politics/19nsa.htmlBush and company has repeatedly lied and said that congress was fully brief on the program. Well it is not clear that the so called briefings did not comply with the law. Again, this program is illegal and so far every argument advanced by the bushies to support the program have proven to be false.

Yeah, I remember when Rep. Harmon fell back in line with her party with that letter. After all, she had to do something to make up for this embarassing moment of candor immediately following the Times' disclosure of the TSP program:

Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21:

As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities.

The facts are quite plain. Congressional Democrats were briefed on the program from its' inception. Not one of them complained until the NY Times published. And none of them have called for the program to be halted.

I'm sorry but they are trying to blow smoke up our butt with this outcry of outrage.

Indeed!

 

[TheDoctor]

Well, I've now slogged through about 2/3's of the PDF file containing the opinion (hard going for anyone who's not a lawyer) and two thoughts immediately come to mind:

1. We are truly beyond the looking glass

2. The Democrats should be thanking their lucky stars that the vast majority of the voting public doesn't pay very close attention to the details on stuff like this and that their accomplices in the MSM aren't about to point out certain uncomfortable facts.

A funny definition of the Civil Procedure from something called the Official Lawyers Handbook is something to the effect that these are rules that allow one to avoid litigating the merits of an issue. Standing is a way for the courts to avoid reaching the merits of a decision.

Standing is complex and is not surprising that you are unable to understand this issue. Remember that the Texas GOP attacked the standing in the Delay case and lost. There the Texas Democratic Party was able to maintain standing on the grounds that allowing the Texas GOP to substitute a new candidate for Delay would increase their cost and that Delay was a great target for fund raising for the party. The Federal District Judge appointed by G.H.W. Bush, the Fifth Cir. and Scalia all agreed that the Texas Democratic Party had standing in that case.

The Bushies are doing their best to avoid litigating the merits of the NSA wiretap program because they know that they will lose. The US Supreme Court has already rejected the concept that the AUMF is some sort of blank check that allows bush to violated other laws. The only way that the bushies are going to win is if the court ducks the issue on the basis of something like standing or the states secret doctrine. The merits of the case are against bush and so they are relying on procedural tricks to avoid the merits.

 

[LuvDuke]

A funny definition of the Civil Procedure from something called the Official Lawyers Handbook is something to the effect that these are rules that allow one to avoid litigating the merits of an issue. Standing is a way for the courts to avoid reaching the merits of a decision.

Standing is complex and is not surprising that you are unable to understand this issue. Remember that the Texas GOP attacked the standing in the Delay case and lost. There the Texas Democratic Party was able to maintain standing on the grounds that allowing the Texas GOP to substitute a new candidate for Delay would increase their cost and that Delay was a great target for fund raising for the party. The Federal District Judge appointed by G.H.W. Bush, the Fifth Cir. and Scalia all agreed that the Texas Democratic Party had standing in that case.

The Bushies are doing their best to avoid litigating the merits of the NSA wiretap program because they know that they will lose. The US Supreme Court has already rejected the concept that the AUMF is some sort of blank check that allows bush to violated other laws. The only way that the bushies are going to win is if the court ducks the issue on the basis of something like standing or the states secret doctrine. The merits of the case are against bush and so they are relying on procedural tricks to avoid the merits.

Then again, they could've just got the damned warrants and not look to reinvent the wheel Bush-style.

 

[TheDoctor]

Yeah, I remember when Rep. Harmon fell back in line with her party with that letter. ....

The facts are quite plain. Congressional Democrats were briefed on the program from its' inception. Not one of them complained until the NY Times published. And none of them have called for the program to be halted.

You are totally wrong here. The Congressional Reseach Service concluded that the so-called briefings were in violation of the law. Again, try reading the article posted.

WASHINGTON, Jan. 18 - A legal analysis by the nonpartisan Congressional Research Service concludes that the Bush administration's limited briefings for Congress on the National Security Agency's domestic eavesdropping without warrants are "inconsistent with the law."

Bush caon only get by with advising the gang of 8 if the program was a covert operation and the NSA illegal wiretap program did not meet that definition. The fact that bush's so called briefings were inadequate as a matter of law may not make a difference to you but some people respect the rule of law.

 

[bsnyder]

You are totally wrong here. The Congressional Reseach Service concluded that the so-called briefings were in violation of the law. Again, try reading the article posted. Bush caon only get by with advising the gang of 8 if the program was a covert operation and the NSA illegal wiretap program did not meet that definition. The fact that bush's so called briefings were inadequate as a matter of law may not make a difference to you but some people respect the rule of law.

Try reading what I wrote again:

1. Congressional Democrats were briefed on the program from its' inception.
2. Not one of them complained until the NY Times published.
3. And none of them, TO THIS DAY, have called for the program to be halted.

Which of these statements is wrong?

 

[bsnyder]

Then again, they could've just got the damned warrants and not look to reinvent the wheel Bush-style.

Makes a nice talking point for those suffering from Bush Derangement Syndrome, I know, but it has no practical application in the real world that the rest of us live in.

 

[TheDoctor]

Professor Laurence Tribe has responded to the silly article in the NYT on the ruling. http://balkin.blogspot.com/2006/08/bloggerati-response-to-judge-taylors.html

Dear Adam,

Good story on this morning's front page about Judge Taylor's unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program,. However, I have a reaction that may not be exactly what the "doctor" ordered -- or what you might have anticipated -- that I wanted to share with you and with some of those you quoted, as well as with a couple of other friends and that you should feel free to use as you wish.

It's altogether too easy to make disparaging remarks about the quality of the Taylor opinion, which seems almost to have been written more to poke a finger in the President's eye than to please the legal commentariat or even, alas, to impress an appellate panel, although I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.

Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. I also would have been less ready to find standing on the part of the complainants without much more meticulous analysis than Judge Taylor undertook; I would obviously have grappled with the "special needs" exception if I had reached the Fourth Amendment claim; and I can't imagine not addressing the 2002 decision by the FSIA Court of Review. But as legal academics many of us -- and I don't exclude myself from this observation -- sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.

When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But It's those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Even at the level of legal analysis, it's a bit much to treat Judge Taylor as though she idiotically and gratuitously injected the Constitution into her argument when all she needed to do was rely on the FISA. Even the FISA, after all, is subject to constitutional restictions to the degree that a particular presidential maneuver that it purports to forbid is arguably immune under Article II from the particular exercise of Article I power on which the FISA prohibition rests. And although Judge Taylor's opinion doesn't do a good job of explaining just why the administration was wrong in arguing that FISA would be unconstitutional to the degree it has the effect claimed by the critics of the NSA program, it remains the case that no explanation of that conclusion would be possible without undertaking a constitutional rather than entirely statutory dissection of the relevant materials.

Moreover, it seems to me misguided to say that Judge Taylor's reliance on the chilling effects of the government's eavesdropping program represents poor legal argument simply because it isn't deeply rooted in settled precedent or entails what Jack Balkin described as a "rather innovative" line of argument. Before many of us grew accustomed to the Rehnquist Court's unfortunately dismissive reaction to "chilling effect" arguments of the sort that were routine in Justice Brennan's day and that came to seem adventuresome only in an era that could take decisions like Laird v. Tatum more or less for granted, the argument that struck Judge Taylor as compelling would have been regarded as altogether routine.

Finally, it's something of a cheap shot to chide Judge Taylor for her failure to exploit Justice Stevens' more than mild hint, in his Hamdan v. Rumsfeld opinion, that the administration's reading of the AUMF was too sweeping by a country mile. Of course Hamdan offered a major crutch that Judge Taylor failed to grab. But, by all accounts, she is no fool. My immediate assumption -- an assumption that explains why I praised her opinion and not just her result in my remarks to Charlie Savage of the Boston Globe the other day -- was that Judge Taylor was being rather clever in her seemingly deliberate and rather daring decision to reject the administration's far-fetched construction of the AUMF without relying on the Supreme Court's June 2006 pronouncement on the subject.

Although my good friend Cass Sunstein, whom I admire in more ways than I can count, seems to remain of the view that the administration's invocation of the AUMF was at least a plausible way around the prohibitive effect of the FISA prior to the rejection of that reading in Hamdan, I was among those -- including some of those whom you quote as critical of the Taylor opinion -- who had no doubt whatsoever, long before Hamdan was handed down a couple of months ago, that the administration was reading the AUMF for vastly more than it could conceivably have been worth and, in the bargain, was twisting Justice O'Connor's words and the Court's conclusions from Hamdi v. Rumsfeld in treating that earlier decision's analysis of the AUMF as support for the far-reaching use the administration sought to make of it. I took the view, in talking with the Boston Globe, that the principal effect of Judge Taylor's admittedly risky decision to go after the government's reading of the AUMF without relying on Hamdan was to make the point, none too subtly, that the administration had been not just skating on thin legal ice all along but had been skating well below the surface of the water, and that it didn't take any hint from Justice Stevens this June to establish the point.

That's a matter of more than academic interest, for it bears on the bedrock question whether the President and his advisors were merely failing to anticipate an invariably controversial recent ruling of a closely divided Supreme Court or were instead, as I believe, betraying a contemptuous disregard for law and a willingness to grasp at legal straws in order to mask a naked assertion of boundless power.

 

[bsnyder]

double post

 

[LuvDuke]

Makes a nice talking point for those suffering from Bush Derangement Syndrome, I know, but it has no practical application in the real world that the rest of us live in.

Yeah, whatever, Bet. You're blowing so much smoke it's coming out of your eyeballs. That "talking point" happens to be the law.

The law made provisions for a 72-hour window of opportunity to get a warrant from a FISA court that had been set up specifically for that purpose and in the 28-yr history of FISA, only ONE warrant had ever been turned down. That's the practical application in the real world.

The Bush administration didn't get a warrant because they didn't want to and then they created this convoluted fantasy world of Constitutional super war powers and powers conveyed by the AUMF.

And please, Bet, get real. You'd be passing a gold brick if this was a Democrat.

 

[bsnyder]

Professor Laurence Tribe has responded to the silly article in the NYT on the ruling. http://balkin.blogspot.com/2006/08/bloggerati-response-to-judge-taylors.html

Sailed right past my last post, I see. I haven't done this in a long time and I forgot what a total riot you are, Kyle.

But, as long as you are posting Tribe's embarassment, I'll take the opportunity to post my favorite smack down (so far...) from a legal blogger:

Blogging lawprofs, go back to your law review articles.
Over at Balkinization, lawprof Larry Tribe writes a long-winded post defending Judge Anna Diggs Taylor's opinion in ACLU v. NSA. He thinks we bloggers have gone too far criticizing her, when there's so much reason to criticize the administration.

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues.

Yeah, please tuck your criticisms away where no one will see them.

But It's [sic] those with constitutional blood on their hands who deserve to be chastized [sic] most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Well, now I feel like criticizing Tribe's rhetoric. Could you put that in plain English? Are you saying the law professors who dared to engage with the opinion and scrutinize it on their blogs were mainly showing off and trying to further our careers? Are you saying that ordinary people who don't read law reviews and who are trying to understand current events shouldn't have the benefit of law professors helping them understand an important new case, that we're distracting them from their proper job of despising the President? You want people to concentrate on the judge's conclusion and not to question the judge's reasoning and analysis? To do that is to bow to authority. If that's what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he's doing. Why shouldn't people accept that "important conclusion" and leave it for the experts to hash out the details in law review articles?

http://althouse.blogspot.com/2006/08/blogging-lawprofs-go-back-to-your-law.html#comments

And, I was wondering if you still stand by your first impression of the opinion (from page 2 of this thread), that is "well written"? So far, I'm still looking for anyone, besides the NY Times editorial page, that agrees with you.

Edited to try to fix the quotes!

 

[bsnyder]

Yeah, whatever, Bet. You're blowing so much smoke it's coming out of your eyeballs. That "talking point" happens to be the law.

The law made provisions for a 72-hour window of opportunity to get a warrant from a FISA court that had been set up specifically for that purpose and in the 28-yr history of FISA, only ONE warrant had ever been turned down. That's the practical application in the real world.

And you know that one warrant has been turned down how? Let's face it. You're arguing "facts" that you have no idea are true and don't have any way to confirm. None of us do. But we can use a little common sense to cut through the blowing smoke.

And please, Bet, get real. You'd be passing a gold brick if this was a Democrat.

No, actually, I wouldn't, and I hope that whoever becomes President in 2008, whether R or D or Green or whatever will continue to listen to calls from terrorists overseas when they call the U.S. In fact, I'd consider it an impeachable offense if they don't.

Thankfully, I know that for all the smoke blowing that the ranking Democrats in Congress have done on this issue, they aren't about to pull the plug on this program. Why? Because unlike you and I, they've been briefed on this from the beginning, they know the program works, that proper safeguards are in place, and that it's vital to our safety. Of course, they'll use the situation for political gain for as long as possible, and then we won't hear another word about it....