Posted on Thu, Aug. 17, 2006
Judge strikes down the warrantless eavesdropping program

By Ron Hutcheson and Margaret Talev

McClatchy Newspapers

(MCT)

WASHINGTON - In a scathing rebuke, a federal judge ruled Thursday that the Bush administration's warrantless eavesdropping program is unconstitutional and should be shut down, but legal scholars said the administration has a good chance of reversing the decision on appeal.

"There are no hereditary kings in America and no power not created by the Constitution," U.S. District Judge Anna Diggs Taylor of Detroit said in a 43-page opinion blasting the program.

Taylor said that the program, which President Bush secretly approved after the terrorist attacks of Sept. 11, 2001, violated the rights of free speech and privacy and went far beyond the president's authority. Administration officials say the surveillance program targets telephone calls and e-mails between the United States and suspected terrorists overseas.

The Justice Department immediately appealed the ruling, and all the parties agreed that the Bush administration is free to keep eavesdropping without warrants pending the Sept. 7 appeals-court hearing.

While the ruling was a clear victory for Bush's critics, it didn't end the legal battle over the government's secret eavesdropping. Legal scholars said the administration had a good chance of winning its appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati, which handles cases from Michigan, Kentucky, Ohio and Tennessee.

"This isn't the definitive word," said Bruce Fein, a Washington lawyer who agreed with Taylor's conclusions. "This is going to the 6th Circuit. If the 6th Circuit goes against the government, it's going to the Supreme Court."

Carl Tobias, a constitutional scholar at the University of Richmond's law school, said the 6th Circuit tended to be sympathetic to the government's national-security concerns.

"There are more judges on that court who come down on the national security end of the spectrum than the civil liberties end," he said. "The majority probably would reverse this decision."

Administration officials suggested that the ruling, if it stands, will increase the risk of a terrorist attack.

"We couldn't disagree more with this opinion," White House spokesman Tony Snow said in a statement. "The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government."

Snow noted that the ruling came a week after the alleged aircraft-bombing plot in London offered "a stark reminder that terrorists are still plotting to attack our country."

Government lawyers called the surveillance program "a critical tool" in the war on terrorism and "an early warning system" against attacks.

"We're going to do everything that we can in the courts to allow this program to continue," Attorney General Alberto Gonzales said.

The American Civil Liberties Union, which filed the Detroit lawsuit on behalf of plaintiffs, called the decision "a landmark victory against the abuse of power that has become the hallmark of the Bush administration."

The ACLU sued on behalf of a group of journalists, lawyers and researchers, including several from Detroit, who suspected that government eavesdroppers had targeted their international calls.

Bush's decision to establish the warrantless surveillance program lets government agents bypass the Foreign Intelligence Surveillance Act, which requires court approval for domestic surveillance.

The law, enacted in 1978 in response to illegal wiretaps during the Nixon administration, includes emergency provisions that let investigators seek court approval up to 72 hours after the surveillance starts. Bush and his advisers say the law is too cumbersome when dealing with possible terrorist attacks.

The president contends that his constitutional power as commander in chief and the congressional resolution authorizing the use of military force against terrorists empowered him to establish the eavesdropping program. The New York Times revealed the secret surveillance late last year.

Taylor, a liberal Democrat whom President Jimmy Carter appointed to the court, concluded that Bush had overstepped his authority. She also rejected the government's argument that the case should be tossed out to avoid the risk of exposing government secrets.

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," she wrote.

The ruling complicates efforts in Congress to come up with a compromise that could satisfy both sides in the dispute. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., is pushing legislation that's intended to put the surveillance program under the jurisdiction of a special court established by the Foreign Intelligence Surveillance Act.

Democrats blocked a vote on Specter's bill before the August recess, saying it wouldn't guarantee sufficient court oversight. They appeared unlikely to back down now that a federal judge essentially has endorsed their views.

"We can and should wiretap terrorists under the current FISA law," Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, said after Taylor's ruling. "The problem has been the Bush-Cheney administration's insistence on doing it illegally, without checks and balances to prevent abusing the rights of Americans."

http://www.mercurynews.com/mld/mercurynews/news/politics/15298289.htm

There are plenty of judges around willing to issue warrants, all that needs to happen is they be asked.

that the 6th court will overturn this finding and if that fails, SCOTUS will certainly do the honor of making Bush the new King George.

Bravo!

The Bush administration is well outside the bounds of the constitution by not getting warrants.

They can easily get a warrant, they can even get one after the fact.

The issue here is not warrants causing any problem, it's Bush wants to ignore the constitution & put himself above the law.

Unfortunately, if the entire opinion comes off as one judge's rant against the administration, that's not going to help when it gets to the 6th Circuit.

that the 6th court will overturn this finding and if that fails....To bring this sort of suit, the ACLU must be working on behalf of a party that has been harmed. That's the procedure, that's the law. You can't just file a suit because a law bothers you.
This judge waived that. Any of you constitutionalists offended?

If this doesn't get overturned, these courts are indeed biased.

This is a constitutional matter and people have been harmed ... they're called american citzens.

Fret not ... the chief judge on the 6th court is Danny Boggs - a Reagan appointment.

Why would us Constitutionalists be offended by this ruling?

I personally think it's a good ruling. I am not offended at all, unless I am not understanding your question correctly.

The Gov't can wiretap suspected terrorist, etc all they want as long as they have wiretaps and they go through the correct procedures.

In my other forum most of the people there feel it is okay for the President to undermine (right word.. ??) the Constitution and the FISA court, etc because we're "fighting terrorism." They basically feel as long as they are doing somethign in the name of fighting terrorism it's basically okay for them to intrude on our privacy.

I don't agree.

Why would us Constitutionalists be offended by this ruling?
I personally think it's a good ruling. I am not offended at all, unless I am not understanding your question correctly.This has nothing to do with how you feel about this ruling. The structure of this suit is flawed and, under normal circumstances, would not have been heard.
Despite what Dop said, no one can show they have been harmed by this procedure, therefore no one has "standing" to bring this suit.

From the article: "The ACLU sued on behalf of a group of journalists, lawyers and researchers, including several from Detroit, who suspected that government eavesdroppers had targeted their international calls."
Not good enough.
If you support the law, support it consistently.

If you work the phone between midnight and four in the morning at any police precinct, you get calls from people who suspect they are being monitored by the FBI or President Bush or the CIA.

Should they be allowed to file similar suits?

This is not about wiretapping. It's about staying inside the boudaries of lawful wiretapping as passed by congress and guaranteed by the constitution.

Bush, in his oath of office, swore to uphold the constitution. He has broken that oath.

It's not about either one.
It's about a judge allowing a legal procedure to be subverted.

How and since when is circumventing the constitution a legal procedure?

Despite what Dop said, no one can show they have been harmed by this procedure, therefore no one has "standing" to bring this suit.The ACLU successfully argued that the NSA program disrupted the plaintiff's ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy. Amusingly enough, public knowledge of the program is what gave them their standing.

Based on the fact that they suspected they were affected by this wiretapping. Under the watchful eye of this particular judge, that was enough.

"Successfully" argued? They "successfully" chose the right court in which to argue their case.

Based on the fact that they suspected they were affected by this wiretapping.The disruption of the plaintiff's legally protected activities wasn't suspected. It was real enough for the case to gain standing in the opinion of the judge.

Make that this judge.

I don't know how this will turn out, but under normal circumstances, this wouldn't have been heard until someone who was in fact harmed came forward.
Like I said before, a lot of people truly believe they are being spied on.
They usually get help from their families or a facility.
But if they don't, they're not automatic plaintiffs.

Where's Lionel?

Are you asking me that?

Are you asking me that?
No, it is a beckoning for Lionel to enter the discussion because he is the resident lawyer.

Are you asking me that?Yes, Brooks. I expect you to have full knowledge of Lionel's whereabouts at all times. :)

Seriously, I'd like to know what he thinks. It seems to me that if a plaintiff can demonstrate that people are afraid to communicate because the NSA is running a surveillance program without court supervision they have in fact shown that their ability talk with sources, locate witnesses, conduct scholarship, and engage in advocacy has been disrupted. That is a real harm, not a suspected or imaginary one. I wonder if Lionel agrees with this or, if not, why not. Also, could the Court of Appeals dismiss the case on these grounds alone or do they have to judge the case on it's merits now that the 'foot is in the door' so to speak?

I'm not a lawyer and I think you have a better grasp of the law than I do so I'm asking for help.

Is that a crime?

Yes, Brooks. I expect you to have full knowledge of Lionel's whereabouts at all times. :)

He does, but I asked him to keep my whereabouts quiet. Thanks Brooks!

Seriously, I'd like to know what he thinks. It seems to me that if a plaintiff can demonstrate that people are afraid to communicate because the NSA is running a surveillance program without court supervision they have in fact shown that their ability talk with sources, locate witnesses, conduct scholarship, and engage in advocacy has been disrupted. That is a real harm, not a suspected or imaginary one. I wonder if Lionel agrees with this or, if not, why not.

Personally, I'd like to think that's good enough. Legally, I bet the 6th Circuit doesn't. I don't "they might have spied on me" is going to be enough in most courts. I think they happened to get assigned to a pretty sympathetic judge.


Also, could the Court of Appeals dismiss the case on these grounds alone or do they have to judge the case on it's merits now that the 'foot is in the door' so to speak?

The circuit court can toss the case based on the standing of the plaintiffs alone and don't have to address the other issues. It's not completely unknown for the court of appeals to then go on and comment on the merits just to be obnoxious. :)


I'm not a lawyer and I think you have a better grasp of the law than I do so I'm asking for help.

Is that a crime?

Only in Idaho and Mississippi.

Yes, Brooks. I expect you to have full knowledge of Lionel's whereabouts at all times. :)
Is that a crime?Whoa, sorry. There's a local radio personality, who is also a lawyer, called Lionel. I thought you were making some reference to him. Really, I wasn't trying to be snotty.
Unfortunately I've built up an expectation of snide when dealing with you and I'm sorry about that.

Unfortunately I've built up an expectation of snide when dealing with you and I'm sorry about that.Me? Snide??

Thanks for the compliment, but I'll never be your equal in that department.

It seems to me that the government could have challenged the standing of the plaintiffs in this case. To do so, they would have had to state under oath that the plaintiffs had not had any phone calls monitored. That would have opened up the possibility of perjury charges if that proved to be untrue. That they declined to do so, says to me that one or more of the plaintiffs may actually have had conversations intercepted.

Is there any procedure by which a law or action could be challenged without a specific plaintiff? I would guess not, though such a procedure would be useful in a case like this.

It seems to me that the government could have challenged the standing of the plaintiffs in this case. To do so, they would have had to state under oath that the plaintiffs had not had any phone calls monitored. That would have opened up the possibility of perjury charges if that proved to be untrue. That they declined to do so, says to me that one or more of the plaintiffs may actually have had conversations intercepted.

Nice dream Imagineer but Team Bush doesn't do the oath stuff.

Second, to pull off such a maneuver (plaintiffs did not have calls monitored), they would have to open their books to the courts and that isn't going to happen either.

But your point is taken.