Righties: The Constitution Supports Terrorism!

Bush Administration, The Constitution

Sarah Karash, Associated Press:

A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion. …

… The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs.

Glenn Greenwald discusses
the opinion, so see Glenn for intelligent analysis and background (scroll down to updates). Glenn also predicts news media will spend more time on JonBenet Ramsey’s alleged killer.

This is great news, but I wonder if and how it will be implemented. The Bush Administration is likely to ignore the decision and secretly continue the program. If Congress can’t constraint the Bushies, I don’t know why they’d obey a court.

Anyway, as Dave Johnson points out,

Keep in mind that all this means is they have to start getting warrants — follow the law and Constitution just like how we have always done it in this country.

Dave links to rightie blog Ace of Spades; the comments are priceless.

Not only is she a Carter appointee, she is Black. Want to bet she was admitted to Yale on a Minority set a side? Maybe she’s related to Conners, the other Black nut from Mo Town.

I liked this one, too:

I think all of us should send this judge thank you cards. She may have just handed the GOP a 2006 sweep in both houses. She should be the Willie Horton of 2006.

Second, as we have all discussed with the ‘tards over NSA and other WoT issues, the Supreme Court (albeit in dicta) has indicated that foreign survellance is completely within the president’s power as commander in chief, so this ruling has no real chance. In fact, I wonder if Roberts will scoop up the appeal to make this a principal a firmly decided principal.

Right, but foreign surveillance of non-US persons is not what the suit was about. (This crew is brilliant, aren’t they?) The concern is that the Administration is not limiting itself to non-U.S. persons, and with no meaningful oversight, who can know what they’re up to? And of course there’s the picky little matter of following the law. Here’s an explanation of what the law says, courtesy of Media Matters.

FISA contains provisions that limit … warrantless surveillance to communications “exclusively between foreign powers.” Those provisions do not apply to Bush’s conduct, as he authorized domestic surveillance of communications between persons inside the United States and parties outside the country. FISA specifically states that the president may authorize electronic surveillance without a court order only if there is “no substantial likelihood” that the communications of “a United States person” will be acquired.

FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering “foreign intelligence information” for no more than 15 days “following a declaration of war by the Congress.” This provision does not permit Bush’s conduct either, as he acknowledged reauthorizing the program more than 30 times since 2001….

…The FISA (Title 50, Chapter 36 of the United States Code) provision (Title 50, Section 1802 — or “50 USC 1802”) … allows the president to authorize surveillance without a court order if the attorney general certifies that the surveillance is “solely directed” at “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers;” or, “the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power.” The law also states that warrantless surveillance is permissible only if the attorney general certifies that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

A second section within FISA, titled “Authorization during time of war” (50 USC 1811), states that the president may authorize warrantless surveillance for a period of no more than 15 days after Congress declares war.

Same commenter, continued:

Third, isn’t it time judicial review got smacked down? Can’t we get congress to pull a Justice Marshall over the Supreme Court and declare that Congress has the power to overrule supreme court decisions? Oh wait, no, Congress was deballed when DeLay left.

Let’s get this straight: A federal judge rules that the executive branch is violating a law passed by Congress, and this guy wants Congress to overrule the judge so that the president can continue to ignore Congress.

Brilliant, I say. You can’t make this shit up.

As Scott Lemieux says, the Right thinks that upholding the Constitution makes one pro-terrorist.

Kagro X at The Next Hurrah:

Taylor rejects the assertion that the defendants cannot carry on their case without the exposure of state secrets. Why? This part, in my opinion, is the gem we’ve all been waiting for:

    The Bush administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense of the TSP. Defendants have presented support for the argument that “it … is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies.” [Footnotes omitted.]

In other words, Taylor says that all the claims about what sensitive information may or may not be revealed in a trial is quite beside the point of whether or not the program is legal and constitutional. The government has never once made the argument that the argument for the program’s legality is itself a matter of national security. Far from it. They have claimed that it was an open and shut case.

Taylor says: Fine. Make the case.

Here’s another good bit:

One other gem worth highlighting, though, was Taylor’s address of the Fourth Amendment’s applicability:

    In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probably cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

    All of the above Congressional concessions to Executive need and to the exegencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

    The President of the United States is himself created by that same Constitution.


Ouch, indeed. Well, let’s hope the decision stands …

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  1. Preston  •  Aug 17, 2006 @8:00 pm

    To quote a correspondent on CNN Situation Room’s Cafferty File:

    Jail to the Chief!

  2. Swami  •  Aug 17, 2006 @10:53 pm

    Damned activist judges!…No respect for our Commander-in Chief. I guess it’s time to start waving the white flags.

    Well, let’s hope the decision stands

    It’s sad when we’re at the point where we have to hope that the Constitution will be upheld. I wonder if Bush is getting the message that his nonsense( Guantanamo, torture,Padilla and illegal wiretapping) isn’t going to fly. Little by little the haughty and exalted war time President is getting whittled down to the incompetent buffoon that he always was. I’m praying that Bush’s presidency takes a major belly flop…because he deserves it for being so arrogant.

  3. sisyphus  •  Aug 18, 2006 @12:13 am

    Would someone please tell me why it is so difficult to get a warrant

  4. John Palcewski  •  Aug 18, 2006 @12:31 am

    The ruling is but a glimmer of sunshine, soon to be obscured by the Swiftboating of Anna Diggs Taylor because she is a Carter-appointed “Liberal.” That’s all the GOP needs to say. Case closed. We all know where SHE is coming from.

    Karl Rove will construct a narrative that proves the ruling will seriously undermine the war on terra, and darkly suggest that such judicial “activism” is not merely dangerous, but treasonous.

    Hey, this worked before! It surely will work again.

    Anyway, for the moment Bush or his manipulators may safely ignore the ruling because they’ve got lawyers on the case, and have already sent out little-smiling-boy Gonzales to smile and smile and be a villian with his spin and bullshit.

    And don’t worry, the full awesome weight of the Government of the United States will be brought to bear on the appeal. Hint. The Appealate court is–guess what?–you guessed it. CONSERVATAIVE.

    Case fucking closed.

    Now where were we? Ah, yes. If we don’t stay the course in Iraq, why, it will become a breeding ground for terrists. You don’t want that, do you?

    I didn’t think so.

  5. Donna  •  Aug 18, 2006 @5:27 am

    Jimmy Carter [who appointed Anna Diggs Taylor] recently gave an interview to Spiegel, and in one of Carter’s answers to a question, he did a great job describing the Bushie fundamentalism. Carter’s words are worth reading.

    Here’s the specific excerpt of Carter speaking about fundamentalism:
    “The fundamentalists believe they have a unique relationship with God, and that they and their ideas are God’s ideas and God’s premises on the particular issue. Therefore, by definition since they are speaking for God, anyone who disagrees with them is inherently wrong. And the next step is: Those who disagree with them are inherently inferior, and in extreme cases – – as in the case with some fundamentalists around the world – – it makes your opponents sub-humans, so that their lives are not significant. Another thing is that a fundamentalist can’t bring himself or herself to negotiate with people who disagree with them because the negotiating process itself in an indication of implied equality. And so this administration, for instance, has a policy of just refusing to talk with someone who is in strong disagreement with them – – which is also a radical departure from past history – – So these are the kinds of things that cause me concern. And of course, fundamentalists don’t believe they can make mistakes, so when we permit the torture of prisoners in Guantanamo or Abu Ghraib, it’s just impossible for a fundamentalist to admit that a mistake was made.”

    I think Carter’s words not only tell us how the Bushie base regards foreigners, but also how and why the Bushie base believes it is ok to trash our Constitution, and then not even want to negotiate a change that would make such wire-tapping ‘legal’–all that negotiation undercuts their a priori notion of ‘rightness with God’.

  6. Lynne  •  Aug 18, 2006 @6:07 am

    Donna, I’d like to read more of the Carter you quoted. Where do I find that?

  7. erinyes  •  Aug 18, 2006 @7:39 am

    “Why is it so difficult to get a warrant”
    ‘Cause “we don’t need no stinkin’ warrants”
    Criminals make up their own rules, bada bing, bada boom….

  8. Swami  •  Aug 18, 2006 @9:17 am

    Nice comment, Donna. Carter got it right..and what’s more is when the bottom falls outs on Bush’s escapades, we are the ones who will be blamed for his failures because of our infidelity and lack of faith to the cause of fighting evil. The courts are tying Bush’s hands and preventing him from protecting us. What’s a Commander-in-Chief to do?

  9. Bonnie  •  Aug 18, 2006 @10:33 am

    Swami, we are fighting evil–the evil of the fundamentalists and the evil of the Bush Administration and the evil of the Republicans in Congress.

  10. Summerfield  •  Aug 18, 2006 @11:16 am

    The rightie state of mind is, uh, scary, to say the very least. Public discourse needs to be purified of this dangerous drek, purified by a nice brightly burning blue-hot fire. Events in Connecticut are providing the fuel. Is there a Dem with fortitude enough to combust it, or, will it be a voice crying out in the wilderness?

  11. grayslady  •  Aug 18, 2006 @11:45 am

    “Minority set-aside” pre-1957? You have to be kidding! Those were still the days of “separate but equal” in the South. Judge Taylor attended Northfield Academy, Barnard College and Yale Law School. She is clearly a very bright woman with an enviable academic background. Bravo, Judge Taylor!

  12. the bewilderness  •  Aug 18, 2006 @2:48 pm

    There is a certain pleasure to be found in a decision that requires the submit or die authoritarians to obey the law. I do wonder who they are among our citizenry that think the people whose position is supported by our willingness to obey the law, need not do so. The magic of authoritarianism, I suppose.

  13. A Canadian Reader  •  Aug 18, 2006 @4:07 pm

    Here’s the Spiegel site URL: http://service.spiegel.de/cache/international/spiegel/0,1518,431793,00.html

    Thanks for pointing us in that direction, Donna.

  14. A Canadian Reader  •  Aug 18, 2006 @4:16 pm

    On follow-up on the Carter interview: this is a must-read!

  15. maha  •  Aug 18, 2006 @8:12 pm

    You guys will like this — rightie blogger Sister Toldjah linked to the same Carter interview in Spiegel, and coments:

    There’s actually a third thing we can count on happening in our lifetimes: Jimmy Carter effectively siding with terrorists in the Middle East over Israel and the United States.

    The first two things we can count on are death and taxes. There IS a third thing we can count on, which is righties are idiots.

  16. Lynne  •  Aug 18, 2006 @9:51 pm

    Sistah Toldjah’s comments seem rather controlled compared to some of the rightie ravings I seen on the Carter interview. (shivers)

  17. maha  •  Aug 18, 2006 @9:56 pm

    Lynne — I hear them say Carter was the worst president of all time, which makes me wonder what they think he did.

  18. Donna  •  Aug 19, 2006 @12:02 am

    Thanks to you, Canadian Reader, for doing the link to the Spiegel interview.. I’ve been up to Chicago to see the Tut exhibit……..an all day trip. In my original post, I did try to do a link, but for some reason, there was a snafu on loading the comment, and I wondered if I had done something wrong….like this [new to me computer] was trying to download the whole shebang interview….so I cancelled the link try.

    Carter’s words helped me a lot to understand so much of the rightie position of never directly dealing with Bush’s illegalities. And, I do have a son who is a fundie, and though I love him a lot, it is very frustrating to try to engage with him about straight-forward matters……so Carter’s words helped me on that, too.

  19. No More Mr. Nice Guy!  •  Aug 19, 2006 @10:25 pm

    Would someone please tell me why it is so difficult to get a warrant

    It’s the easiest thing in the world to get a warrant, but it leaves an annoying paper trail. The Bushites don’t want a record of what they’re doing.