Judge Rules NSA Wiretapping Unconstitutional

strredwolf writes "CNN is reporting that NSA's warrantless wiretapping program has been ruled unconstitutional. This is the ACLU lawsuit on behalf of journalists, scholars, and lawyers. From the article: "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.""

Re:Trust us! We're the government!

[megaditto]

Actually, you are thinking about the wrong program.

The Federal Judge has ordered NSA to stop wiretapping international calls that the Government says targets suspected al qaeda members.

The one you are thinking about (a much broader domestic wiretapping) was recently dismissed [slashdot.org]. It was also filed by the ACLU, hence the confusion.

While the decision may be a good news for privacy advocates, it is certain that the Government is likely to appeal Judge Taylor's decision.

I would argue that of the three known warrantless data collection programs, the one targeting international calls has the least privacy impact and the most potential to garner actionable intelligence and protect the American public, so it may be unfortunate that this is the one ordered stopped, while the other two are allowed to continue.

We are not out of the woods yet

[lawpoop]

Folks, it isn't over until it's over. The ruling can still be appealed. Bush nominated judge Samuel Alito to the supreme court. Alito subscribes to the notion of the unitary executive [wikipedia.org], which basically means that anything the president does is legal, by definition. Alito may be sympathetic to the administration's view on this. He is just one of nine judges, but I point him out to show you who Bush is appointing.

Remember the Total Information Awareness project, proposed by Admiral Poindexter, shortly after 9/11? It was to be a gigantic database of all electronic information -- the complete, ongoing electronic record of every US citizen. Of course, because of public outcry, the project was defunded. However, the project has simply been broken apart and pursued. Wikipedia [wikipedia.org] says "An unknown number of TIA's functions have been merged under the codename "Topsail".

We don't know the full story, yet we are being given some very clear, bright red flags. Why does the government need to keep track of every single citizen?

Re:The most important question

[Tackhead]

> Does it mean that any arrests and prosecutions made as a result of information gained from these wire-tappings are deemed unconstitutional and their respective cases dropped and verdicts overturned?

Oldthinkers unbellyfeel AmSoc!

Or to phrase in in Oldspeak: Your question is moot -- when one starts from the principle that one does not need a warrant, it logically follows that one does not arrest, nor does one prosecute, because there is no case to be brought before any court, and no verdict need be overturned, because no verdict need ever be handed down.

In Newspeak: Poster oldthinker, unbellyfeel Amsoc. Refs unwords "arrest" "prosecute" "constitution" "case", "verdict". Assign oldthinker MiniLuv reference subgroups educamp, joycamp.

Re:Correct, but...

[paranode]

Here's one:
http://www.washtimes.com/national/20051222-122610- 7772r.htm [washtimes.com]

Re:Trust us! We're the government!

[internic]

This is not true. Where do you pull a figure like that from? Your ass?

Most people in the United States support the wiretapping program.

And yet, you say it's false without presenting any evidence of your own (or perhaps obtaining it from the same region as the GP). I'm not aware of a poll that asks a question like, "Do you trust the current administration?" I think it would be a poor question, because it's too vague to be meaningful. Most of the time, we'd trust people so far in a certain situation; trust is not a binary issue. For example, I trust Bush not to intentionally bring down the USA, but I don't trust him to make accurate statements about intelligence. There are some things we can say, however. We can say that according to polls most people disapprove of the overall job that Bush is doing (see almost any recent presidential approval rating poll), and we can say they're almost evenly split on the question of whether warrentless wiretaps are ok (see, for example, this Newsweek poll [msn.com]). Most of the polls I've seen, but not all, show a slight majority for the opinion that these searches are a bad thing. Perhaps if you're going to attack people for a lack of facts, you should at least try to offer some to support your own claims.

Re:Congratulations!

[elrous0]

It will be overturned. Cheney and his cronies would never have let this judge live to make this ruling (or not found a way to intimidate the plantiffs into dropping it) if they weren't confident of that. If it even makes it to the Supreme Court, you can bet Roberts and Alito will do exactly what the administration appointed them to do: give the president absolute, unchecked power.

-Eric

Re:So What?

[Rotten168]

The only recourse to "arrest" the president is impeachment.

Re:Trust us! We're the government!

[jfengel]

I was interested in your question, so I did some research. The grandparent poster is overstating the case, but there were polls back in December/January that kind of back him up.

The NY Times [nytimes.com] says, "The poll found that 53 percent of Americans approved of Mr. Bush's authorizing eavesdropping without prior court approval 'in order to reduce the threat of terrorism.'"

The CS Monitor [csmonitor.com] (reporting on a Zogby poll) says, "Nearly half of likely voters, 49 percent, say Bush has the constitutional powers to approve such a plan".

I don't have more recent figures. The President's popularity is roughly the same now that it was then, though it had risen a bit for a while in the meantime.

Re:It goes back...

[MarkusQ]

They have been doing this kind of thing since the Carter administration, unfortunately. The famous spy Aldrich Ames was captured during the Clinton administration by a warrantless search of his property using the same 'precedents'.

This ethical relativism talking point doesn't stand up to scrutiny. The specific searches that Clinton ordered were legal at the time he ordered them [mediamatters.org], while, as judge's ruling described in TFA reaffirms, the ones Bush ordered were illegal. Further, even at the time Clinton ordered his searches, he could not have done what Bush has done without breaking the law. Guess what? He stuck to what was legal.

--MarkusQ

Quotes from the decision

[Animats]

The actual decision by the court [cnn.net] is worth reading. Some quotes:

• "In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained."
• "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."
• "For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law."
• "The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution. As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967): Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties ....Id. at 264.
  IT IS SO ORDERED.
  ANNA DIGGS TAYLOR
  UNITED STATES DISTRICT JUDGE"

Re:Trust us! We're the government!

[buswolley]

Look. The White House knows that all their illegal activity may get them in trouble if the house and senate goes to the democrats. This is why they are pro-actively insulating themselves with legal manipulations. For example, reports http://www.mercurynews.com/mld/mercurynews/news/sp ecial_packages/iraq/15246142.htm [mercurynews.com] :

The Bush administration drafted amendments to the War Crimes Act that would retroactively protect policymakers from possible criminal charges for authorizing any humiliating and degrading treatment of detainees, according to lawyers who have seen the proposal.

They know the shit can hit the fan for them. Actually, it gives me hope: The executive branch is still afraid of something..

There is hope.

Re:Trust us! We're the government!

[IAmTheDave]

Here [msn.com] are some round figures. It's absolutely amazing to me that so many people actually support warrantless taps. That's why this country will eventually decend into some totalitarian government reign - because the people don't really have any will to stop it - rather they accept it.

Still can't get me head 'round that one...

Re:From the conservative bench

[Van Cutter Romney]

You wanted it, so here goes:

1. From the FOX News Website: Is the ACLU Bin Laden's Best Ally? [foxnews.com]

Quote from the same: "If the ACLU ever wants money, it should contact the Al Qaeda fundraisers. No organization in America enables terrorism as much as the ACLU, period. It is putting your life in danger. And that is no exaggeration."

2. From Wikiquote [wikiquote.org]

"I have to pick on the ACLU because they're the most dangerous organization in the United States of America right now. There's by far. There's nobody even close to that. They're, like, second next to Al Qaeda." (2 June 2004)

"Hitler would be a card-carrying ACLU member. So would Stalin. Castro probably is. And so would Mao Zedong." (19 January 2005)

Re:Trust us! We're the government!

[thePowerOfGrayskull]

Nice misinformation. The amendments would not retroactively protect policymakers -- it seeks to protect the people who implement the policy -- i.e., those following orders. Reference: http://www.washingtonpost.com/wp-dyn/content/artic le/2006/08/08/AR2006080801276_pf.html [washingtonpost.com]

Re:*Jaw drops*

[Anonymous Coward]

However, how long will it take before Judge Taylor becomes just another of then "activist" judges?

From the Associated Press (via athe St Louis Post Dispatch) [ap.org]:

Taylor dismissed a separate claim by the ACLU over data-mining of phone records by the NSA. She said not enough had been publicly revealed about that program to support the claim and further litigation could jeopardize state secrets.

That was quick!

[tmassa99]

http://www.cnn.com/ [cnn.com]

The U.S. Department of Justice has announced that it will appeal a federal judge's ruling that the government's warrantless wiretapping program is unconstitutional.

The EFF's domestic case is *ongoing*

[geekotourist]

Today's ruling quoted from Judge Walker's ruling in the EFF lawsuit. The EFF lawsuit is still going strong [slashdot.org] : they filed in January, and Judge Walker ruled against an automatic State Secrets dismissal [eff.org].

Re:Trust us! We're the government!

[buswolley]

If misinformation, then it is misinformation that was published in hundreds of newspapers.

From the WashingtonPost article:

The risk of possible prosecution of officials, CIA officers and former service personnel over alleged rough treatment of prisoners arises because the Bush administration, from January 2002 until June, maintained that the Geneva Conventions' protections did not apply to prisoners captured in Afghanistan.

Do officials actually do the torture, or do they give commands? Ahh.. Furthermore, if a president ordered such an act, wouldn't this amendment absolve him?

From the article I originally posted, the lawyer that leaked this information to the press had this to say about the amendment he helped to draft:

Interrogation practices "follow from policies that were formed at the highest levels of the administration," said a fourth attorney, Scott Horton, who has followed detainee issues closely. "The administration is trying to insulate policymakers under the War Crimes Act."

Re:Trust us! We're the government!

[Alaska Jack]

"The government admitted to tapping all [my emphasis] phone calls that had an end-point in any foreign country."

Huh? Where do you get this? Even the judge's opinion striking down the program had this to say:

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.

- Alaska Jack

Wired.com writeup

[jvj24601]

Slightly more details at http://www.wired.com/news/politics/0,71610-0.html [wired.com]. ..

The wiretapping "violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the Foreign Intelligence Surveillance Act and Title III (of the Constitution)," according to Taylor's injunction.

Re:Trust us! We're the government!

[AndersOSU]

Of course not.

What I'm concerned a bit about is that no one with credibility is saying what the government is doing.

Not only that but I'm sympathize with the argument that the government needs to be able to make some information classified. To trot out a tired old example I wouldn't want the details of the Manhattan project to get out, I wouldn't want the USSR to know where our ballistic subs were (are,) and I don't think that we necessarilly have the right to know exactly whom the CIA is getting information from.

The problem is all those examples place some trust in the government, the less trustworthy a government the more transparancy its citizens should demand. Dragnet domestic wiretapping is an abuse of the trust we've placed in law enforcement, and in theory anyways, it is from our trust that they gain their power. The only way to prevent abuse of trust from being a self defeating mechanism is to steer away from democracy and towards autocracy, which reverses the equation.

That is what really scares me. Now while I don't expect George W, or most of the senators to recognize this, I am fully convinced that there are some puppet masters behind the curtain who are all too aware.

Re:"...the rights to free speech and privacy."

[dlapine]

It's pretty simple- the constitution reserves all rights to the people or States, save those which are carefully delegated to the federal government. Amendment X specifically states this:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The bill of rights is not an exhaustive list- it's just a of rights which the founders thought were worth mentioning specifically. You have a right to privacy by default- at least, a right that the federal government may not abridge.

Re:Ready to modded 'Troll' again...

[Damvan]

Talk about bullshit. Read up on the FISA law before advocating the slaughter of your fellow Americans ("All we can hope for is that the terrorists strike wisely, and blow up buildings filled with liberals").

The NSA can retroactively seek a warrant. The NSA could immediately wiretap that concerned citizens neighbor and seek a warrant after the fact.

Citizen: Hello NSA? I've know without a doubt that neonprimetime is an Al Qaeda terrorist. You should really listen in on his converstations so you know when / where he's going to strike! I heard him say something about hitting the government building tomorrow!

Hmm, maybe I should make that phone call now, you might feel differently about the actions of the administration then.

Re:Ready to modded 'Troll' again...

[jjohnson]

What part of "72 hours to retroactively obtain a warrant" don't you understand?

Re:Trust us! We're the government!

[ignavus]

Only in America is half the nation more concerned about whether the President screwed one person than whether he screwed 300 million people.

Re:Trust us! We're the government!

[surprise_audit]

What I was a bit surprised to read in this ruling was that the judge said the President of the United States had willfully and knowingly broken the Fourth Amendment.

You may be interested in this impeachment story [thenation.com]. The author was on the Committee to impeach President Nixon, so her opinion ought to be worth something...