Thursday, August 17, 2006

“NSA eavesdropping program ruled unconstitutional”

Since my lefties here seem to be chomping at the bit to comment on this, here is your post. First let's get the "activist judge" thing out of the way. Because her background does speak volumes:

Judge Diggs Taylor's biography says she was married to Michigan Democratic Representative (1955-1980) Charles C Diggs, Jr. (divorced 1971) and S Martin Taylor (active in both the Coleman Young and Jimmy Carter campaigns) and was named to a Michigan federal court in 1979. She was the first black woman appointed to a federal judgeship in Michigan and the first black black woman to be named chief federal judge in the Eastern District of Michigan, where it says she used her positions to advance civil rights throughout the United States.

Had to add this from Powerline:(emphasis mine)

"One of the serious weaknesses of our federal judicial system is that in many cases, plaintiffs can forum-shop for a favorable district or judge. Here, the ACLU, the plaintiff in the case, could have brought the case anywhere in the United States. The ACLU naturally avoided the circuits that had already upheld warrantless surveillance as an executive power; the Sixth Circuit, which encompasses Michigan, has not ruled on the issue, to my knowledge. The ACLU was able to get its case before Judge Taylor, a 1979 Jimmy Carter appointee who was described by the Detroit Free Press as "a liberal with Democratic roots."

Powerline also says this:

"Consistent with unanimous precedent in the Federal Courts of Appeal, I would expect the 6th Circuit to reverse Judge Taylor's ruling and uphold the NSA program. That's a year or more off, however, and in the meantime the ACLU and the Democrats got the headlines they wanted from one of their own."

See the focus of her opinion here.

Jeff at PW (from whom I gathered the above info) says this (with update):

"If this program, from what is known publicly about it, can be said to violate the Fourth Amendment, there are certainly a number of other security procedures that should be held unconstitutional under the Fourth Amendment. [update: see Volokh here on this point]

Which is one of the reasons why I think this ruling will be overturned on appeal.

Even still, it's amazing that we've reached the nuance point where only by revealing secrets can we show the the secrets in question should not be revealed, lest they damage programs meant to protect us from attacks, which only work while details of how they work remain secret.

Perhaps we can just tie stones to the NSA program, put it in a lake, and see if it floats. If it does, it is clearly unconstitutional and should be hanged. If it drowns from the weight of its own revealed legality, everyone will know for certain that it wasn't, in fact, unconstitutional. Which, helluva lot of good that does us, sure.

But it's the thought that counts. "
**** update 2: Eugene Volokh:

[...] I think (as Orin’s post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn’t carve out an exception under the AUMF, then the program is indeed illegal (since I don’t think the President’s inherent power argument much works here, even as to violations of a statute). If FISA doesn’t apply, though, then the program is permissible, because there’s no First or Fourth Amendment violation here.

See also, “NSA Eavesdropping Opinion and the Fourth Amendment,” and “NSA Eavesropping Opinion and the First Amendment”

I'm not lawyer (which is abundantly clear here) I'll let those who know more than I do, defend or not defend this program, but this part bothers me a bit:

From CNN: "A federal judge ruled Thursday that the governmentÂ’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it."

So.... if there is an immediate halt to it and let's say... down the road a bit, we are attacked and it is revealed that it was because we couldn't follow up on information because of this, won't all hell break loose? And who would pay for all that hell breaking loose? That would be the Democrats, who are dancing the snoopy dance right now, and where would they pay? At the voting booth.

Like I always say, be careful what you ask for, you just might get it.