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August 18, 2006

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» A Fearless and Independent Judiciary: Kudos to Judge Anna Diggs Taylor from Inactivist
Professors Orin Kerr and Ann Athouse, among others, have been quite critical of Judge Anna Diggs Taylor's ruling in ACLU v. NSA, in which Judge Taylor found that the NSA's warrantless surveillance program is unconstitutional. Kerr and Althouse, however, [Read More]

» Who is Judge Taylor, anyway? from tribe.net: uchicagolaw.typepad.com
http://uchicagolaw.typepad.com/faculty/2006/08/aclu_v_nsa_an_i.html Knowin... [Read More]

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Seth Edenbaum

http://observer.guardian.co.uk/politics/story/0,,1854503,00.html"
"Anti-terror police in Britain have made an angry request to their US counterparts asking them to stop leaking details of this month's suspected bomb plot over fears that it could jeopardise the chances of a successful prosecution and hamper the gathering of evidence.
The British security services, MI5 and MI6, are understood to be dismayed that a number of sensitive details surrounding the alleged plot - including an FBI estimate that as many as 50 people were involved - were leaked to the media."
---

http://www.airamerica.com/node/2483"

"Source: U.S., U.K. at odds over timing of arrests
British wanted to continue surveillance on terror suspects, official says"
---

F. Hamilton:
"What will Americans want to do when the planes fall out of the sky or the tunnels get gassed or the trains bombed?"

Bush cut funding for the railway safety. He's done nothing about the ports. And the British followed the laws and American involvement went through FISA.

Mary

"She provided very little settled law to buttress her conclusion and brought in no case law indicating the exact opposite of how she sees the situation."

She cited the Keith case. The Keith case is THE Consitutional heritage of the Sixth Circuit and is the existing Supreme Court precedent on government surveillance, for national security purposes, of US citizens. Some very far fetched tin foil considerations have to come into play for anyone to get around the Keith case and neither Gov, nor the dicta in In Re Sealed Case, have even tried, in print, to do that.

If Keith is still good law, and there doesn't seem to be any LEGAL argument as to why it is not, then Judge Taylor cited to and relied upon the most "all fours" case available, from her own District and Circuit and affirmed resoundingly by the Supreme Court.

"There are many who do not share your view of the NSA wiretaps of international al Qaeda, terrorist calls in the context of Presidential powers to keep America safe in a time of declared war (AUMF and Iraq war approval-two seperate votes of Congress)."

That is nonsense. The issue isn't whether or not the types of non-US citizens who are not covered by the Fourth Amendment, or required under FISA to have a warrant for their surveillance, are affected by the Judge's ruling. They are not.

The issues are a) the President, using US govt agencies on US soil, breaking a US law, with respect to the surveillance in the US of US Person in the US - and b) more specfically to Judge Taylor's ruling, the violation by the PResident of the Consitutional protections of US citizens on US soil spelled out by Keith and Milligan.

"Even the FISA court has acknowledged the presidents powers in this regard."

From all reports, the FISA court chief judges briefed on the program thought it was illegal. If you reference the dicta in In Re Sealed case, you don't really say how it overrules existing Sup. Ct precedent arising out of the Sixth Circuit and undisputed (as to the fact that Keith requires warrants, not reasonble behavior, and no warrants were obtained). If In Re Sealed Case can breeze over existing US SUp Ct precedent in a soundbite political performance in dicta, I think Judge Taylor can be excused for breezing over In re Sealed Case.

Judge Taylor's opinion leaves in place any actions that comply with FISA - which include 1) warrantless (but annual summaries to limited group) wiretaps of foreign persons, powers etc.; and 2) warrantless, for up to 72 hours, but subject to report, wiretaps of US persons on US soil.

Judge Taylor's opinion arguably leaves in place any (if you can think of them and how they 72 hour exclusion would not apply) exigencies for short duration wiretaps of US persons on US soil outside of FISA but not unconstitutional under Keith and the exigencies line of cases.

Judge Taylor's opinion leaves in place any Title III compliant wiretaps.

Judge Taylor's opinion blocks wiretaps of US citizens on US soil, extending for longer than 3 days, without ever advising a neutral magistrate and obtaining approval for ongoing surveillance.

Judge Taylor's opinon does not block wiretaps of US persons in contact with al-Qaeda, as those will be granted under FISA. Gov has made no argument that it cannot receive al-Qaeda related wiretap warrants from the FISA court.

Judge Taylor's ruling does adopt the Keith court's determination, again upheld by the Sup Ct, that national security is not a "special circumstance" that removes it from the warrant requirement.

Judge Taylor's ruling adopts the Supreme Court's concern in Keith that surveillance of US citizens on US soil but a US govt using US resources implicates significant First Amendment interests, the protection of which is best served by having a neutral magistrate involved in the manner contemplated by the Fourth Amendment.

Judge Taylor's opinion addresses the status of Congress v. the President, vis a vis FISA, and by citing to Youngstown and Keith (which considered the abilities of Congress to interact with the President, and while dicta as well as the dicta in In re Sealed Case, coming as a nearly unanimous opinion of the Sup Ct dealing with an on point matter, it seemingly would have to carry more weight).

Judge Taylor also relied upon Ex Parte Milligan, a case involving a suspected traitor during the Civil War, a US citizen on US soil, in an area that had even been placed under court martial, and a case which resoundingly held, at the Sup Ct level, that even a declared state of court martial during a time of war would not operate disenfranchise a US citizen on US soil from the benefits and protections of the 4th, 5th, 6th Amendments or the BIll of Rights in general, so long as courts are open an operating. It certainly seems to me that FISA and other courts have been open and operating throughout the whole of the last five years. While Judge Taylor has been accused of a use of rhetoric for her reference to hereditary kings, if she had instead referred to despots she would have been merely citing to higher authority - as that is the language used in Milligan.

Everyone may wish the FISA argument had come first and foremost, but for those of us in the Sixth Circuit who remember the Keith case, there is an argument very much to the contrary. :)

lysias

Whether or not Judge Taylor got the constitutional issues right, Congress, in framing any statute, is going to have to consider the Constitution. Reading the Keith case, it strikes me that FISA, although it has been upheld by the courts as constitutional against Fourth Amendment challenges, probably goes about as far as Congress can in abridging Fourth Amendment freedoms without becoming unconstitutional. So Congress probably cannot constitutionally give the president much more power in this matter than FISA already does.

Mary

BTW - some of those who are wondering about the opinion going to the Sup Ct might just want to re-review Justice SCALIA's opinion, joined by Justice Stevens, in HamdI.

When it comes to US citizens on US soil, even during a time of war -- Milligan has an impact, a big impact, on very conservative Justices that are not rampantly political. WHen they are faced with a scheme which also provides for easy warrant access for US citizens, I think Gov's problems are huge. Add in Youngstown, the existing structure of FISA, Presidential lawbreaking for 5 years despite two rounds of Patriot Act amendments, fibs by NSA head, Hayden, during the Joint Hearing, implying that NSA funding provided by Congress was being used consistently with the laws implemented by Congress ---

Andrew McCarthy is right on the talking point, about politicizing the law, but WAY WRONG on the facts and law of his talking point. If Judge Taylor is not resoundingly affirmed, it will be because of a complete politicalization of the courts resulting in an abandonment of American principles that the Executive Branch is not above the law and that the citizens of this country have rights that even a President cannot ignore.

If someone relishes that outcome, there are plenty of countries that already have it in place.

LAK

"Don't see any problem with the consitutionality of TSP as pursued by NSA. Find myself comfortable with the majority of Americans that want our government doing all it can to find, contain, disrupt, destroy and neutralize the terrorists. I think it all fits nicely within the legislatively passed AUMF against the terrorist wherever they may be."

Frederick, lay off the crack rock. Your argument amounts to claiming the implicit powers in being commander in chief trump the whole rest of the constitution. It simply cannot be except in the case of imminent desctruction of the country, real national security crisies, not plain old intelligence gathering operations. You really don't know what you are talking about. It is not rational to listen into the calls of citizens with no probable cause or any kind of cause. The causation standards in FISA are a joke, and if FISA might be unconstitutional, it owuld be becaue it even steps beyond permissible bounds of the 4th amendment (not becasue it would interfere with the Pres doing his militray job).

It flies directly in the face of a duely passed law dealing directly with the subject matter, threby ignoring the very fundamental principle of the separation of powers. And it comletely ignores all accepted 4th amendment precedent. The only argument you have is that there is a national security need, and there simply is not. AGAIN, FISA was amended as a part of the last amendment to the Patriot act AFTER the grants of war powers, so saying the President's authority rests in a grant of authority from Congress is not a valid argument. Your argument that the NSA program could be consistant with FISA is simply WRONG.

And if you'd like to place a bet on it, I'm good to go.

Again. Screwface knows who feels frightened. Listen to Bob. He knows. I hope your irrational cowardice doesn't extend to other aspect of your life. Football players are supposed to be studly and have a spine, not piss their pants and cry for daddy to protect them no matter what laws daddy breaks.

GeoffreyStoneIsOfficiallyADirtbag

The opinion is obvious hackwork. Stone is using his elitism-pulpit to advertise himself as a front-runner for Attorney General if the Democrats win in 2008.

Frederick Hamilton

LAK,
Relax lad. You are good with the epithets. I understand that politics is a blood sport but really. Cowardice. Please. I still fly a lot. The Bush hating has fried a lot of brains. Fortunately not all of them. Try to calm down, you'll live longer. All the prognostications re: NSA, FISA, Judge Taylor, et al are just that. I hold by my thinking and look forward to a finalization of the issue by the Supremes of doing all that can be done LEGALLY to keep us as safe as possible. The terrorists haven't caused a blip in my daily life. I would just like to keep it a life as long as possible. Judge Taylor has it on the front burner and the cooking should be done soon, hopefully.

Seth Edenbaum

Freddie,
Bush hatred [Bush Horror?] is the only rational response at this point. You have access to all the necessary information and refuse to take advantage of it.

Frederick Hamilton

Another interesting note. I have read that Judge Taylor is on Senior status and there are 20 judges in her district. Did she get this case with the usual rotation or did she pilfer it like she tried to do with the affirmative action case a couple of years ago?

And by the way, crack rock is a lawyers drug of choice. We docs have better chemicals than that. Actually, we get high listening to the pontifications of legal constitutional experts. Those especially who hide when their pet causes go down in flames at the Supremes level. Time will tell. If the cooking means I have to eat crow, unlike some on this post, I'll be happy to share my nasty meal with all of you.

Seth Edenbaum

I'd be more reassured if before demanding that we accede to the administrations demands. you'd been able to mount a cogent defense of anything they had done up to this point.

The Bush doctrine is fast becoming a suicide pact.

Frederick Hamilton

Seth,
Lets see. The suicide pact is so far no further attacks on America. I know you won't give Bush any credit for that.

I defend their bringing down the Taliban. I applaud the new government in Afghanistan.

I defend and applaud the overthrow of Iraqi evil dictator Saddam. Look forward to his eventual justice following his horrifying crimes against humanity trial. I am very approving of a 70% turnout of Iraqi's voting for freedom and liberty. America hasn't seen a 70% turnout for over 80 years.

I applaud and appreciate the moral high ground of trying to plant the seeds of freedom and liberty in the Middle East. Will Iraq be a success story? I still believe they will.

No, I am sorry, but the suicide pact you describe will come to pass when we scuttle the Patriot Act, stop trying to listen in on al Qeada, leave Iraq high and dry, sit down for tea with Iran, Syria, Hezbollah, Hamas, et al. The suicide pact will take shape with the Neville Chamberlain Democrats who are so desirous of "peace on our time" that once again America will cave in to the terrorists. Began with the Beirut Marine bombing. Hopefully came to an end with 9/11. Not if you and your ilk get your way it seems to me. But the discussion of NSA, FISA, terrorists, London, Madrid, Iraq, Afghanistan, Lebanon, Israel, Iran, Syria, et al is very worthwhile and hopefully will allow Americans to come to a consesus on how to deal with all of it. The beauty of a Democracy.

Oh geez. Haven't even got to the economy and his brilliant judicial picks for the Supremes, but then I have a gut feeling you'll feel all of that is suicidal also.

Good luck in Nov 06 and Nov 08, should be some good fun with the elections.

Erasmussimo

Mr. Hamilton, I do not pretend to understand the fine points of the decision in question, but you seem to have strayed a long ways from the legal issue here. I realize that there has been considerable topic drift, and that you are only going with the flow, but I would like to remind you -- and your interlocutors -- that it is illogical to compromise legal determinations with emotional appeals based on terrorism. Yes, terrorism is a Bad Thing. But the whole idea of law is to provide us with rules of behavior that apply in all situations. As such, law is most useful to society as a conservative brake on hysterical reactions to sensational events. To argue that terrorism is a threat of such pronounced danger that we should compromise the law is to deny the deep value of law.

I believe that judges should not compromise the law because of terrorism. The President should not be able to bend the law by claiming special circumstances. If the law is inadequate to the times, let the Congress change it, not the courts. If the Constitution stands in the way of necessary action, let us amend it, not trample on it.

Seth Edenbaum

I said 'a cogent defense' not a dreamscape.
But you've proved my point about irrational action and human cussedness.

Frederick Hamilton

Erasmussimo,
Couldn't agree with you more. I am not sure I have strayed. The topic is "Independent and Fearless Judiciary" regarding Judge Anna Diggs Taylor's decision in ACLU v NSA.

I am not sure about straying from that with my opinion that the Judge has written a decidedly personal opinion with histrionics and not law backing her up, her conclusion regarding unconsitutionality will be overturned, the president is exerting his constitutional authorities, no judges are compromising any laws (excepting Taylor and her opinion aside).

Your view of the president bending the law is why we are having this discussion. Not everyone agrees with you, Prof Stone, LAK, Kimball, Seth, et al. The president will comply with the law. He is not a king (poor Judge Taylor) and he is not above the law. The law is not necessarily what you say it is. The president is part of those three branches. He has his legal advisers. The NSA program was vetted with the leaders of Congress. He has powers enumerated in the constitution. Do some of us like his and his legal advisers opinions of his powers in this war on terror? Yes we do. Do you? Apparently not. The issue is framed. The Supremes will probably rule (unless the 6th Circuit Appeal decision is one that when appealed the Supremes simply allow to stand without agreeing to here it) and we will have the federal judiciary tell all of us what the law and the constitution as applied to FISA, NSA et al really means. I am willing to accept the outcome of that. You have your opinions of what federal courts should do regarding terrorism and the constitution, Judge Posner and others have differing opinions. Eventually the representatives of the people (the third branch) may want to weigh in and change the law (Senator Specter among others have bills in the hopper to do just that and give the president the authority they think should be codified into law).

All this hate Bush rhetoric and epithets is a tad demeaning. Do all of you think Judge Posner is a right wing crackpot juiced up on crack rock and a friend of bending the law? Please. Just because many in the land don't agree with your thoughts simply means they could be right and you wrong or the reverse. On with the appeal. More importantly is that this is being discussed and deserves a nationwide discussion. Or as Sen. Reid said, "Congratulations, we just defeated the Patriot Act". Well maybe we the people don't want the Patriot Act defeated. No laws should or will be compromised because of terrorism. Some laws may be changed. President Bush contrary to the Bush haters venom is a believer in the law and will abide by whatever decisions are made by the courts or congress. Once again, bring on the appeal, bring on the discussions, it is good for the country.

As to law and terrorism, Judge Posner's assertion is that the law as presently constructed is not good at handling the terrorism situation. I agree with him. We probably need to change the law and try to extricate as best we can federal courts from the enterprise as he recommends. That will be tricky and will the acrimony all around (see these posts) and in congress it may not be possible. We'll see.

In the mean time, someone living in the White House has to wake up every morning and ask himself, am I doing everything in my power to protect Americans? Right now that fellow is named Bush. In Jan 09 with the election of Nov 08 it'll be a different fellow/gal. No kings, no dictators. Freedom and liberty. Disagreements we are having now are good and no one shot (LAK wants to shoot me, but I am to agile for him). Great isn't it.

Frederick Hamilton

One other point on the all knowing correctness of Judge Taylor, LAK, Prof Stone, Kimball, Seth et al, from another crackpot lawyer posted on these pages nine months ago by a fellow named Cass Sunstein:

"The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

I have already suggested that it is plausible to give a "yes" answer to (1), certainly if we do not consider the effect of FISA. It needn't be conclusive that Congress didn't "intend," with the AUMF, to authorize wiretapping. Once the AUMF is in place, the President can certainly engage in surveillance of some kinds, eg, surveillance of Al Qaeda in Afghanistan. It isn't a big stretch to say that he can engage in surveillance of people with known Al Qaeda affiliations who are calling to or from the United States. (If Osama Bin Laden is calling New York, it's clear, I think, that the AUMF allows the President to listen to the call.) If there were doubt about the President's power under the AUMF, a plausible claim of inherent power, under (2), would justify reading the AUMF to allow the President to engage in surveillance. (Of course nothing I have said suggests that under the AUMF, the President can engage in surveillance of people without a tie to organizations or nations associated with the attacks of 9/11.)

What about (2)? The Supreme Court has not decided this question, and some lower courts seem to have ruled in the President's favor on this one. Orin Kerr, at the Volokh Conspiracy, has an excellent post that covers this issue (and others I am discussing here). It is not clear that the President is right on (2), but it isn't clear that he is wrong.

On (3), the question is how to square the AUMF with FISI. It isn't unreasonable to say that the more specific statute, FISA, trumps the more general, so that the wiretapping issue is effectively governed by FISI. But if surveillance is taken to be an ordinary incident of war, and if the President has a plausible claim to inherent authority, this argument is substantially weakened. Note that the President isn't forbidden, by the precedents, from arguing that FISI is unconstitututional insofar as it forbids him from engaging in the relevant activity (item (4) in my catalogue). I am not sure how strong this argument is; if it is pretty strong, there is good reason to read the AUMF to allow the President to wiretap, and not to read FISI so as to forbid wiretapping, simply to avoid the hard constitutional question.

What about the Fourth Amendment? It turns out that the President has a plausible claim here as well (again see Orin Kerr's post for helpful discussion) -- not necessarily decisive, but plausible. The cases do not clearly support the view that when monitoring (a) an international call involving (b) someone with an Al Qaeda connection (c) to or from the United States, the President must, (d) under post-9/11 conditions, obtain a warrant. (The AUMF is helpful to the President here.) But to the extent that the Fourth Amendment claim is strong, there is reason to interpret the AUMF narrowly, so as to avoid that question, and also to interpret FISI broadly, also to avoid the Fourth Amendment question. On the other hand, the President's claim of inherent authority, if plausible, raises doubts about this approach.

This is meant as an exceedingly tentative analysis, with the purposes of disaggregating the issues and of suggesting that there are several unresolved questions here.

Erasmussimo

Mr. Hamilton, I agree with some parts of what you write, and disagree with other parts. The item I disagree with most strenuously is this:

"President Bush contrary to the Bush haters venom is a believer in the law and will abide by whatever decisions are made by the courts or congress."

Mr. Bush has already made over 700 assertions that he will not abide by the law as passed by Congress. I refer, of course, to the Presidential signing statements -- which is another topic already well-reheased here. On this point, the President seems to have the weight of conventional wisdom leaning heavily against him -- although he can cite the support of a few eminent jurists. I suspect that, if he is ever specifically challenged on his signing statements, he will lose in court. His refusal to abide by the restrictions of anti-torture piece enacted at the end of last year is a likely point on which he would lose if ever challenged.

Moreover, I remind you that Mr. Bush has acknowledged that his warrantless wiretapping violates the law. His defense is that as President he is not required to abide by that law. In effect, he is making the fine point that, while he *is* breaking FISA, he is justified in doing so by larger Constitutional considerations. The theory is interesting, but I don't think it appropriate for him to be the one who determines the legal correctness of this position. It seems to me that the proper resolution of this controversy is to indict the President for violation of FISA, have a trial, and take it all the way to the Supreme Court.

Unfortunately, this won't happen because Mr. Bush controls the prosecutors who would indict him. Thus, we are forced to take the far less satisfying approach of having Congress impeach and try Mr. Bush for these violations; in the Senate trial we could get a more proper evaluation of his constitutional claims. This too is not politically feasible at this time. However, the Democrats are likely to take the House in November and they stand a goodly chance of taking the Senate as well. If this eventuates, then I think that an impeachment and trial would be a salutary experience for the Republic.

I agree with you (and Mr. Posner) most heartily that the law in its current form is inadequate to address terrorism. I would prefer to see a package of laws address transnational crime of all kinds. I would also like to see a clear differentiation in our legal system between war and terrorism. Right now what we have is a muddle.

David

How many of you have read Judge Taylor's opinion? It's readibly available on the net.

I have--a couple of times--and it seems to me that she is saying that the supposed inconvenience of some researchers, reporters and lawyers caused by the reluctance of members of Al Qaida to talk to them on the telephone because of the NSA program trumps the President's power to gather foreign intelligence as a Constitutional matter.

While that might be true under FISA (and I don't think any of us knows enough about how the NSA program is being conducted to know whether or not the program violates FISA), it is certainly a novel proposition that a few peoples' alleged rights under the Constitution would prevent the President and Congress acting together from instituting such a program. Because if they do have constitutional rights, then there is nothing the other two branches can do about it.

Or am I reading the opinion wrong?

bcowan

From another perspective, there is as much (or, as I think, more) reason to believe that the terrorism threat will pass soon, historically speaking, as that our Republic is in danger of being extinguised by the current outbreak of old resentments.

That is what Lawyers are supposed to recognize, at least: that there are multiple relevant contexts, each dominated by its own peculiar order, within which a particular policy decision must make sense. It is not enough in our tradition to respond narrowly to what is suggested to the excited imagination by vivid passing events. What comes afterwards must also figure in.

The dimensions and relations of many of those other contexts are importantly symbolized, if not actually represented, in the Law (the whiff of antifoundationalism from Seth, supra, bespeaks caution here), understanding "the Law" both as a collection of expressive resources and as a cultural activity.

As I see it, the issue is whether inadequately restrained pursuit of our pragmatic and epistemological interests is wise, considering our teleological interests.

In other words, while smacking our adversaries can be greatly helped by intercepting their communications (e.g., the code breakings in WW II) we should be wary of actions that could leave to our future non-terrorized selves too great a task of taming dangerous powers acquired in the process by the State.

Geoff Stone's exemplary scholarship on this very point shows that the record of our institutions getting it quite horribly wrong when under the stress of war is far from negligible.

Judge Taylor has made a proper effort, on behalf of the Law, to slow down what may well be part of a rush towards despotism in reaction to a threat that, even if credited with all the deaths attributed to it by the Administration, has killed fewer Americans than a typical year of holiday weekends on our own highways.

Those who deride the Judge ought at least to recognize that her reponsibility is not to answer the question "How can we beat those bastards?" but rather, "How do the means adopted here integrate with all of the relevant commitments our society has made with regard to government using its powers?"

I think she did a pretty good job of that and I believe she will be upheld.

Frederick Hamilton

Erasmussimo,
I don't believe you are correct in asserting that President Bush acknowledges his NSA program violates any law. He and AG Gonzales argue strongly that the NSA program is very legal. You are wrong about that. You state that his defense is that as president he is not required to abide by that law. Again I don't think he is arguing that.

I strongly disagree with your assertion that an impeachment of President Bush would be a salutory experience for the Republic. I don't disagree that if the Democrats take the House and Senate in Nov 06 that indeed they might pursue an impeachment. That fact of their rise to power and impeaching of the president should be an integral part of the election process and an informed electorate should be aware of the Democrats wanting to pursue impeaching President Bush. I think the Dems alerting the country of this desire might keep them from taking over the House and Senate. Could be wrong, just my thought on the matter.

Erasmussimo

Mr. Hamilton, I suggest that you consult the DOJ letter presenting the Administration's justification for its warrantless wiretapping. You can find it here:

http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf

You will note that this letter presents a series of arguments based on considerations other than FISA. At no point does it claim that Mr. Bush's actions fell within the FISA law. Indeed, it castigates FISA as inadequate to the task. It constitutes a tacit admission that Mr. Bush did violate FISA itself.

You might also wish to examine a report from the Congressional Research Service countering the claims made in the DOJ letter:

http://www.opencrs.com/document/M20060105

As to the possibility of impeachment, I feel that judicial action is much to be desired over Congressional action; if Mr. Bush were impeached and convicted, that conviction would always smell of politics rather than justice. Sadly, Mr. Bush obstructs that avenue, so we must instead investigate this issue through Congress. I would hope that Congresscritters would apply the highest standards of objectivity to such a trial. And I believe that, were they to do so, they would vote to convict Mr. Bush. This could perhaps be followed up, once Mr. Bush has been removed from office, with proper legal prosecutions which would provide a more reliable judgment of the legality of Mr. Bush's actions. If Mr. Bush were removed from office and subsequently convicted in a court of law, I think that all Americans could accept that justice was done. Conversely, if Mr. Bush were removed from office and subsequently acquitted, that would constitute a national disgrace for the Senate.

David

Erasmussimo--

What criminal statutes do you think that President Bush has violated? Please be specific.

Erasmussimo

David, he appears to have violated the FISA requirement that he obtain a warrant within 72 hours of beginning eavesdropping activities on an individual. (Actually, he directed others to do so, but he bears the legal liability for the action.)

Reginald Perrin

If Judge Diggs' ruling stands (not the opinion but the ruling) then the President violated FISA, which is a criminal statute with criminal penalty provisions.
It is also unclear, in terms of constitutional law, exactly what "high crimes and misdemeanors" are sufficient for impeachment. It may not be necessary to show that the President breached a criminal statute in order to impeach him.
Finally, I note that no-one has mentioned the incredibly low bar for impeachment set by the Republicans when they decided to try to impeach President Clinton. If Bush is subject to impeachment proceedings, it will only be because the Republicans decided to abuse impeachment as a political weapon in the 1990s. Sow the wind, reap the whirlwind, my Republican friends.

Bob

Why does Bush even need FISA? We (the CIA and FBI) already have deals with INTERPOL, Scottland Yard, MI6, Isrealis, and on and on. They spy on American citizens and we spy on theirs. We keep files on people and exchange this information. Why does the US need to spy on their own citizens anyway? We already have other foreign agencies doing it and keeping files on us.

Frederick Hamilton

So much for Prof Stone's admiration for Judge Taylor's independence. This from today's New York Times:

"When Judge Anna Diggs Taylor was given the job of deciding whether the Bush administration’s wiretapping program was unconstitutional, she certainly understood that she would be ruling on one of the most politically charged cases in recent history. So it would have been prudent for her to disclose any activity that might conceivably raise questions about her ability to be impartial. Regrettably, it was left to a conservative group, Judicial Watch, to point out her role as a trustee to a foundation that had given grants to a branch of the American Civil Liberties Union, a plaintiff in the case......

Judge Taylor’s role at a grant-making foundation whose list of beneficiaries includes groups that regularly litigate in the courts is still disquieting — and, even worse, it is not all that unusual for a member of the judiciary. The most important lesson here may be the wisdom of re-examining the sort of outside activities that are appropriate for sitting federal judges."

It appears Judge Taylor might have a lot of explaining to do. Does Prof Stone still think she is independent of the ACLU? What does Prof Stone think of her attempt to pilfer an affirmative action case in her district a few years ago? Is he unaware of that. It is well documented.

Poor Judge Anna Diggs Taylor. As an independent judicial voice she is a joke. As a human being she may be a wonderful person. It appears honesty, independence and a strong analytical judical mindset are not here strong points. Too bad.

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