Unconstitutional

Breaking news: A federal judge in Detroit has ruled that the Bush Administration’s warrantless wiretapping program is unconstitutional.

The judge’s ruling is here.

A bit about the judge herself: Anna Diggs Taylor was the first black woman appointed as a federal judge in Michigan, and now serves as the first black woman to be Chief Judge of the U.S. District Court for the Eastern District of Michigan. Prior to becoming a judge, she served as a lawyer, prosecutor, city attorney and civil-rights worker. So she knows a little something about civil rights.

From her opinion:

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.

More from Scott, Hilzoy, and Glenn Greenwald. And, if you can stomach it, noted legal expert Kathryn Jean Lopez.


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16 Responses to Unconstitutional

  1. Heliologue says:

    Why does Judge Taylor hate America?

  2. Josh says:

    I hate that fucking terrorist-friendly First Amendment.

  3. ole blue says:

    Out of the abyss of fear, ignorance and conformity comes a voice of sanity.

  4. piny says:

    Ha! Okay, that was totally what I thought, too.

  5. Sophist says:

    Damn activist Presidents!

  6. whimsy says:

    My mother works there! — although not under Judge Taylor, although she knows her. I’ll have to let her know about this the next time we talk.

  7. Defenseman Emeritus says:

    In this case, the President has acted, undisputedly, as FISA forbids.

    While I’m sure many, if not all, writers and commenters here agree with the legal decision, the pull quote above is patently false. It most certainly is not undisputed that the President has acted as FISA forbids. The mere fact that Taylor’s decision is being appealed disproves that statement.

    For my part, I don’t know if the NSA wiretapping program violates FISA or not. But it’s not too bright to call that assertion “undisputed,” particularly when consensus across reaction that I’ve read seems to be that her judgment will be overturned on appeal.

  8. zuzu says:

    It’s not false at all. Bush himself has said that he hasn’t been getting warrants. FISA requires warrants. Ergo, it is undisputed that he has been doing what FISA forbids.

    His argument has been that he does not need to follow FISA because of the War on Terra, not that what he’s doing is permitted under FISA. The administration will appeal on that basis, and in addition will claim that the federal courts have no power to review this program because of national security concerns.

    And, really, regardless of “consensus” (what, among warbloggers?), it’s a fool’s game to try to predict what the appeals court will do, even after the briefs are in.

  9. Defenseman Emeritus says:

    FISA requires warrants for communications that take place entirely within the United States.

    FISA 1801 (f) (3):

    “Electronic surveillance” means—the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States;

    Because the NSA program is targeting communications with suspected terrorists outside the US, FISA does not apply to those calls.

    I agree that the President would have gone ahead with the program regardless, as the administration is also justifying it as another use of force pursuant to Congress’ resolution authorizing the use of force in the wake of 9/11.

    BTW, people that support the NSA program are not necessarily “warbloggers.”

  10. zuzu says:

    Because the NSA program is targeting communications with suspected terrorists outside the US, FISA does not apply to those calls.

    Bit disingenuous of you to leave out the parts of the FISA definition of “electronic surveillance” that applies to “United States Persons” and prohibits warrantless monitoring of their communications even when the other party is outside the US?

    Those would be 50 U.S.C. s.1801(f)(1) and (2):

    (f) “Electronic surveillance” means—
    (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
    (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

    Then there’s subsection (4), which says:

    (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

    Moreover, the NSA has also been targeting communications entirely within the US. Don’t you remember that they’re making a massive database of every call placed within the United States — with the aid and assistance of various phone companies.

    So, sorry, but your argument just doesn’t fly.

  11. Defenseman Emeritus says:

    Nothing you quoted refutes my argument. al Qaeda does not have a reasonable expectation of privacy. Just because it doesn’t fly with you doesn’t mean it doesn’t fly.

    Your snippy tone indicates that you don’t welcome ideas that from your own, so I don’t think I’ll be back. Enjoy your echo chamber.

  12. zuzu says:

    The problem, dear Defenseman, is that you assume that these programs are actually targeted to al Qaeda and not just sweeping up any random Arab-American who calls Grandma in Damascus.

    I have no objection to surveillance — it’s WARRANTLESS surveillance that I have a problem with. And that’s exactly what we have here. The FISA court is a rubber-stamp court, but it does have the advantage of providing a record of who’s under surveillance and exercising a modicum of oversight. Moreover, if there’s probable cause to believe that someone is talking to a member of al Qaeda, there’s probable cause to obtain a warrant. Even retroactively.

  13. Medicine Man says:

    Where did DE go? Oh well… just another person with a completely intractible opinion on the subject who will go to any length to avoid having his preconceptions challenged. How ordinary.

  14. Christopher says:

    Not that I’m a legal expert or anything, but doesn’t saying, “Al Qaeda has no expectation of privacy” sort of assume the thing to be determined by the wiretapping?

    I mean, isn’t that sort of saying they have no expectation of privacy because they’re criminals, which we’ll prove by wire-tapping them?

  15. raging red says:

    Yes, Christopher, that’s basically the wingnuts’ whole argument in a nutshell — “the evil liberals don’t want the government to be able to listen in on Al Qaeda’s phone calls!” As if we can tell who is or is not an Al Qaeda member just by looking at them. Oh wait — they do think that.

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