Here Come De Judge

In a landmark ruling handed down Thursday, U.S. District Court Justice Anna Diggs Taylor ruled the Bush Administration’s warrantless spying program is an “obvious” violation of the Fourth Amendment, was illegally implemented without regard to the Foreign Intelligence Surveillance Act of 1978, and should be halted immediately.

The courts’ first ruling on the National Security Administration’s once-secret activity was immediately appealed to the 6th U.S. Circuit Court of Appeals and the parties to the case agreed to a stay of the District Court’s ruling until September 7th, when the Appeals Court will hear arguments on a further stay pending resolution of the broader case.

Today the Bush administration and its dwindling number of neoconservative supporters were in full cry declaiming the absurdity of the ruling. Editors at the National Review warned that forcing the government to comply with the law would prevent it from pursing the War on Terror and The Wall Street Journal screamed that Americans might die as a result of Judge Taylor’s ruling.

Members of the reality-based community, including the American Civil Liberties Union ( a lead plaintiff in the case), and congressional leaders from both the Democratic and Republican parties, hailed the decision for its focus on the Constitution and on the system of checks and balances at the foundation of our democracy.

Writer Glenn Greenwald wrote a very thoughtful piece today in Salon pointing out just what the court’s ruling means and what it does not mean.

Judge Taylor clearly supports the government’s charge to protect the American people and in no way purports to prohibit spying on suspected terrorists. She rightly points out, however, “There are no hereditary kings in America, and no powers not created by the Constitution.”

In a portion of the ruling with far-reaching and interesting implications for the administration’s efforts to change the law to retroactively excuse administration officials (including the President) from prosecution for crimes committed in pursuit of the War on Terror, Judge Taylor found warrantless eavesdropping unconstitutional on its face.

Thus, legislation to effectively eliminate all restrictions on the president’s power to eavesdrop on Americans — introduced in consultation with the White House by Senator Arlen Specter, chairman of the Senate Judiciary Committee, — would be precluded. Congress cannot authorize unconstitutional activities.

And so begins the long, hard slog toward resuscitation of democracy and freedom, and law and order, here where it all began.

Three months is forever in a political cycle. The mid-term elections will set a tone for denoument in the reign of Number 43, whether his party retains a legislative majority or not. It seems safe to say little of import will issue from the People’s bicameral voice in the next two years.

The wheels of Justice are slow, but inevitable.

Mr. Bush’s best hope is to forestall a complete recognition of his failures until he’s drawing a pension.


  1. CHARLES PITTS - August 19, 2006 @ 12:10 am

    one can not know freedom
    untill they know blood shed

  2. Jeseppi Trade Wildfeather - August 19, 2006 @ 9:19 pm

    Well said, my brother. My only concern is when the pendulum swings how far left will it go as a reaction, and in what new despot will our enfeebled liberty find (to quote Washington’s Farewell) … “security and repose?” Only the Bilderbergers know for sure.

  3. lonbud - August 20, 2006 @ 12:34 am

    I don’t think we have to worry about the pendulum swinging too far left, certainly not into any arc that might serve up a leftist despot. We’ll do well to end up with a chief executive who’s got a passing familiarity with notions of anti-trust and a sense that science can tell us a few things about ourselves.

  4. Michael Herdegen - August 20, 2006 @ 1:16 am

    “Justice” Anna Taylor’s ruling will be swiftly overturned.

    Experts Fault Reasoning in Surveillance Decision
    ADAM LIPTAK, 8/19/06

    [Emphasis added] Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

    They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

    Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

    “It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

    Let’s see – overlooking important precedents, failing to engage the opposition’s arguments, circular reasoning, passion substituted for analysis…
    No wonder the Left loves this decision. Its reasoning is exactly the same as how they interact with the world.

  5. lonbud - August 20, 2006 @ 10:38 am

    Yes, by golly, if you read it in the NYT it must be true! Remember all those Judith Miller articles in the run-up to the Iraq cliff-jumping exercise?

    This decision will undoubtedly wend its way to the Supreme Court, even be sent back to the District Court for additional litigation. In the end, BushCo will be found to have violated both the law and the Constitution.

    Both Greenwald and Liptak point out analytical deficiencies in Judge Taylor’s reasoning but conclude themselves — in addition to quoting a host of legal experts of similar mind — that the NSA program is illegal.

    It won’t really matter whether the Supreme Court adopts Judge Taylor’s reasoning or fashions some of its own to get there, but the real tragedy is that neither w nor anyone in his adminisration is likely to face any consequences for having done as they pleased.

  6. Michael Herdegen - August 21, 2006 @ 2:02 am

    Yeah, NYTimes is hardly the standard for journalism excellence, anymore. But better them as a source than, say, National Review, eh ?

    I predict that the SCOTUS will find that the NSA surveillence programme was substantially within the bounds of the President’s Constitutional authority. They may have a few nits to pick, but many Presidents before have done roughly similar things, within the capabilities of the technology of their time. Also, former Justice Dept. officials from the Carter and Clinton admins have publicly opined that they believe that the programme, or at least what we know about it, is legal, and that the admins that they served in did similar but less far-reaching things.
    We’ll have to wait and see.

    [T]he real tragedy is that neither w nor anyone in his adminisration is likely to face any consequences for having done as they pleased.

    Yes, damn them to Hades for daring to attempt to keep America safe from harm !!!
    The fools !

    Seriously, what personal gain do you see for any of them in this surveillence programme, in Gitmo, in the Patriot Act ?
    It’s all in the service of the public. In a backhanded way, it’s a compliment to them that you think that what they do, when they’re free to “do as they please”, is to defend and protect the innocent.

  7. Paul Burke - August 21, 2006 @ 11:52 am

    passion substituted for analysis…
    Yes, damn them to Hades for daring to attempt to keep America safe from harm !!! The fools !

    How many exclamation points does it take to indicate passion substituted for analysis.

    The defense of the Republic is written into the Constitution it’s an issue that doesn’t belong to either party – hyperbole’s from the radical right don’t further the great cause of this great country but diminish all of us in the eyes of the world and of each other – Fearmongering is no way to run a country but it is a desperate attempt to hold onto power. Goose stepping to a religious theocracy ushered in by this President and the last President’s lame personal behavior is not the answer. Our salvation as a Nation is to be found in our founding documents. Thousands of years of experience went into it’s creation as man evolved not only in capacity but in thinking. however today there seems to be little thinking and a lot of rooting as if the republicans and democrates are two teams on a football field. Governing is not a game unless turned into by those that govern. We need a return to priorities and what is good for the country first – special interest seciond – and some real finger burning on those that try to gain for their own personal benefit. I’ll leave you with these words –

    “We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends on evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.

    This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.”

    Edward R. Murrow
    Good Night and Good Luck

  8. lonbud - August 21, 2006 @ 8:22 pm

    Failing to adhere to the requirements of law is never in service of the public, no matter how much one deludes onself that she’s protecting or defending the innocent.

  9. Tam O’Tellico - August 21, 2006 @ 9:45 pm

    I do not know how the SC will rule on what many seem to be think is a weak-reasoned ruling. However, I must say that it would be hard to surpass the weak-reasoned rationale thrown up by John Yoo and the yahoos in support of such absolute authority being vested in the “Unitary President”. Such reasoning is little more than a return to the very sort of rule of kings against which this nation was founded.

    It may well be that the fool who would be king has some justification for believing his cause is just, and therefore that he is justified in trampling over our hard-won constitutional protections. But just as with torture, the first mistake these ends-justify-means zealots make is to presume that their methods are indeed effective or that there isn’t some far less immoral or dangerous way to achieve the same end.

    What we witness over and over again with this administration is small-minded men taking the easy way out – only to discover that way leads down a long, hard road in the wrong direction.

  10. Tam O’Tellico - August 22, 2006 @ 5:46 am

    “overlooking important precedents, failing to engage the opposition’s arguments, circular reasoning, passion substituted for analysis…”

    Oh, for a minute there, I thought someone was describing this administration. Certainly, the criticisms lodged in this rebuke perfectly describe what passes for governance in this White House.

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