Finally, some good news
News flash! Second federal court ruling that shows the Bush Criminal Regime is engaged in illegal acts.
Judge Rules Against Wiretaps: NSA Program Called Unconstitutional
From Glenn Greenwald, writing in Salon.com:
A federal district judge ruled Thursday that the Bush administration's warrantless eavesdropping program is unconstitutional, and on that basis ordered that the controversial program run by the National Security Agency cease immediately. The judge, Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan, found that warrantless eavesdropping violates both the First and Fourth Amendments of the U.S. Constitution, as well as the 1978 Foreign Intelligence Surveillance Act (FISA), which makes it a criminal offense to eavesdrop on Americans without first obtaining warrants.
The decision is the first ruling by any court on the legality of the NSA program, a secret Bush program that was first revealed last December by the New York Times. In a ruling striking for its unusually emphatic language, the court rejected every argument advanced by the administration to defend its right to eavesdrop without warrants. The court also rejected the administration's claim that mere adjudication by the court of the legality of the NSA program would risk the disclosure of "state secrets," an assertion the administration has used repeatedly to avoid judicial review of its actions. And perhaps most significantly, the judge resoundingly rejected the administration's broad theories of executive power: "There are no hereditary kings in America," Taylor wrote, "and no powers not created by the Constitution."
The decision has already been appealed by the Bush administration to the 6th U.S. Circuit Court of Appeals, considered to be conservative-leaning, and the parties have agreed that the District Court's order will be stayed (that is, not enforced) until Sept. 7, when the court will further decide if the order will be stayed pending an appeal.
It is important to be clear about what this decision means and what it does not mean -- particularly since the White House, among others, is already depicting this ruling as some sort of epic blow to the administration's efforts to fight terrorism. This ruling does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA.
Thus, even under the court's order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court -- just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the U.K. terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.
This ruling also has critical implications for the administration's efforts to change the law so as to legalize its warrantless eavesdropping activities. Sen. Arlen Specter, working in collaboration with the White House, has introduced legislation that would effectively eliminate all restrictions on the president's power to eavesdrop on Americans. That bill would make the process of obtaining warrants optional, rather than mandatory, and it would all but kill off judicial challenges to the legality of the president's eavesdropping.
But the court's ruling today strongly suggests that the Specter bill would be just as unconstitutional as the president's current eavesdropping program. This is because the court found warrantless eavesdropping generally to be a violation of the Fourth and First Amendments. Thus, Congress cannot authorize warrantless eavesdropping via legislation -- Congress cannot authorize activities that are unconstitutional -- which would preclude enforcement of the Specter bill.
Still, commentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak and thus vulnerable on appeal with respect to several critical issues. The court, for instance, barely explains why warrantless eavesdropping violates the Fourth Amendment, and its discussion of why such eavesdropping violates the First Amendment borders on the incoherent. And with respect to the most difficult hurdle the plaintiffs faced -- whether they have "standing" to challenge the NSA program in light of their inability to prove that their conversations were monitored -- the court made the best case it could as to why the plaintiffs should be allowed to proceed, but it relied on reasoning that is far from decisive.
Nonetheless, the political significance of this decision cannot be denied. The first federal court ever to rule on the administration's NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law.
And in so holding, the court eloquently and powerfully rejected the Bush administration's claims of unchecked executive power in the area of national security. The court observed that "it was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights ... We must always be mindful that '[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.' Clinton v. Jones, 520 U.S. 681, 703 (1997)."
Ever since the 9/11 attacks, the Bush administration has insisted that nothing can restrict the president's decisions in any way with regard to national security, including laws enacted by the coequal branch of government, the Congress. Such a theory is wholly alien to the most fundamental principles that have defined this country since its founding. The court's decision today reaffirms that even in times of war, the president is bound by the rule of law and constrained by the protections guaranteed to Americans by the Bill of Rights. And that the Bush administration simply has no justification for acting outside the parameters of the law.
Glenn Greenwald has been a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters, for the past 10 years. He has a couple more articles on today's ruling over at his blog, Unclaimed Territory, that are worth reading.
Some highlights of his analysis of the ruling (emphases mine):
Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.
Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.
Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.
He points out in his latest blog entry that, as should be obvious to anyone (anyone who isn't part of the Bush Crime Family, that is), that Breaking the law has consequences.
My overall analysis of today's extraordinary federal court decision on the NSA warrantless eavesdropping program is in the post [above]. I also have an article up at Salon summarizing the importance of this ruling[also above]. But I wanted to emphasize in a separate post what I think is one of the most important consequences of today's events.
In Hamdan v. Rumsfeld, the Supreme Court -- as Marty Lederman was the first to note -- rejected the Bush administration's principal defense for its violations of the Geneva Conventions not only with regard to military commissions, but generally. By holding that Common Article 3 of the Conventions applies to all detainees, and a failure to treat detainees in compliance with Common Article 3 constitutes "war crimes," the Supreme Court effectively found that Bush officials have authorized and engaged in felony violations of the War Crimes Act (18 U.S.C. sec. 2241), which makes it a federal crime to violate war treaties such as the Geneva Conventions. That is why the administration is busy at work trying to change that law so as to retroactively legalize their conduct -- because the Supreme Court all but branded them war criminals, and the consequences of that can be severe.
And now, a federal court in Michigan -- the first to rule on the legality of the President's NSA program -- just rejected all of the administration's defenses for eavesdropping in violation of FISA, effectively finding that the administration has been engaged in deliberate criminal acts by eavesdropping without judicial approval. And as I documented previously, Hamdan itself independently compels rejection of the administration's only defenses to its violations of FISA. Eavesdropping in violation of FISA is a federal crime, punishable by up to 5 years in prison and a $10,000 fine (50 U.S.C. 1809).
Thus, judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be -- and are required to be -- held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law -- criminal laws -- in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.
But of course, now the Right Wing Smear Machine is gearing up into Full Hysterical Mode. Already the ad hominem attacks against the judge, personally, are being blasted across the airwaves. She's a Liberal Black Carter Appointee. (They say that like it's a bad thing... lol....) She's an idiot. She's stupid. She hates America and loves Terrists. She should be drowned. And above all else, Preznit Bu$h should IGNORE THIS EVIL RULING!!!, until it can be appealed and their own Pet Neo-con Judges (TM) can strike it down. (Because you know Torquemada Gonzales will do everything he can to make sure the appeal is held in a "friendly" court, now don't you.)
Gads.
I think I'll let my old pal Mike Malloy have the last word here:
Finally. A federal judge in Detroit today ruled the obvious: The Bush Crime Family’s surveillance program is unconstitutional. Too bad the judge could not also rule it was stupid, ridiculous, and an all too familiar example of the Conservative hatred of justice, liberty and the rule of law. This decision so upset the neo-Nazis now running the country they immediately brought bogus Attorney General (bogus because he is supposed to enforce federal law, not destroy the US Constitution) Alberto Gonzales out of his crawl space to threaten and moan that this judge was obviously a terrorist who hates America and probably supports gay marriage.
The net effect of Alberto’s hangdog comments was to blow the Jon Benet Ramsey story completely off the telescreens - which, in its turn, had completely blown the Death in Lebanon and the Death in Iraq stories completely off the telescreens. Which, earlier, had blown the Death in Gaza story completely off the telescreen. Whooosh. Things are moving way too fast, here.
Once Alberto was finished warning that Armageddon was indeed at hand because of the ruling, the usual gang of Congressional Republican law-breakers - shabbily disguised as law-makers - immediately glommed onto the nearest Fox or CNN or NBC camera person and planted his (his, not her) shocked persona in the middle of the telescreen with warnings that the judge’s ruling meant the terrorists were on their way even as they, the Republican thugs, were warning of the impending disaster about to be visited on the hapless American citizens, destruction surely on a heretofore unprecedented scale, now that they, the Conservative neo-Nazis, could no longer violate, and intrude into, the private lives of (gasp!) American citizens!.
While all this drama was unfolding, President Chucklenuts was still va-rooooom, va-rooooom, va-roooooming a stationary motorcycle and hollering, “This is a hog! This is a HOG!” while deeply shocked and embarrassed aides tried to tell him that was yesterday’s photo op and the black and silver Harley was really back in the York, Pa., factory and not still between his manly legs regardless of what his meds might be making him think was happening.
Meanwhile, back in the real world, Alberto was insisting the feds were not going to take this assault on their assault on the Constitution lightly. No, Ma’m. This is war. On to the Justice Department’s Special Office on Stupid Black Female Judges Who Can’t Seem to Remember Their Place. Agents from that office were trying to find out if the judge had ever been on welfare or had unpaid gambling debts or was a Muslim or had a Muslim nephew perhaps, or knew any Muslims.
The drama continues....
Judge Rules Against Wiretaps: NSA Program Called Unconstitutional
From Glenn Greenwald, writing in Salon.com:
A federal district judge ruled Thursday that the Bush administration's warrantless eavesdropping program is unconstitutional, and on that basis ordered that the controversial program run by the National Security Agency cease immediately. The judge, Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan, found that warrantless eavesdropping violates both the First and Fourth Amendments of the U.S. Constitution, as well as the 1978 Foreign Intelligence Surveillance Act (FISA), which makes it a criminal offense to eavesdrop on Americans without first obtaining warrants.
The decision is the first ruling by any court on the legality of the NSA program, a secret Bush program that was first revealed last December by the New York Times. In a ruling striking for its unusually emphatic language, the court rejected every argument advanced by the administration to defend its right to eavesdrop without warrants. The court also rejected the administration's claim that mere adjudication by the court of the legality of the NSA program would risk the disclosure of "state secrets," an assertion the administration has used repeatedly to avoid judicial review of its actions. And perhaps most significantly, the judge resoundingly rejected the administration's broad theories of executive power: "There are no hereditary kings in America," Taylor wrote, "and no powers not created by the Constitution."
The decision has already been appealed by the Bush administration to the 6th U.S. Circuit Court of Appeals, considered to be conservative-leaning, and the parties have agreed that the District Court's order will be stayed (that is, not enforced) until Sept. 7, when the court will further decide if the order will be stayed pending an appeal.
It is important to be clear about what this decision means and what it does not mean -- particularly since the White House, among others, is already depicting this ruling as some sort of epic blow to the administration's efforts to fight terrorism. This ruling does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA.
Thus, even under the court's order, the Bush administration is free to continue to do all the eavesdropping on terrorists it wants to do. It just has to cease doing so using its own secretive parameters, and instead do so with the oversight of the FISA court -- just as all administrations have done since 1978, just as the law requires, and just as it did very recently when using surveillance with regard to the U.K. terror plot. Eavesdropping on terrorists can continue in full force. But it must comply with the law.
This ruling also has critical implications for the administration's efforts to change the law so as to legalize its warrantless eavesdropping activities. Sen. Arlen Specter, working in collaboration with the White House, has introduced legislation that would effectively eliminate all restrictions on the president's power to eavesdrop on Americans. That bill would make the process of obtaining warrants optional, rather than mandatory, and it would all but kill off judicial challenges to the legality of the president's eavesdropping.
But the court's ruling today strongly suggests that the Specter bill would be just as unconstitutional as the president's current eavesdropping program. This is because the court found warrantless eavesdropping generally to be a violation of the Fourth and First Amendments. Thus, Congress cannot authorize warrantless eavesdropping via legislation -- Congress cannot authorize activities that are unconstitutional -- which would preclude enforcement of the Specter bill.
Still, commentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak and thus vulnerable on appeal with respect to several critical issues. The court, for instance, barely explains why warrantless eavesdropping violates the Fourth Amendment, and its discussion of why such eavesdropping violates the First Amendment borders on the incoherent. And with respect to the most difficult hurdle the plaintiffs faced -- whether they have "standing" to challenge the NSA program in light of their inability to prove that their conversations were monitored -- the court made the best case it could as to why the plaintiffs should be allowed to proceed, but it relied on reasoning that is far from decisive.
Nonetheless, the political significance of this decision cannot be denied. The first federal court ever to rule on the administration's NSA program has ruled that it violates the constitutional rights of Americans in several respects, and that it violates criminal law.
And in so holding, the court eloquently and powerfully rejected the Bush administration's claims of unchecked executive power in the area of national security. The court observed that "it was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights ... We must always be mindful that '[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.' Clinton v. Jones, 520 U.S. 681, 703 (1997)."
Ever since the 9/11 attacks, the Bush administration has insisted that nothing can restrict the president's decisions in any way with regard to national security, including laws enacted by the coequal branch of government, the Congress. Such a theory is wholly alien to the most fundamental principles that have defined this country since its founding. The court's decision today reaffirms that even in times of war, the president is bound by the rule of law and constrained by the protections guaranteed to Americans by the Bill of Rights. And that the Bush administration simply has no justification for acting outside the parameters of the law.
Glenn Greenwald has been a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters, for the past 10 years. He has a couple more articles on today's ruling over at his blog, Unclaimed Territory, that are worth reading.
Some highlights of his analysis of the ruling (emphases mine):
Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.
Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.
Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.
He points out in his latest blog entry that, as should be obvious to anyone (anyone who isn't part of the Bush Crime Family, that is), that Breaking the law has consequences.
My overall analysis of today's extraordinary federal court decision on the NSA warrantless eavesdropping program is in the post [above]. I also have an article up at Salon summarizing the importance of this ruling[also above]. But I wanted to emphasize in a separate post what I think is one of the most important consequences of today's events.
In Hamdan v. Rumsfeld, the Supreme Court -- as Marty Lederman was the first to note -- rejected the Bush administration's principal defense for its violations of the Geneva Conventions not only with regard to military commissions, but generally. By holding that Common Article 3 of the Conventions applies to all detainees, and a failure to treat detainees in compliance with Common Article 3 constitutes "war crimes," the Supreme Court effectively found that Bush officials have authorized and engaged in felony violations of the War Crimes Act (18 U.S.C. sec. 2241), which makes it a federal crime to violate war treaties such as the Geneva Conventions. That is why the administration is busy at work trying to change that law so as to retroactively legalize their conduct -- because the Supreme Court all but branded them war criminals, and the consequences of that can be severe.
And now, a federal court in Michigan -- the first to rule on the legality of the President's NSA program -- just rejected all of the administration's defenses for eavesdropping in violation of FISA, effectively finding that the administration has been engaged in deliberate criminal acts by eavesdropping without judicial approval. And as I documented previously, Hamdan itself independently compels rejection of the administration's only defenses to its violations of FISA. Eavesdropping in violation of FISA is a federal crime, punishable by up to 5 years in prison and a $10,000 fine (50 U.S.C. 1809).
Thus, judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be -- and are required to be -- held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law -- criminal laws -- in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.
But of course, now the Right Wing Smear Machine is gearing up into Full Hysterical Mode. Already the ad hominem attacks against the judge, personally, are being blasted across the airwaves. She's a Liberal Black Carter Appointee. (They say that like it's a bad thing... lol....) She's an idiot. She's stupid. She hates America and loves Terrists. She should be drowned. And above all else, Preznit Bu$h should IGNORE THIS EVIL RULING!!!, until it can be appealed and their own Pet Neo-con Judges (TM) can strike it down. (Because you know Torquemada Gonzales will do everything he can to make sure the appeal is held in a "friendly" court, now don't you.)
Gads.
I think I'll let my old pal Mike Malloy have the last word here:
Finally. A federal judge in Detroit today ruled the obvious: The Bush Crime Family’s surveillance program is unconstitutional. Too bad the judge could not also rule it was stupid, ridiculous, and an all too familiar example of the Conservative hatred of justice, liberty and the rule of law. This decision so upset the neo-Nazis now running the country they immediately brought bogus Attorney General (bogus because he is supposed to enforce federal law, not destroy the US Constitution) Alberto Gonzales out of his crawl space to threaten and moan that this judge was obviously a terrorist who hates America and probably supports gay marriage.
The net effect of Alberto’s hangdog comments was to blow the Jon Benet Ramsey story completely off the telescreens - which, in its turn, had completely blown the Death in Lebanon and the Death in Iraq stories completely off the telescreens. Which, earlier, had blown the Death in Gaza story completely off the telescreen. Whooosh. Things are moving way too fast, here.
Once Alberto was finished warning that Armageddon was indeed at hand because of the ruling, the usual gang of Congressional Republican law-breakers - shabbily disguised as law-makers - immediately glommed onto the nearest Fox or CNN or NBC camera person and planted his (his, not her) shocked persona in the middle of the telescreen with warnings that the judge’s ruling meant the terrorists were on their way even as they, the Republican thugs, were warning of the impending disaster about to be visited on the hapless American citizens, destruction surely on a heretofore unprecedented scale, now that they, the Conservative neo-Nazis, could no longer violate, and intrude into, the private lives of (gasp!) American citizens!.
While all this drama was unfolding, President Chucklenuts was still va-rooooom, va-rooooom, va-roooooming a stationary motorcycle and hollering, “This is a hog! This is a HOG!” while deeply shocked and embarrassed aides tried to tell him that was yesterday’s photo op and the black and silver Harley was really back in the York, Pa., factory and not still between his manly legs regardless of what his meds might be making him think was happening.
Meanwhile, back in the real world, Alberto was insisting the feds were not going to take this assault on their assault on the Constitution lightly. No, Ma’m. This is war. On to the Justice Department’s Special Office on Stupid Black Female Judges Who Can’t Seem to Remember Their Place. Agents from that office were trying to find out if the judge had ever been on welfare or had unpaid gambling debts or was a Muslim or had a Muslim nephew perhaps, or knew any Muslims.
The drama continues....