NSA wiretapping unconstitutional

NSA wiretapping unconstitutional

Summary: Federal judge orders immediate halt to NSA's warrantless wiretapping program, ruling that it violates First and Fourth Amendments.

TOPICS: Government, Legal

Federal judge Anna Diggs Taylor ruled that the NSA wiretapping program violates the Constitution and ordered it to be stopped immediately. In a 44-page decision (PDF), the judge concluded: "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."

News.com reports that the Justice Department immediately signaled an appeal and requested a stay of the judge's order until the appeal is complete. The parties agreed to a stay until a Sept. 7 hearing.

A key issue in the government's argument was the "inherent powers" of the president, which at least in this decision got a solid thrashing.

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

Citing the Hamdi decision, Judge Taylor wrote "We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well.51 In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war."

The ACLU, which brought the suit, praised the decision, reported the New York Times:

“It’s another nail in the coffin of executive unilateralism,” said Jameel Jaffer, a lawyer for the plaintiffs with the A.C.L.U. And Anthony Romero, executive director of the A.C.L.U., said Judge Taylor’s ruling “confirms that the government has been acting illegally, in contravention of the Foreign Intelligence Surveillance Act and the Fourth Amendment.’’

In Congress, politicians lined up on party lines to praise and attack the decision.

Topics: Government, Legal

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  • NSA and Unconstitutionality

    Its good to know that the American judicial system is, even if ever so gradually, waking up to its traditional role as custodian and interpreter of the nation's constitution. Its about time judges got commited to the responsibility of their appiontments and abandon political sycophancy and coercion. Their impotency, except for the actions of a very brave few, is responsible for the executive recklessness that pervades and attacks American society today, as well as being responsible for the rot its system of government has decayed into. The nation should be wholesomely grateful to the Honorable Justice for having the courage to take the first step at subsuming what is in actuality, the very fangs of imperialism and a most draconian law that extinguishes individual privacy and liberty.
    • God help Justice Taylor

      You are absolutely right, of course; but rest assured the neo-conservative right will come crawling out of their worm holes to mercilessly attack Justice Taylor ? not her ruling, not the incontrovertible precedence in Constitutional case law, and not the fact that she exposes the blatantly obvious illegal and criminal actions of the Bush Administration. No, they will attack her personally.

      The Justice Oversight committee has already begun its nefarious and highly questionable exposition of Judge Taylor?s affiliation with a certain charitable organization that has, in the past, contributed funds to the ACLU. The implication is that her actions reflect a conflict of interest, which is totally ludicrous.

      This is one time, however, that I believe the unthinking appointees to the Supreme Court will have to soul-search their allegiances. Justice Taylor is right. She substantiates her ruling with legal precedent that extends to a period even prior to the birth of this great nation, a birth which was the product of too many years of injustice under a monarch who answered to no one.

      I hope Justice Taylor is as strong in her physical stamina as she is in her character.
  • Let's just go kill some people

    If the president said that and caried out the action, would he not be liable for murder. Of course he would. Being president means the we the people dictate his actions and he is not free to break any rule he pleases, but to obey the rules as we have defined them. If I am wrong then apeal any action against clinton because he was under orders from the presidential staff. LOL

    Good ruling judge!!!
  • Thank God

    Thank God for at least one judge with enough guts to stand against an evil government.
    The wiretapping and spying on citizens is one of the same stepping stones that helped promote Hitler and such ilk to power.
    Ole Man
  • I hope anti-wiretapping holds up.

    The executive, with the assistance of a compliant congress, or politburo if you like, and a stacked judiciary has been "unilateral" for far too long and along far too many policy dimensions.

    I doubt that the ruling will hold, although I certainly hope it does.

    For those who think it's just fine that the President should have such extraordinary powers, they should keep in mind that the next president will have the same powers and may not be so ideologically congruent. President Hillary Rodham Clinton, anyone?
  • Ruling

    I don't have a problem with a ruling by the judiciary. That is one of the checks to our system.
    I do however have problem when the judge giving the ruling has such close ties to the party that sought the ruling. Can anyone say "conflict of interest"
    • Is the preservation of liberty a conflict of interest?

      You have just described every judicial appointment ever made by either party. A judge must rule on the legality of an issue or upon its constitutionality based on precedence, the intent of the legislators or Founding Fathers, and always bearing in mind that we are a nation of laws which frequently need to be interpreted by calm, rational, intelligent, enlightened, thinking people who are not swayed by emotional considerations or irrational motivations stirred up by rabble-rousers. Take a moment to read the Constitution ? objectively, not argumentatively, then tell me if you can find any clause therein that permits the Executive to assume just any old power or whimsical exercise of dictatorial permissions.

      It really makes for some fabulous and inspirational reading.
  • NSA Wiretapping

    I think we are going to have to re evaluate some of these things in light of the new enemy we are facing. I for one feel that if wiretapping would have prevented 9/11 we should have had it in place long ago.
    Apparently it was wiretapping and special surveilance methods that allowed the terrorists in England to be caught just days before they were to blow 9 or 10 aircraft out of the skies.
    We indeed all have rights to privacy, but when our civil rights are being used to kill us, perhaps those of us with nothing to hide should not be in a panic if we are scrutinized. The ACLU is more interested in the letter of the law than the protection of the US citizens.
    Depriving the People trying to protect us of the means to do so is a dangerous precedence. Some innocent Americans will pay dearly for this decision down the road.
    • Spaghetti Cowboy logic

      I beg to differ and you should know better as to the problem inherent in the illegal wire tap is that it may find some ill fated precedent if Congress continues to refuse to get off their duff and not do the people business? Namely by writing some law so that the President is not forced to fall back upon the thin ice of Article II. I think the real danger is if this executive decision is allowed to stand and thereby setting a precedent for the executive branch in future generations to flagrantly disregard the constitutional restraints upon the office. This course leads this nation ultimately down the dark path of tyranny far worse than any Arab terrorist might conjure from the depths of our national psyche while in hiding under our the bed of our darkest nightmare. This President has clearly been acting upon questionable counsel? This nation and our men in uniform deserve better... Congress needs to do the right thing and write some law to provide the President the constitutional tools that satisfy the demands of both the law and security burden of the present situation and in addition that protect future generations from the real problems arising from terrorist of any technological totalitarianism, from enemies both foreign and domestic.
      • ...by writing some law ...

        >> ... by writing some law so that the President is not forced to fall back upon the thin ice of Article II... <<

        Good grief! The last things we need is for Congress to compound its sycophantic responses to the Executive! Judge Taylor points out that the Executive has numerous resources to rely on, and that we do not preserve liberty by suspending it!

        By enacting the infamous FISA statute, Congress opened a floodgate of potential abuses by the Executive branch. By not reining in the excesses of the Regan Administration, they allowed a very dangerous precedent to establish itself. That particular President conscientiously and deliberately violated specific statutes passed by the Congress specifically aimed at preventing the President from intervening in certain internal affairs of foreign governments (?Iran-Contra?). The country, and specifically its elected representatives, turned its head aside and allowed Colonel Oliver North to act as the scapegoat. I do not care how revered or worshipped that senile old codger was, he stood in direct violation of the Laws of the United States ? which he, as the Chief Executive of this great Republic was entrusted by the Constitution to uphold!

        Bush et al swore solemn oaths, invoking the words ?So help me God?, that they would preserve, protect and defend the Constitution. Ripping its provisions to shreds is not providing for its preservation!

        By enacting the PATRIOT Act, Congress, itself, stands in contravention to the expectations of our Constitution. When one reads the Bill of Rights, one cannot avoid noting that the Founding Fathers stated unequivocally that Congress shall pass no law restricting the freedom of American citizens to enjoy those freedoms, which the Founders insisted were included in the Constitution before they would ratify the document. In other words, without the enunciation and unmistakable intention that this new experiment in government by the people must guarantee the preservation of those unalienable rights, clearly delineating in the Declaration of Independence.

        The Founders did not say: Congress shall make no law regarding the establishment of the freedom of religious expression UNLESS we are under some sort of threat from without; it did not say that it could pass laws depriving us our liberties if the President gets a feather up his ...er ah ? bonnet that it?s easier and more convenient to fright crime and enemies if we don?t have to be bothered with those pesky little liberties and freedoms that for some weird reason found their way into the Constitution.

        What?s more, throughout our history as a sovereign nation, we have never had to abrogate civil liberties during time of war! In a great democracy such as ours, we do not need to invoke totalitarianism to preserve our security! As a matter of fact, our nation will remain stronger and more invincible because of our democratic principles, not in spite of them!

        Thank God some one finally had the courage to put a halt to the run away attempts at power grabbing of the Bush Administration. Her ruling is soundly based on the principles of Constitutional law and the precedents established by justice throughout the history of this country. It is not partisan in any manner. Nor, in spite of Conservative assertions to the contrary, it is not a ruling based on ideological political leanings. It has nothing to do with Liberal or Conservative, Democrat or Republican; and the initial responses by the boot-licking hacks who depend on the patronage of Bush, et al, which attack that ruling, and call into question the judge?s integrity, are further examples of this Administration?s arrogant disregard for civility and respect. To those people, anyone who expresses any sort of opposition to the President, his ideas, policies, and actions deserves of nothing less than absolute castigation and denigration.

        We Americans have always been proud of how we honorably disagree with each other. Like true men and women of enlightenment, we have prided ourselves in arguing the issues on their merits. Under the Bush Administration, personal attack has replaced intellectual reasoning. Greed and self-aggrandizement have supplanted our natural tendency as a generous people and now we find that when it comes to a matter of justice, the only question deserving attention is: ?How much justice can you afford??

        Ask Congress to enact new laws that expand the powers of the Executive, simply because they do not know how to utilize our current resources and assets to their fullest? Hell, NO! As is, they feel no qualms about mendaciously invoking secrecy for reasons of National Security. Place increasingly fewer checks and balances on an Administration which has shown its total disregard for truth and honesty? Absolutely NOT!

        The Department of Justice is much to quick to easily and glibly give its assurances that it will exercise diligent care in protecting the privacy of its citizens, then with even greater celerity refuses to provide to the Congress specific information it pledged when the PATRIOT Act was under consideration, all the while citing the need for secrecy in the name of National Security.

        One must carefully consider the motivations of the Intelligence community! What is so difficult about acquiring those warrants which the DoJ feels are little more than nuisances in the exercise of law enforcement? The top-secret committee of judges established by FISA has shown that it never calls into question the legitimacy of the allegations of probable cause asserted by those parties seeking court warrants to legitimize their blatant disregard for the laws of the land. Why do they seek the power to circumvent this one (ever-so-fragile) establishment of an oversight to protect against abuse? And why is Congress so anxious to comply?

        At this juncture in the course of the Great Republic?s lifetime on this planet, I predict that, at the current rate of civil liberties seepage, our Constitution will be totally meaningless in less than fifty years. And no one will have been called to answer to its demise.

        God Bless America.

        P.S. Would it really be such a shame for the President to have to "fall back" on Article II of the Constution. Article II represents everything the President needs to be or should be, and it states in so many words that the President cannot assume any powers not specifically granted by the Constitution. It doesn't say that only Congress can do that; or that perhaps if the Legislative and the Judical join forces it would be okay to grant powers not specifically granted by the Constitution. Seems to me a lot of people need to curl up with a copy of that document and re-familiarize themselves with it.
        • Try Reading History (before serving even more twisted spaghetti logic. )

          You might want to try reading up on your history<a href="http://www.civil-liberties.com/pages/did_lincoln.htm">President Lincoln suspended both Habeas Corpus</a> during the civil war and also allowed troops to be billeted in the homes of private citizens (Just in case while you're curled up with your copy of the Constitution you might want to check out Third Amendment in the Bill of Rights. I'm certainly not defending Lincoln's illegal acts to justify President Bush, two wrong do not make it right... Clearly the powers granted under Article II have elapsed and new law are required for this kind of war or Excutive actions... ever how anyone may try to frame the situation. You cannot defend the document that gives you legal authority by destroying it... That's just more twisted spaghetti logic.
    • Do not sell out so easily!

      To the contrary ? it has been covered repeatedly in the press that wiretapping played almost no part, it was information provided by an informant. Where wire-tapping was utilized, it was done so well within the purview of English law.

      9/11 could have been prevented if the powers, agencies, and strengths of our intelligence community had been utilized effectively. As Justice Taylor points out ? the resources are in place, well established, and quite workable ? as long as those responsible for the security of this great nation are not too lazy or complacent in the exercise of their duties.

      Stop succumbing to the fallacious and lame excuses proffered by the Bush Administration, designed to make everyone but George Dubya look like a partisan pacifist. In the war for the preservation of our civil liberties and national security, do not take away my civil liberties, for that will most assuredly lead to the disintegration of our national security.

      If this country truly lacked the necessary tools for its safety and preservation, I would be the first to advocate the implementation of whatever resources might be required. But the point is: we are strong now, we have been strong in the past, and we shall continue to be strong. We do not need to scramble under our beds and sacrifice our sacred, unalienable rights on the altar of the gods of fear and insecurity. Benjamin Franklin summed it up ever so eloquently: ?Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.?

      Franklin Roosevelt echoed this in his Four Freedoms speech, wherein he stated: ?No one can tell the exact character of the emergency situations that we may be called upon to meet. The nation?s hands must not be tied when the nation?s life is in danger? Those who man our defenses and those behind them who build our defenses must have the stamina and the courage which come from unshakeable belief in the manner of life which they are defending. The mighty action that we are calling for cannot be based on a disregard of all the things worth fighting for? The basic things expected by our people ? are: Equality of opportunity for youth and for others, jobs for those who can work, security for those who need it, the ending of special privilege for the few, the preservation of civil liberties for all ?? etc.

      THE PRESERVATION OF CIVIL LIBERTIES FOR ALL does not curtail our power to provide for the common good, nor does it tie our hands.

      For those of you who think you love this country more than Franklin or more than FDR, let us see you surrender all of your constitutionally guaranteed rights (speech, press, assembly, petition redresses for wrongs, religion, bear arms, protection from unreasonable search and seizure, against self-incrimination, against double-jeopardy, against involuntary servitude, -- etc ? go read it yourself!)

      The only thing a reasonable man can ask is that everyone take the time to weigh the pros and cons of eliminating our Constitutionally guaranteed rights; ask questions of one?s Congressional Delegation, and read up on American History.

      Note that partisanship should hold no position of influence, here. Almost every American President had to be curtailed by Congress from attempting to assume powers that were not his to legally assume. Democrat Roosevelt tried to pack the Supreme Court, just to get his way. Democrat Harry Truman was told that he held no authority to nationalize the steel industry. Nixon had to be held accountable for breaking the laws of the land ? simple common felonies which anyone else would have to serve time for. Etc.

      Do not be so quick to surrender what so many Americans gave their lives for! You do a great disservice to those courageous men who died so that the rest of us will not have to surrender our rights and freedoms.
      • Damn Right!

        I am suprised and delighted to read some enlightened opinion about the Bill of Rights on a ZDnet forum.