A Federal District Judge in Detroit has declared the surveillance of communications between US and foreign entities by the NSA to be unconstitutional, and has ordered an immediate halt to the program. The ruling has already been appealed, and the Justice Department has obtained a stay from the appellate court that will allow them to continue the monitoring program during the duration of the appellate trial. Good discussions at PowerLine and Captain's Quarters, and be sure to read the comments left by Captain Ed's readers. The PowerLine guys suspect that the ACLU worked hard at "venue shopping" for this trial in order to find a sympathetic judge who would write them a love letter.
And check out today's Washington Post editorial, which pretty much trivializes Judge Taylor's decision as more of a rubber stamp for the liberal/ACLU agenda rather than a carefully reasoned legal opinion supported by the Constitution and legal precedent.
The Detroit Free Press profiled Judge Taylor last week, describing her as "a liberal with Democratic roots." And Debbie Schlussel has more on the ACLU lawyers who brought the lawsuit before the Federal Court. BTW, Debbie's piece is from January 2006.
And if you aren't sure what the whole fuss about the NSA surveillance program involves, I would recommend this thorough examination of the laws and court rulings relevant to the President's powers with regard to ordering warrentless wiretaps on foreign operatives for national security purposes. Long story short: the Supreme Court has not ruled directly on the issue, and has been careful to annotate that their decisions in other cases should not be applied to foreign surveillance. And Federal Courts (with the lone exception of yesterday's ruling) have come down unanimously in defense of the President's right to engage in warrantless surveillance of communications between US citizens and foreign operatives if there is a threat to national security.
Overall, the national security issue seems to be what is at stake. Supporters of the surveillance program argue that monitoring of communications between terror suspects and foreign operatives does not require a warrant because terrorism is a threat to national security. The courts seem to be clear on this. Opponents of the surveillance program seem to be arguing that a warrant is required, and most of their arguments center around the point that civil liberties are more at stake than national security. In other words, terrorism poses a lesser threat to national security than the Bush administration poses to civil liberties. Therefore, prior court rulings, which dealt with clear national security issues, are meaningless because terrorism does not pose an existential threat to the United States.
The Bush-bashers think that they now have another feather with which to decorate their impeachment cap. Of course the case for impeachment is even more flimsy than Judge Taylor's opinion, since there is no clear legal precedent that suggests beyond a reasonable doubt that the surveillance program was flat-out illegal. And even if an appellate court upholds Judge Taylor's decision (which is highly unlikely), no one in their right mind would buy a retroactivity argument that attempted to charge the President with committing a crime before a judicial ruling was issued and upheld.
And there is still the curious behavior on the part of the Democrats. They cheered yesterday's ruling, which attempted to completely shut down the NSA program, cold turkey. Yet they have been arguing that the NSA program is okay as long as the surveillance is done after a warrant is obtained. So what do they really support? Warranted surveillance or no surveillance at all? As the party that almost uniformly advocates a "law enforcement" approach to fighting terror, the Democrats need to answer that question. And even though top Democrats have known about this program from the beginning, they have yet to introduce legislation to defund the program or to strip the President of the power to oversee it.
This issue is far from over, and it will be fascinating to see how appellate courts rule and how the Administration defends this program to the American people.
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