Darn. If we have to follow the constitution the terrorists have won.

Hooray sensibility!

They never had a chance on the merits. It was always laughable. That doesn't mean they didn't have a chance for state-secrets dismissal, jurisdiction issues, arcane proof-of-injury requirements, and so on, but if and when a court ever saw fit to address the essential question - is the program legal? - they were and have always been f***ed.

We are at war. We will always be at war. We have always been at war. If our glorious big brother doesn't have the power to ignore the rights of citizens he won't be able to fight the war. That is unthinkable because we are at war. We will always be at war. We have always been at war.

Bush's likely response- "Liberal activist judge Taylor has made her decision, now let her enforce it."

Glasnost is correct- there was simply no way that the warrantless wiretapping conduct would withstand constitutional scrutiny. Now, I wonder can the Administration send this matter straight to the Supreme Court, or will it have to go through the Fed'l appellate Court first-. If it goes to the Supreme Court the ruling will be tossed as the Constitution has been irrelevant in that august body for some time now. Also, will NSA cease and desist- or continue during the appeal- I think that have to file a Motion to stay enforcment of the judgment to continue warrantless wiretapping.

Ha! She was nominated by Jimmy Carter in 1979 at the height of his malaise. Nothing to see there: move on to the capture of that little girl's killer.

but Al told me it was completely Constitutional!

does this mean Al's a liar ?

Doncha understand? The terrorists hate our freedom, so George Bush needs to destroy our freedom, and then the terrorists will stop hating us! Dumb liberals!

Shut down the NSA program now, and we can move on to dismantling the stupid Patriot Act. Most of the "threat" is just hype anyway.

SP:

I imagine that's exactly what Bush will do (if not say). It's time we throw out the Republicans AND any Democrats who won't grow a spine to oppose them! The neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress. Hip, hip, hooray for Judge Taylor!

Actually, I have reconsidered- this ruling is sponsored by K. Rove and Co. - Now the Republicans have an election year issue- activist judges appointed by Democrats- "if you want judges who will rule that the government cannot protect its citizens, vote for a Democrat." Shallow, cynical, but, oh so effective... especially effective because the Democrats cannot effectively defend without sounding "soft" on terror. Nicely done Karl...damn he's good.

Awww, and after Arlen Specter sacrificed what's left his reputation rolling over for this Administration...

Seriously, though, this development is no surprise. Bush's wiretaps were illegal on their face. The Administration's assertions of legality were always perfunctory, but endorsing changes to the laws to make the program legal was a tacit admission they were breaking the law.

THANK GOD!! No more shitting on OUR constitution by the current king. Yippy

I'm going to leave the US now! These reprehensible judges must be shot!

Out on Bond:

How about we start our own True Democracy and Social Progress Party?

I may be too naive, but I still cannot understand the reason for the administration's insistence that it needs to be able to do this. It's not as if Bush is going to be the President for ever.

Was the ruling that the program was unconstitutional or that it violates FISA? If unconstitutional, that could not be changed through legislation (contra Kevin), although it certainly could be overruled by a higher court. The AP blurb says "unconstitutional," so I guess I'll go with that until more info is available.

Augustus- can we hire Karl?

Sigh...why does U.S. District Judge Anna Diggs Taylor hate America?

"We are at war. We will always be at war. We have always been at war. If our glorious big brother doesn't have the power to ignore the rights of citizens he won't be able to fight the war. That is unthinkable because we are at war. We will always be at war. We have always been at war."

WTF is this guy on? We will always be at war and we have always been at war? What the hell is that except plain stupidity. I for one am not scared enough to hand my rights over to the government. Unlike neocons who are so willing, here take my rights, I don't care... yea

For the right price ; )

I'm going to leave the US now!

Please do, and don't take your computer.

These reprehensible judges must be shot!

Another blow for freedom and the rule of law.

Augustus- if he can be hired, any price is right. Think big, man, think big

dee, I think he's being facetious. It's basically a paraphrase of 1984, stating that Oceania is at war with Eurasia, and thus it had always been at war with Eurasia.

(dee - Ron was quoting George Orwell).

Sorry I didn't catch that 1984 reference.

It's not as if Bush is going to be the President for ever.

If the unitary executive is not subject to the rule of law or the limits of the constitution in time of war he would be immune from following election laws right?

Hey Dee, not to worry. You just forgot to account for the sarcasm factor on the board.

Of course, the more crazy things get, the harder it is to tell the satirists from the trolls.

Incidentally, does anyone remember the old Doonsbury cartoon where Trudeau quotes a poll of scores of women gushing about how Dan Quayle would make a great VP because he's so HOT! The last frame contains an asterisked note that the poll did not take into account the sarcasm factor.

One of the great Doonsbury jokes of all time.

And now back to regular programming.

klyde, the modern Republican party is malignant and mendacious, but not necessarily stupid. I think they'll push the unitary executive virus as far as they can, but they also realize that the Republican party would be dead for eternity if they overtly (versus their current covert efforts) gutted national elections.

Kevin wrote: Obviously this will be appealed, and may soon be made moot by new legislation in any case.

But Kevin, if it's been ruled unconstitutional, won't any legislation authorizing it also be unconstitutional?

what's interesting is that the ruling appears to have been on Constitutional not FISA grounds.

That actually almost certainly means that it will be overturned on (expedited) appeal as the Constitutional objections to the program (whatever it is, we don't actually know that it's "wiretapping" or anything else...newsleaks are not evidence) were always the weakest.

I'll also point out that given sufficient forum shopping (which is exactly what happened in this case) it was a foregone conclusion that a plaintiff would eventually find a district judge willing to rule this way.

And now that I think about it, the Constitutional issues won't be reached on appeal, it'll be overturned and dismissed for lack of standing.

For the record, the concern troll Augustus's emoticon style -- ; ) -- a space after a semicolon before the close paren, is eccentric. Nearly everyone who uses smilies excludes a space between the colon/semicolon and the close/open paren.

And the only other person I've *ever* see use that emoticon style *anywhere* in cyberspace is ... *drumroll please* :

Thomas.

Another moniker outed :)

Bob

but not necessarily stupid.

What makes you say that?

Ok Snark aside. Lets say for the sake of argument OBL had a spectacularly successful attack just before the 08 prez election. Lots of death and destruction in DC. The capital building in flames lets say and lots of salons dead. What would stop the unitary executive from for the sake of national security cancelling the upcoming elections for the sake of continuity just until we secure the 'homeland' and bring the perps to justice.

OK that's farfetched. How's this, they stole the 00 and 04 elections and are already working voter suppression and voter roll purges for 08. They know Dems don't fight back when this happens. So when they steal 08 and another rethug is in office the same unitary executve powers are in place for john maverick (sic) mccain.

OK that's farfetched.

No one ever expects the Inquisition.

Nathan,

As to grounds for the ruling, you are mistaken, the ruling is on both Constitutional AND FISA statutory grounds.

See http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf

As to forum shopping:
A. you present no evidence of it.
B. your assertion that you can use it to get any ruling is overly simplistic and false on its face, since there are many limits to the practice even when utilized.

As to Standing:
That is a difficult issue and might be used to avoid the Constitutional issues. I dont claim to already know how the courts will decide on this issue as you do.

Sorry to ruin your day, Thomas, but the judge ruled that it could be determined based entirely on public disclosures by the government that the NSA program violates the First and Fourth Amendments, the Separation of Powers Doctrine, **as well as*** FISA and something called Title III I've never heard of.

Illegal and unconsitutional in the same ruling.

I realize this decision will feed the Republican "liberal judges" and "defend Amurika" themes, but I'm gratified anyway.

Sometimes, it's good just to see the right thing done. The simple fact is, this program was in clear violation of the constitution, and the laws that the president is sworn to uphold. It sends up down a path that could do more damage to our freedoms that the terrorists that hate them.

Now that we've established that George Bush, Dick Cheney, Karl Rove and their henchmen are all god-damned criminals, could we please get on with impeachment?

But the judge is a black woman judge from Detroit appointed by Jimmy Carter ......... she don't count with serious War on Terror folk. Just consider the source, and scoff.

Catch22:

"As to grounds for the ruling, you are mistaken, the ruling is on both Constitutional AND FISA statutory grounds.
See http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf"

Correct. That's why I said "appears to have been"...I was going off of first reports.

"As to forum shopping:
A. you present no evidence of it."

Um, this was in Detroit, why?

"B. your assertion that you can use it to get any ruling is overly simplistic and false on its face, since there are many limits to the practice even when utilized."

I never said that. I said that it was a foregone conclusion that forum shopping would work in this case. I certainly didn't mean to claim that you could pull it off in any matter.

"As to Standing:
That is a difficult issue and might be used to avoid the Constitutional issues. I dont claim to already know how the courts will decide on this issue as you do."

Its a prediction. And I have a darn good track record on that score.

Was the ruling that the program was unconstitutional or that it violates FISA? If unconstitutional, that could not be changed through legislation (contra Kevin), although it certainly could be overruled by a higher court.

This is not entirely true. The existence of legislation is a relevant fact in the analysis of whether or not a warrantless search is "reasonable", so the basis of a ruling that a particular type of warrantless search not authorized by legislation is unconstitutional can be rendered inapplicable by subsequent legislation.

Now, the opinion supporting the permanent injunction in this case found several Constitutional violations. Both the Fourth Amendment and Separation of Powers violations could clearly be affected by subsequent legislation, though its not entirely clear that the First Amendment violation found could be neutralized that way. The First Amendment finding, I'd say, is the least likely to survive appeal.

"I for one am not scared enough to hand my rights over to the government." DEE

Dee, I'm on your side. As somebody said the crazier things get the harder it is to tell the satire from heartfelt beliefs.

When the Dick Cheney says "be afraid, be very afraid," Attorney General Gonzolas says "we don't have time to ask a court for a warrant" or one of the Yoo boys says "the only part of the Constitution that counts (during this period of eternal war)is the clause making the President ommander-in-chief" they aren't being funny. They are deadly serious, and they are stone cold scary.

Like I said, I am on your side. It is nice to find people who still think real freedom is more important than false security.

what's interesting is that the ruling appears to have been on Constitutional not FISA grounds.

The ruling here found "that the TSP violates the [Administrative Procedures Act]; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law."

And both the Fourth Amendment and Separations of Powers findings cited the violation of both FISA and Title III of the Omnibus Crime Control and Safe Streets Act as part of the reason that the TSP was unconstitutional.

Ok, I've now skimmed the decision:

the section on standing is very interesting. it basically goes like this: 1. the President has said we are intercepting communications with al quaeda; 2. plaintiffs assert that they are communicating with al quaeda; 3. therefore plaintiffs have a prima facie case that the government is intercepting their communications.

the plaintiffs' claim to standing is stronger than I thought because they concede they are communicating with terrorists.

however, that admission (which was necessary to have a shot at establishing standing) is going to be very interesting in the "court of public opinion"...very easy for Republicans to play it this way: "People who admit to communicating with al-quaeda have managed to get a liberal judge to find that their communications with al-quaeda are constitutionally protected."

This decision cuts both ways folks. (and I still think they won't find standing on appeal.)

Its a prediction. And I have a darn good track record on that score.

A "track record" is demonstrable. So show us the evidence.

Baldrick:

The ruling was for an injunction going forward.

Out on Bond wrote: Now the Republicans have an election year issue -- activist judges appointed by Democrats

Yep. This judge was appointed by Jimmy Carter and promoted by Bill Clinton. From the judge's biography:

In 1979, Anna Diggs Taylor became the first black woman judge to be appointed to the United States District Court for the Eastern District of Michigan. Nineteen years later, she became the first black woman Chief Judge for that circuit as well.

cmdicely:

see the Plame matter.

Obviously this will be appealed, and may soon be made moot by new legislation in any case. But it's still encouraging that at least a few judges can still make sensible rulings these days.

Yes, and regardless of what happens on appeal with regard to the status of the program itself, it's encouraging that the judge appears to have rejected at least some of the state secrets privilege claims made by the administration. Recall the article in Slate you linked to a while back noting how troublingly deferential judges tend to be to such claims of the privilege.

By far, the most powerful constitutional argument is under the 4th Amendment. In Keith, decided in 1972, the Supreme Court held that warrantless wiretaps by the government against U.S. citizens is unconstitutional under the 4th Amendment. Period. No ambiguity. Keith came after a line of cases in the late 60's that foreclosed almost all warrantless eavesdroppinng and led to the "Wiretapping Statute," enacted in 1968. It's good, strong law.

The Administration knows this program is a loser if it's ever examined on the merits. That's why they're trying to prevent judicial review!

Thus, the big issues are: standing and the state secrets act. It takes a little dancing to show how the plaintiffs were harmed by the program (thus establishing standing). I suspect this is the main weakness.

I think my FAVORITE part of the ruling is how the judge used the big, fat mouths of the Bushies to build her case. If the Administration had bothered to maintain a bit of discipline - just a touch of plausible deniability - the state secrets claim would have prevented details about the program from reaching the court. Instead, they bragged about the program to make Dems look weak. In doing so, they publical provided all the details the plaintiffs would need to bring their case.

Idiots.

see the Plame matter.

What about it?

actually, the 4th Amendment grounds have generally been considered the weakest (assuming standing is established).

why? there's a line of caselaw saying that it doesn't apply to international communications.

Thus, the big issues are: standing and the state secrets act.

There is no "state secrets act".

"As to forum shopping:
A. you present no evidence of it."

Um, this was in Detroit, why?

That's evidence of forum shopping? Laughed out of court much?

the plaintiffs' claim to standing is stronger than I thought because they concede they are communicating with terrorists.

Nice spin. Of course, the plaintiffs assert nothing of the sort, but I long ago gave up expecting honesty from you. What the plaintiffs actually assert is:

"they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations"

In addition to a refresher course on the rules of evidence, Nathan appears to also need some remedial work on the difference between "proven" and "alleged".

Again, I must ask, are you really a practicing atty, or just some pre-law wanna be?

cmdicely:

I predicted the following:

A. There would be no IPA indictments.
B. No Espionage indictments.
C. No indictment of Rove or Cheney.
D. Possible minor perjury or obstruction indictments of lesser fish.
E. That no organized conspiracy would be found. (And since Armitage was Novak's source it's clear that there wasn't.)

actually, the 4th Amendment grounds have generally been considered the weakest (assuming standing is established).

why? there's a line of caselaw saying that it doesn't apply to international communications.

Generally? I don't think so.The fourth amendment argument that the searches are unreasonable given that they are expressly prohibited by statute has been considered pretty much the main viable argument (the Fourth Amendment/FISA combination).

The more powerful (if a Court adopted it) position that the searches are outside the power of government (regardless of the statute law) under the Fourth Amendment without warrants is the argument that is widely considered weak (and, also, unless I'm mistaken, the thing that the line of caselaw actually points to not being the case for international communications: not that the Fourth Amendment does not apply, but instead that searches of international communication, especially in the area of national security, do not generally require a warrant under the Constitution considered in isolation from particular statutes to be "reasonable".)

Nathan: the plaintiffs' claim to standing is stronger than I thought because they concede they are communicating with terrorists.

I'm no lawyer and I don't even play one on TV, but I did a quick search on "al Qaeda" in the rulling and didn't find any such admission. Please clarify.

The only of your Plam predictions that can be evaluated prior to the official conclusion of the investigation is D, where other than debate over whether this is really a "minor" perjury or obstruction charge (I'd say it wasn't) it appears to be true, and part of C, where it appears (though the only actual source seems to be Rove) that Rove won't be charged.

That's really not a whole lot of a track record of predictions to justify holding yourself up as an authority making predictions without argument to justify them, and its not anything of a track record at predicting judicial rulings so is entirely inapplicable to the predictions you've made in this thread.

Disputo:

of course that was how the defendants phrased it. Do you think that they would automatically concede that the people they communicate are terrorists? No, but they do contend that they are people believed by the U.S. to be terrorists (i.e. al quaeda members)...see footnote 20.

See page 13. Plaintiffs state that they converse with suspected terrorists.

In addition, the Court notes that the TSP covers communications with persons reasonably believed (the Court's words) by the U.S. government to be terrorists and that the Plaintiffs assert that they communicate with such persons.

Here's the rub, if the plaintiffs don't assert that they are communicating with persons reasonably believed to be terrorists, the suit falls to Laird. So they had to make that assertion.

I'm no lawyer and I don't even play one on TV, but I did a quick search on "al Qaeda" in the rulling and didn't find any such admission. Please clarify.

Nathan is lying.

"(the Fourth Amendment/FISA combination)."

ok, we agree on that, technically speaking. But in shorthand, that's usually referred to as the FISA issue.

what I meant was that the 4th Amendment, independent of FISA, argument is considered weak. which you concede. I'll note that owenz (who I was responding to) was not talking about FISA.

"That's evidence of forum shopping? Laughed out of court much?"

Actually, the choice of venue is exactly where I would start such an analysis.

I'm no lawyer and I don't even play one on TV, but I did a quick search on "al Qaeda" in the rulling and didn't find any such admission. Please clarify.

Clearly, Nathan is spinning this:

Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations. In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients.

and this footnote:

See generally, in a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. (Exh. J, Hollander ). Attorney William Swor also provided a similar declaration. (Exh. L, Swor Decl. ). Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq. (Exh. K, McKelvey Decl.).

And just ignoring words and phrases like "the United States government believes", "suspects", etc.

cyntax: see my comments of 2:29 above.

cmdicely:

"The only of your Plam predictions that can be evaluated prior to the official conclusion of the investigation is D"

I'm sure you'll be still be saying this in 3 years.

of course that was how the defendants phrased it. Do you think that they would automatically concede that the people they communicate are terrorists? No, but they do contend that they are people believed by the U.S. to be terrorists (i.e. al quaeda members)...see footnote 20.

Do you expect any lawyer to concede the guilt of their client as alleged by the gvmt? Is a gvmt allegation the equivalent of a proven fact?

Really, this line of argument is beneath someone who even pretends to have a legal education.

However, I have no doubt that this will be the wingnut spin of the case. Thx for giving us a preview of the talking pt.

E. That no organized conspiracy would be found. (And since Armitage was Novak's source it's clear that there wasn't.)

Nathan is wrong, on two count, here. First, it's a rightwing talkingpoint to say that Armitage was Novak's source in order to exonerate Rove, but it's misleading. The fact of the matter is that Novak had (at least) two sources, Armitage and Rove. Rove was a source for Novak. Period. Now, the utter casuistic bs by which Rove himself is trying to clear himself politically and morally is by suggesting that he didn't know that he was a source for Novak, which is laughable. But even he acknowledges having been one of Novak's sources.

That said, it is true that Armitage was Novak's first source, and it is unlikely that Armitage was participating in an organized effort to get the Wilsons. But that by no means means there was no such organized effort in the White House. It is perfectly possible - and I believe - that there was such an organized effort, which intersected with whatever idiocy it was Armitage was doing in blowing Plame's cover with both Woodward and Novak.

At the very least, the fact that Armitage was one of, and the first of, Novak's sources by no means makes clear that there was not an organized effort to out Plame and get the Wilsons. Say, for instance, Armitage had never talked to Novak. Libby was still talking to Miller about Plame - and in fact he did so twice before he learned from Rove that Novak was going to be publishing about Plame.

ok, we agree on that, technically speaking. But in shorthand, that's usually referred to as the FISA issue.

what I meant was that the 4th Amendment, independent of FISA, argument is considered weak. which you concede. I'll note that owenz (who I was responding to) was not talking about FISA.

I don't think that's clear at all; on the one hand he is clearly referring to what he approves of and finds strong in this ruling, where the Fourth Amendment aspect of the decision is clearly the "Fourth Amendment/FISA" version, not the "Fourth Amendment/limits on the power of government regardless of statute" version.

OTOH, Owenz, also referred back to other related cases which drew a brighter line in certain cases and are of the "Fourth Amendment/limits on the power of government regardless of statute" type. At best, what owenz thought was strong here is ambiguous, and you, like a good spin doctor have responded by resolving any ambiguity in the way easiest to argue against.

of course that was how the defendants phrased it.

So you concede that you lied when you stated: "they concede they are communicating with terrorists."

if the plaintiffs don't assert that they are communicating with persons reasonably believed to be terrorists the suit falls to Laird. So they had to make that assertion.

Reread the decision. The plaintiffs never make that claim. Furthermore, the word "reasonably believe" never appears in the decision. What does appear is in GWB acknowledgement that the gvmt is engaging in warrantless tapping is his assertion that there are "reasonable grounds" to suspect (in part) that "a party to such communication is a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates." This is merely to show that the gvmt is engaging in tapping of people they "suspect" to be terrorists (which is all Laird calls for), not to demonstrate that the plaintiffs *concede* that the persons are reasonably believed to be terrorists.

You're twisting words out of context here, instead of doing the honerable thing and admitting that you were wrong.

Nathan says:

Baldrick:

The ruling was for an injunction going forward.

No, if you had read the ruling as you claim, you would know that it states that the ratfucking Bush administration has been actively violating the constitutional rights of the plaintiffs for at least 5 years. Regardless of the order to cease and desist, the fact remains, and I still eagerly anticipate first impeaching the bastards and then seeing them in orange coveralls.

Also, as Cyntax at 2:26 points out, your claims that the plaintiffs had been communicating with al Qaeda is just more wacked out conservative crackhead fiction--it would be nice for your side, but it just isn't true.

Why, oh why, are conservatives so shamelessly stupid?

The court found the law unconstitutional. Unly a reversal on appeal of a Constitutional amendment can reverse the effect of her finding. Legislation cannot amend the Constitution; only an amendment can do that.

Jeff: Rove was not Novak's source. Period. Both Rove and Novak agree that Novak mentioned to Rove that he had heard Wilson's wife sent him to Niger and Rove said "You know that too" or words to that effect.

You completely ignore Novak stating that the CIA spokesman was his real second source.

ok, yes, it is theoretically conceivable that Cheney was orchestrating a conspiracy to "out" Plame while Armitage (who dislikes Cheney a great deal) was somehow already bumbling into revealing Plame's name.

But, Occam's razor dictates that's less likely.

I'm sure you'll be still be saying this in 3 years.

If in three years your best argument that you have a track record of accurately predicting judicial decisions is still the same bunch of predictions (none of which directly concern judicial decisions) about the Plame investigation, I'll be laughing too hard to post much more than "LOL" or maybe "ROTFL" in response.

Disputo:

Thanks for making my points. But you're too obtuse to see that.

Anyway, try reading the decision.

To avoid Laird, the Court had to find that Plaintiffs were conversing with individuals the government "reasonably believed" (not just "alleged") were terrorists.

If this ruling stands, it would be illegal to intercept the call of a terrorist calling from overseas to give an attack order, without a prior warrant to that effect. This means you'd need to know which phone he was calling to, and from.

It's of course next-to-impossible to know this given the usual security measures al-Qaeda and related terrorist groups take -- the use of satellite phones, disposable cell phones (like the ones the 'young men' in Michigan and Ohio were buying up), etc.

This is true even if you have reasonable belief as to who a terrorist is in (e.g.) Pakistan, Saudi-controlled Arabia, etc. Even if you know who he is, it's difficult to isolate him to a single phone, and you need, according to this ruling, some idea of which phone. According to this ruling, you can't review the outside 'packaging' of the telephone conversations (where from, when, how long, to where) to see if it matches a profile that fits your terrorist candidate.

If the terrorist is reasonably smart, he's using a new disposable cell phone every week. Without the newer NSA methods, you'll never get a lock on him.

If this ruling stands it becomes very difficult to intercept the calls from known terrorists. That clearly makes us less safe. Is that what y'all want?

cmdicely:

um, that in a long spiel on the 4th Amendment owenz manages to avoid ever mentioning FISA indicates otherwise. I don't see it as very ambiguous. You certainly don't give me the benefit of the doubt.

Disputo, cmdicely:

um, see page 13. "reasonably believes" is exactly the wording used. bye bye.

Baldrick:

you're confusing the holding with the legal effect.

once again, p. 13 and following all.
here is how the Court found standing:

A. The goverment has admitted that is engaging in the warrantless interception of international communications with persons it reasonably believes to be terrorists.
B. Plaintiffs claim that they are in communication with such persons.
C. Therefore Plaintiffs have a prima facie case that such communications are being intercepted.

That's exactly how the Court avoided Laird. And if you don't understand why the Court had to avoid Laird you won't understand why the Court had to find the above.

And here's what you don't get:

If you don't claim B. "Plaintiffs claim that they are in communication with such persons."

then Plaintiffs don't have standing.

in other words, if Plaintiffs don't assert that they are communicating with persons reasonably believed to be terrorists by the government, then Plaintiffs don't have standing and the suit is dismissed.

so, everytime you insist on the speculative "alleged" part, you are making the government's claim that there is no standing even stronger.

you do realize that that goverment's briefs were making the claim that the Plaintiffs didn't actually know if they were conversing with terrorists and therefore Laird precluded their suit? you do realize that, right?

but thanks for making the government's argument for them. idiots.

Disputo or cmdicely:

Once you are finished with Nathan, I read the opinion but I'm still confused why the Court never even dealt with the "public interest" of catching terrorists before they kill the public?

Nathan: Its a prediction. And I have a darn good track record on that score.

BWA HA HA HA HA HA HA HA HA!

Nathan asserts with no evidence:

Thanks for making my points. But you're too obtuse to see that.

LMAO. Whatev, as the kids say.

To avoid Laird, the Court had to find that Plaintiffs were conversing with individuals the government "reasonably believed" (not just "alleged") were terrorists.

LOL. Please show me in the decision where the words "reasonably believed" appear. Please. You quote them, so they must appear there, right? You wouldn't make that up, would you, because of course if you did, that would make you a liar.

Of course, this is all besides the point, which is that you lied when you asserted that the plaintiffs "concede they are communicating with terrorists." They did not. If you had any integrity you would retract that statement.

Talk about obtuse. I have to admit, though, that you are one of the better trolls.

"See generally, in a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. (Exh. J, Hollander ). Attorney William Swor also provided a similar declaration. (Exh. L, Swor Decl. ). Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq. (Exh. K, McKelvey Decl.)."

Actually, these affidavits are very careful not to state who is doing the suspecting or alleging. (Which is why they should have run afoul of Laird.)

Steve White: If this ruling stands, it would be illegal to intercept the call of a terrorist calling from overseas to give an attack order, without a prior warrant to that effect. This means you'd need to know which phone he was calling to, and from.

How do you come to this conclusion? If the wiretapping is done in accordance with FISA the warrant can come after the fact. I might have missed it in the ruling but I didn't think the judge ruled the FISA court unconstitutional.

To avoid Laird, the Court had to find that Plaintiffs were conversing with individuals the government "reasonably believed" (not just "alleged") were terrorists.

Wrong. It requires that the Plaintiffs were conversing with people that were within the category that the government admitted was targetted by the TSP, specifically, people who were believed ("reasonably" is not required anywhere) by the government, to be a member or agent of al-Qaeda or some group affiliated in some way with al-Qaeda. The only reference to reasonable belief is in an excerpt from another courts discussion of similar factual evidence relating to the same program in Hepting, which is cited in an illustrative role; the analysis in the instant case, though, does not refer to "reasonable belief" by the government as essential to its determination.

Even if you weren't incorrect in this characterization, though, "reasonable belief" is a pretty low standard, and if your characterization here were true (which it is not) it would still demonstrate your earlier characterization (which is that the Plaintiffs admitted that there contacts were, in fact rather than the belief, reasonable or not, of the government, "terrorists") was an outright lie.

Nathan claims:

um, see page 13. "reasonably believes" is exactly the wording used. bye bye.

Wow. You really believe that if you repeat a lie often enough, that it will become the truth, huh?

Please, everyone download the decision at:

http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf

goto pg 13, and see for yourself what a liar Nathan is.

Seriously.

This is just pathetic.

"reasonable basis" not "reasonably believed"...same effect.

"Of course, this is all besides the point, which is that you lied when you asserted that the plaintiffs "concede they are communicating with terrorists." They did not. If you had any integrity you would retract that statement."

It was a de facto concession they had to make. They conceded that they were conversing with individuals the government had a reasonable basis to think were terrorists. (Otherwise they would have run afoul of Laird.)

Okay. This is good.

So what's the penalty for a president who violates the law and the constitution?

Reelection?

cmdicely:

false: the words "reasonable basis" appear on p. 13.

oh, and I would say that requiring a reasonable basis for a belief is a synonym for "reasonable belief" (I'll grant that I mentally confused "belief" and "basis")

You completely ignore Novak stating that the CIA spokesman was his real second source.

Nathan, I'm sorry but you've fallen for the bit of help Novak - and Drudge et al - provided to Rove when he misleadingly gave his recent round of (inconsistent and ever-changing) accounts of his sources. Aside from the fact that we've known for months - from both Novak himself and Harlow - that Novak talked to Harlow at the CIA, so that it was not the news that Drudge et al tried to make it out to be, the fact of the matter is that Harlow was Novak's CIA contact, referred to as such in Novak's original July 14 2003 column. And the fact of the matter is that Novak cited two senior administration officials as his two sources blowing Plame's cover in his original column, and those two senior administration officials are Armitage and Rove.

Novak did not state that Harlow was his real second source. Just look at his original column. Two senior administration officials: Armitage and Rove. CIA source disputing what those two senior administration officials said: Harlow.

Thus Rove was a source for Novak on Plame. Rove was one of Novak's two senior administration officials.

You've been had, my friend.

And again, Rove does not deny having been one of Novak's two sources. He only denies having realized that he was, at least at first. It is understandable that supporters of Rove would want to avert their eyes and understanding from such a casuistic, legalistic, bs excuse. But that's his excuse. Rove was a source for Novak, along with Armitage.

Nathan: They conceded that they were conversing with individuals the government had a reasonable basis to think were terrorists.

Ah, you mean like these people?

"Late on a June afternoon in 2004, a motley group of about 10 peace activists showed up outside the Houston headquarters of Halliburton,... They were there to protest the corporation's supposed "war profiteering." The demonstrators wore papier-mache masks and handed out free peanut-butter-and-jelly sandwiches to Halliburton employees as they left work. ...To U.S. Army analysts at the top-secret Counterintelligence Field Activity (CIFA), the peanut-butter protest was regarded as a potential threat to national security.

Good to see Nathan finally concede: "I'll grant that I [am] mentally confused..."

cmdicely:

the "reasonable basis" language is not a reference to Hepting, but rather directly refers to the TSP. Insofar as Plaintiffs purport that their communications are subject to the TSP, Plaintiffs are purporting that they are communication with individuals the government has a reasonable basis to believe are members of, or affiliated with, al Quaeda.

How the heck did you think they could get around Laird? If they downplay the significance of who they talk to, they lose standing. To keep standing, Plaintiffs had to imply that they are conversing with terrorists.

Jefff:

Read what Novak asserts Harlow told him.

Believe me, Nathan, I've read it, and it doesn't support your effort to exonerate Rove. Quite the contrary. If you'd like to actually cite a passage, we can go through the interpretation of it. I'd love it. I'm not quite sure why you're shying away from actually citing something. General gestures in Novak's direction isn't going to do it. Rove was one of Novak's two administration officials who blew Plame's cover with him, confirming for Novak the claim that she was CIA and had been involved in sending her husband on her mission.

If anyone is having trouble understanding why this ruling may not stand on appeal, go to the discussion at Volokh and follow along. You might not like the Volokh people, but they're quite smart and they've been following the issue closely today.

That's really not a whole lot of a track record of predictions to justify holding yourself up as an authority making predictions without argument to justify them, and its not anything of a track record at predicting judicial rulings so is entirely inapplicable to the predictions you've made in this thread.

And, I might add, that even if Nathan's so-called "predictions" -- which, I note, he doesn't link to -- are correct, there's also the matter of his implying that several commentors on these threads -- including cmdicely and myself -- hold opinions he couldn't demonstrate that we hold, and yet refusing to back down from his assertions.

It never ceases to astonish me when "Nathan" slinks back to these forums, unabashed, wigh such a humiliating track record of error, faulty logic, poor argumentation and outright deception -- and he claims to be a laweyer! One thing's for sure, though -- judging from the "track record" he touts -- and hey, don't take my word for it, his posts are there for your amusement and edification -- his so-called "legal analysis" isn't worth a bucket of piss.

To be clear, Nathan, I am asserting that Novak says no such thing as you attribute to him, and I defy you to find it. It's not there.

Disputo: You're [Nathan] twisting words out of context here, instead of doing the honerable thing and admitting that you were wrong.

Disputo, I take it you've never met Nathan before?
Twisting words and refusing to admit obvious error is his modus operandi.

White:

they're incapable of appreciating any arguments which don't reach conclusions they want to hear. I learned that a long time ago.

sometimes I think PA is worse than dailykos. the comment threads here actually have a worse reputation among my liberal friends.

Arminius: I take it you want me to provoke you into meeting in Teutoberg Wald?

I'm beginning to think that "Nathan" is simply Thomas/Charlie/Augustus/etc's sock puppet dressed to look like a lawyer.

http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf

This a US Federal judge's order handed down today striking down the "TSP" being run by the NSA (aka Tyranical Survailence Program; domestic tapping of international calls and interception of other communications without warrant) as unconsitutional and illegal. There are several references to the Founder and cases under the original King George's rule that are in today's ruling. While this is a flicker of light on the Bill of Rights, we still have a long journey ahead of us that is uncertain, for the tyranical know little of decency and show contempt for the Constitution that allegedly put them in power.

I expect it will be challenged immediately since to not do so and to not get a stay would mean that the Executive was willfully in contempt of a judge's order if this "program" (aka illegal conspiracy) continues.

I stole thus.

owenz:

your reliance on Keith misses the following language in Keith:

"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power."

Please promise that upon reversal you'll be as dismissive of the "but they're Reagan appointees" arguments as you all currently seem to be with the "but she's a Carter appointee", okay?

Thanks in advance.

An appeal has already been registered with the 6th Circuit and a stay of the injunction has been requested (and it would be surprising if it wasn't granted).

Further thoughts:

leaving aside the standing question;
the Court assumes under Youngstown and Hamdi (without using Hamdan!) that the President's powers are at "lowest ebb" (see Youngstown)...but the government would have argued (presumably) that the AUMF authorized the President's conduct. She didn't address that.

As cmdicely noted above, the First Amendment part is very weak. for frick's sake, the "chilling" of speech couldn't even happen if the program hadn't been leaked. the decision doesn't do a good job of laying out whether it finds a 4th Amendment violation independent of FISA (and if it does, that will be overturned on appeal if Plaintiffs get past standing).

Nathan: It was a de facto concession they had to make. They conceded that they were conversing with individuals the government had a reasonable basis to think were terrorists. (Otherwise they would have run afoul of Laird.)

Idiot. Before he said they (i) "concede they are communicating with terrorists" and now he twists that to (ii) "conversing with individuals the government had a reaonable basis to think they were terrorists."

Anyone with more than a third-grade education (and who's not a graduate of I Can't Believe It's a Law School!) can recognized that sentence (i) is not the same as sentence (ii).

And, considering the government thinks that Cindy Sheehan, Afghan shepherds, random Uighurs, Canadian tourists, the New York Times, NPR, the Quakers, gays, and the voters of Connecticut are all terrorists, communicating with someone the government "believes" is a terrorist is a pretty lax standard.

Birkel: Please promise that upon reversal you'll be as dismissive of the "but they're Reagan appointees" arguments as you all currently seem to be with the "but she's a Carter appointee", okay?

Thanks in advance.

Hey no prob, but I think you meant Bush appointees. A lot of the Reagan-era types aren't so crazy about the whole NSA thing:

"You wouldn't need a warrant to do the initial interception, but afterwards, once you're targeting the American citizen, then you need that warrant," said Bruce Fein, a former official in the Reagan Justice Department and a fierce critic of the Bush' administration's terror surveillance.

Stefan:

"reasonable basis" is a legal term of art and you darn well know it.

Dammit Stefan, you're misunderestimating the vegan threat!

sometimes I think PA is worse than dailykos. the comment threads here actually have a worse reputation among my liberal friends.

Nathan has friends?

But seriously, what with dishonest Bush cultists and various GOP water carriers -- like, say, Nathan -- posting and re-posting their oft-dubunked bullshit, not to mention Charlie/Cheney/Thomas/"Don P"/Augustus, who is truly in a class by himself, yeah, the quality of discussion does get pretty poor. But what do you expect when Bush's supporters have no honest means of defending his mendacity, corruption, and incompetence? Honest conservatives are probably to embarrassed to be seen with you, and lies and spin are all you can manage, so we'll just keep smacking 'em down.

and cmdicely knows that as well.

further, nowhere do Plaintiffs contend that the TSP is intercepting communications to or from individuals that the government does not have a reasonable basis to believe are terrorists.

In other words, Plaintiffs are not contending that their communications with Cindy Sheehan, Afghan shepherds, random Uighurs, Canadian tourists, the New York Times, NPR, the Quakers, gays, and the voters of Connecticut are at issue.

Plaintiffs had to contend that they communicate with individuals who could be reasonably believed to be terrorists.

I know you're not a litigator, but you should be able to figure out that the argument you're making hurts the Plaintiffs' claim to standing.

I'm beginning to think that "Nathan" is simply Thomas/Charlie/Augustus/etc's sock puppet dressed to look like a lawyer.

Nah, the "tells" aren't there, and unlike Charlie, Nathan usually slinks away for a while once his dishonesty has been exposed.

Although the original incarnation of Charlie did claim to be a lawyer (before he claimed to be, variously, a veteran, a Ralph Reed voter and a -- chuckle -- Kerry voter). They do justly share a reputation of serial lying in service of the GOP.

Once you are finished with Nathan, I read the opinion but I'm still confused why the Court never even dealt with the "public interest" of catching terrorists before they kill the public?

Perhaps because, not being an activist court, it was rightly deferring to the judgement of the legislature expressed through the various statutes it found were violated by the program.

U.S. District Judge Anna Diggs Taylor

But we want to know what 'gender issues' she brought to the table...

LOL, cmdicely. Thanks for the laught though.

Perhaps because, not being an activist court, it was rightly deferring to the judgement of the legislature expressed through the various statutes it found were violated by the program.

I'd also add that the FISA program -- which approves warrants as a matter of course and allows 72-hour retroactivity -- is a perfectly adequate tool for catching terrorists before they kill the public, the Bush Administration's self-serving assertions that national security interests, for the first time in more than 25 years, somehow gave them no choice but to break the law are singularly unpersuasive.

Gawd I LOVE the smell of paid detractors in the morning!

The decision is solid as bedrock BECAUASE it is well reasoned and based on constitutional grounds, more importantly, 78 years of stare decisis and 230+years of constitutional jurisprudence.

Standing? Not an issue, but the paid detractors like pulling non-issues out of their lying asses.

LOL, cmdicely. Thanks for the laught [sic] though.
Posted by: Sharon

Mr. D. What can I say, sir?

“The central conservative truth is that it is culture, not politics, that determines the success of a society. The central liberal truth is that politics can change a culture and save it from itself.” - Daniel Patrick Moynihan

I, needless to say, disagree that any law was broken, and there's at least a "good faith" argument that the AUMF authorized the President's conduct.

for frick's sake, the "chilling" of speech couldn't even happen if the program hadn't been leaked. . . . . .
Posted by: Nathan on August 17, 2006 at 4:00 PM | PERMALINK

Shorter Nathan: Only terrorists who exercise their 1st Amendment Rights threaten your 1st (and 4th) Amendment Rights.

Best quote from the decision:

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 power not created by the Constitution. So all 'inherent power' must derive from that Constitution.

Unfortunately, this cannot be repeated enough under the current regime.

"reasonable basis" is a legal term of art and you darn well know it.

Yes, its a legal term of art. No one has said anything that is contradicted by that, bozo, so you spouting it as if it was a counterargument is idiotic.

"X has a reasonable basis to believe Y", in law, means something very different than "Y is true". Your claim that the petitioners admitted that they were conversing with terrorists is false on more than one level; the only thing they admitted was that they conversed with people whom the government would meet the "reasonable basis to believe" standard (which is a very low bar), and the thing the government would have "reasonable basis to believe" was not that they "are terrorists", but that they are either members of al-Qaeda, or members of some group that is in some manner affiliated with al-Qaeda, or an agent of al-Qaeda or any of its affiliates.

nowhere do Plaintiffs contend that the TSP is intercepting communications to or from individuals that the government does not have a reasonable basis to believe are terrorists.

No, actually, its an undisputed fact that the TSP targets people who the government does not have a reasonable basis to believe are terrorists, as a person can be a member or agent of an organization "affiliated with" al-Qaeda without themselves being a terrorist.

I know you're not a litigator, but you should be able to figure out that the argument you're making hurts the Plaintiffs' claim to standing.No, really, the argument that you were knowingly lying when you said that the Plaintiff's admitted that the people they were talking to were terrorists (not "reasonably believed by the US government to be terrorists", not "suspected terrorists", not "people whom the government had reasonable basis to believe were somehow connected to some group itself somehow connected to al-Qaeda") doesn't hurt the Plaintiff's case at all.

In fact, its completely irrelevant to their case.

I, needless to say, disagree that any law was broken, and there's at least a "good faith" argument that the AUMF authorized the President's conduct.

Charlie, please tell us you're posting as "Ariel Sharon" and not in drag. Please.

In deciding issues before them, the Court will generally forego analysis of sub or tangential issues (to the main legal issue) where, as here, their decision (in this case, that the conduct is unconstitutional) renders the other issues presented IRRELEVANT.

An unconstitutional rule or law CANNOT stand, regardless of what rationale are offered to support it.

But out of curiosity.....what is it about fear that drives Amurrikkans to forsake their constitution in times of crisis, real or perceived?

The constitution works UNDER ALL CIRCUMSTANCES provided the watchdogs entrusted by the public to enforce constitutional rule in the Republic, do their jobs. Fear of "terrorists" the "boogeyman" "crime" and other "isms" is a poor reason to throw away freedom.

So...you throw away your freedom to protect YOU against the extremely remote possibility that you will die in a "terror" attack; roughly equivalent with the possibility that you will die while skydiving naked onto the top of K2 wearing a loin cloth and singing "You're the Top."

So you've done it...thrown you freedom OUT the window because you are afraid of "terrorists". You go out to your mailbox one bright, "terror-free" morning and...

BAM! Hit by a speeding bus

Feel safer now? Nawww...jist a lot less free.

There is nothing "good faith" about this admin.

I am still reeling that their legal rationale for detaining people at Gitmo relied upon redefining the word "international" in Art 3 of the Geneva Convention.

Er, correcting the tags on the last part of that:

I know you're not a litigator, but you should be able to figure out that the argument you're making hurts the Plaintiffs' claim to standing.

No, really, the argument that you were knowingly lying when you said that the Plaintiff's admitted that the people they were talking to were terrorists (not "reasonably believed by the US government to be terrorists", not "suspected terrorists", not "people whom the government had reasonable basis to believe were somehow connected to some group itself somehow connected to al-Qaeda") doesn't hurt the Plaintiff's case at all.

In fact, its completely irrelevant to their case.

I, needless to say, disagree that any law was broken,

So?

and there's at least a "good faith" argument that the AUMF authorized the President's conduct.

No, really, there isn't. You have to ignore the legislative history of the AUMF, the legislative context of the AUMF, and the legislative history of the laws you have to argue that the AUMF was intended to override implicitly to make that argument. That's not even remotely a "good faith" argument. Its not even a "straight face" argument.

There are no hereditary Kings in America and no power not created by the Constitution. So all 'inherent power' must derive from that Constitution.

One of the saddest and most shameful things about the collapse of conservatism is that according to the Bush cultists, the above is now a solely liberal position.

And you can count me in.

"reasonable basis" is a legal term of art and you darn well know it.

Yeah. So? This isn't a question of legal terms of art, but of commonly understood English language usage. The issue is that claiming (i) the defendants conceded they communicated with terrorists isn't at all the same thing as saying (ii) that the defendants condeded they communicated with persons the government believed (whether such belief was reasonable or not) were terrorists.

The first statement makes it appear as if the defendants themselves admit their correspondents are terrorists, while the second makes it clear that they admit only that the government claims (but has not proven) these people are terrorists.

I have to say it again, Nathan: I weep for your clients.

I, needless to say, disagree that any law was broken,

Good for you!

and there's at least a "good faith" argument that the AUMF authorized the President's conduct.

OK, so make it if you can.

No, really, there isn't. You have to ignore the legislative history of the AUMF, the legislative context of the AUMF, and the legislative history of the laws you have to argue that the AUMF was intended to override implicitly to make that argument. That's not even remotely a "good faith" argument. Its not even a "straight face" argument.
Posted by: cmdicely

Just so.

Stefan:

um, read the fucking opinion. "reasonable basis" was the Court's words, not mine. that's a legal term of art. deal with it.

"as a person can be a member or agent of an organization "affiliated with" al-Qaeda without themselves being a terrorist."

bullshit.

bullshit

Brilliant legal analysis, there, Nathan. You must wow 'em in court.

"as a person can be a member or agent of an organization "affiliated with" al-Qaeda without themselves being a terrorist."

bullshit.

No, really, just as a criminal enterprise may control businesses that have innocent employees, terrorist organizations may have groups "affiliated" with them in various ways who have many members who are in no way, shape, or form "terrorists".

"reasonable basis" was the Court's words, not mine. that's a legal term of art. deal with it.

Yes, it is, and it means something different than thing actually being true. Meaning your earlier claim that the plaintiffs had admitted they were dealing with terrorists (not people the government had reasonable basis to believe were terrorists) was a misrepresentation. Deal with it.

"as a person can be a member or agent of an organization "affiliated with" al-Qaeda without themselves being a terrorist."

Wasn't some guy who was held just a chauffeur?

"Nathan" would probably define OBL's gardener, maid, dry cleaner, and favorite prostitute as "terrorists".

"Nathan" would probably define OBL's gardener, maid, dry cleaner, and favorite prostitute as "terrorists".

I was thinking about the guy who delivered their pizza, myself.

um, read the fucking opinion. "reasonable basis" was the Court's words, not mine. that's a legal term of art. deal with it.

Um, so what? It's completely irrelevant, and I have no idea what point you think you're trying to make.

The term "reasonable basis" has zero bearing on your earlier claim that the plaintiffs "concede they are communicating with terrorists." You claimed that the plaintiffs admitted they were communicating with terrorists -- that claim was a lie, as they admitted only they were communicating with people suspected by the government of being terrorists or somehow affiliated with terrorists.

Merely repeating something over and over again, after that claim has repeatedly been shown to be false, isn't exactly testament to your argument skills.

No, really, just as a criminal enterprise may control businesses that have innocent employees, terrorist organizations may have groups "affiliated" with them in various ways who have many members who are in no way, shape, or form "terrorists".

For example, Hamas, while a terrorist organization, is also the government in the Palestinian Authority, and so it may have legislators, clerks, secretaries, janitors, etc. who are "affiliated" with Hamas in its governing function but are not terrorists themselves. Same goes for Hezbollah, which is both a terrorist organization and a political party. If an American journalist does a story on the Palestinian elections and calls a Hamas legislator for a quote is she therefore "communicating with terrorists"?

"as they admitted only they were communicating with people suspected by the government of being terrorists or somehow affiliated with terrorists."

false. they admitted more than that. actually, they averred flat out (which they had to in an attempt to establish standing) that they were communicating with people who the government had a "reasonable basis" were terrorists. that's more than "suspicion"

Nathan: bullshit

Gregory: Brilliant legal analysis, there, Nathan. You must wow 'em in court.

No, no, Gregory, "bullshit" is a legal term of art. Deal with it.

"For example, Hamas, while a terrorist organization, is also the government in the Palestinian Authority, and so it may have legislators, clerks, secretaries, janitors, etc. who are "affiliated" with Hamas in its governing function but are not terrorists themselves. Same goes for Hezbollah, which is both a terrorist organization and a political party. If an American journalist does a story on the Palestinian elections and calls a Hamas legislator for a quote is she therefore "communicating with terrorists"?"

So, how does this apply to al qaeda?

Nathan's earlier sentence: the plaintiffs' claim to standing is stronger than I thought because they concede they are communicating with terrorists.

Nathan's later sentence: actually, they averred flat out (which they had to in an attempt to establish standing) that they were communicating with people who the government had a "reasonable basis" [to suspect] were terrorists. that's more than "suspicion"

Notice what's been slipped in from the first version to the second?

liar.

p. 13 of the opinion states:

"reasonable basis to conclude"

that is far, far stronger than a "suspicion"

So, how does this apply to al qaeda?

Since reading comprehension isn't your strongest suit, I'll point out that you missed the "for example" which began that post. It doesn't apply specifically to al-Qaeda, it was in response to cmdicely's more general point about criminal enterprises and terrorist organizations:

No, really, just as a criminal enterprise may control businesses that have innocent employees, terrorist organizations may have groups "affiliated" with them in various ways who have many members who are in no way, shape, or form "terrorists".

I agree with the general point.

but the Court was specifically talking about al quaeda. (it would really, really help you to actually read the decision)

LOL. Or, as cmdicely is probably doing right now, ROTFLMAO. I see that Nathan is (I'd say "once again" but by now with Nathan I think this is understood) engaged in frantic hand-flapping to distract from his earlier fuck-up.

We caught him claiming something ("they concede they are communicating with terrorists") that was a flat-out lie. To distract from this, he's now hopping up and down and making some bizarrely irrelevant claim about "reasonable basis" not being the same as "suspicion" -- which, of course, has nothing whatsoever to do with his claim that "they concede they are communicating with terrorists" -- a sentence, everyone will note, that is remarkably free of the phrase "reasonable basis."

I say we all chip in and buy Nathan a table to pound on.

sigh.

to any objective observer familiar with litigation:

we are talking with people that the government has reasonably concluded (not suspected no matter how much Stefan wants to insert that into a decision he has not read) are terrorists is a statement that they are communicating with terrorists.

but you're too busy trying to score points.
it's not like there has been an iota of legal analysis on this thread by any of you.

Gregory:

I'm not "Charlie", "Thomas", "Don P.", or "Ariel Sharon" -- who is on his deathbed so neither he nor Terri Schiavo could type -- next ad hominem?

we are talking with people that the government has reasonably concluded (not suspected no matter how much Stefan wants to insert that into a decision he has not read)

Ah, I see what he's doing. In order to distract from his earlier lie, Nathan is now attempting to divert attention to my earlier sentence that said

You claimed that the plaintiffs admitted they were communicating with terrorists -- that claim was a lie, as they admitted only they were communicating with people suspected by the government of being terrorists or somehow affiliated with terrorists.

and is pretending that my use of the word "suspected" was somehow a legal analysis of the "reasonable basis" standard, rather than merely common usage English.

we are talking with people that the government has reasonably concluded (not suspected no matter how much Stefan wants to insert that into a decision he has not read) are terrorists is a statement that they are communicating with terrorists.

No, not at all. The fact that the government claims those people are "terrorists" (actually the definition is much broader than that, as it covers even people "working in support of al Qaeda" -- which, according to Dick Cheney, includes the voters of Connecticut) does not by itself mean that defendants are "communicating with terrorists." The relevant factor is the governments' claim about al Qaeda, not whether defendants accept the veracity of that claim as a matter of undisputed fact.

The relevant sentence from the opinion is below:

It is undisputed that Defendants have publicly admitted the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.

Nowhere is there language that says Defendants concede "they are communicating with terrorists" -- merely that they concede they are communicating with persons the government has a reasonable basis to conclude are somehow connected to al Qaeda -- and, of course, "reasonable basis" is an extremely low hurdle to get over.

To use an example, I may be communicating with a business contact of mine named Hussein bin Laden. The government may have a reasonable basis, based on his last name, to conclude that he's an al Qaeda member. However, this bin Laden is really just a businessman, and I know that, so my conceding that the government has a "reasonable basis" for suspicion is not the same as my conceding that this particular person is actually a terrorist.

we are talking with people that the government has reasonably concluded (not suspected no matter how much Stefan wants to insert that into a decision he has not read) are terrorists is a statement that they are communicating with terrorists.

Um, wrong: "reasonable basis to believe" is a very weak standard; "suspects" is quite a good equivalent in everyday English. (Its somewhat imprecise since "suspects" doesn't necessarily imply any basis for suspicion, and "reasonable basis to believe" doesn't, unlike "reasonably believes", actually require subjective belief at all, but its not at all far from the mark.)

"Reasonable basis to believe" is not "reasonably concludes", which seems to be an attempt to spin the near equivalent "reasonably believes" (which is "reasonable basis to believe" plus actual subjective belief) into something more certain by adding the emotional charge of finality associated with "concludes". Your characterization, though, is farther from the mark than Stefan's "suspects", though the two have the same kind of shortcomings. You are being rather hypocritical here.

before Nathan uses this as yet another diversionary attack, allow me to correct two mistakes in wording Stefan made:

The relevant factor is the governments' claim about al Qaeda, not whether defendants accept the veracity of that claim as a matter of undisputed fact.

Nowhere is there language that says Defendants concede

In both cases, defendents should be plaintiffs.

Otherwise, his argument is sound, albiet one that has been repeated to Nathan ad nauseum.

but the Court was specifically talking about al quaeda.

Yeah? I'm not sure what this is supposed to refer back to, but if you are referring to the innocent affiliates then, yes, groups that are "affiliated" in some way with al-Qaeda may have members that are not terrorists, just as is true of terrorist organizations more generally.

So, how does this apply to al qaeda?

It depends exactly how "affiliated" is interpretted; if it is applied as meaning "has some working relationship", note that (for instance) the government of Iran is, by the US government's description, "affiliated" with al-Qaeda.

While it may be fair to characterize that government as a "terrorist regime" for certain purposes, it is not the case that every public employee in Iran is a terrorist in any meaningful sense.

Thk goodness Stefan is not Nathan, else we would have to watch him spend the next four hours arguing that defendants is the correct word. :)

defendants is a legal term of art. deal with it.

Have just read the whole thread. It's clear this Nathan fellow isn't very bright, but what's his mental illness that he can't just admit he erred and be done with it? Does he do this often?

Maybe we can get this judge to help us with Nathan:

"A federal judge ordered tobacco companies Thursday to admit they lied..."

Stefan wrote:

No, no, Gregory, "bullshit" is a legal term of art.

It's funny because it's true!

Nathan wrote: to any objective observer familiar with litigation

Leaving aside how Nathan is whining about how having his ass handed to him is somehow irrelevant because those doing it are, presumably, not "objective," I doubt any objective observer would conclude that Nathan, with his piss-poor debating skills -- not to mention his proclivity for outright falsehoods -- would conclude that he (Nathan) is familiar with litigation.

Which would be fine, except Nathan claims to be a lawyer. Ford help your clients...

Does he do this often?

I'll just share two of my own experiences with ol' Nate, and apologize for not providing the links (i'd be grateful for any assist).

In a thread on the Federalist Society, Nathan rose to the defense of the assertion that "everyone knows law professors are liberal." I asked, yeah? How do you know? Can you cite any relevant data? Nathan (and, to be fair, he was not alone) bloviated on the "everyone knows, so it must be true, so I don't have to provie it" fallacy at length before finally -- finally! -- Googling up a single survey that supported the contention. So, I must admit, my opinion of Nathan as a reasonable -- indeed, honest -- commentator was rather, let's say, shaken.

Amusing as that was, the real fun was on a recent thread on the Plame case, in which Nathan 1) ascribed to cmdicely, Cranky Observer and myself a position we did not state, 2) utterly -- and I mean utterly -- failed to provide any citation when challenged to provide an instance when he had averred what he said we did; 3) claimed it was all a joke, and 4) said that we'd commented on threads that discussed sealed indictments, so his assertion was correct after all.

He did apologize, half-assedly, if, as he said, we took his so-called "joke" too literally, and to me, half-assedly, in acknowledging that he had confued me with another poster, but withdrew said apology when I refused to let him off the hook and insisted he offer the unqualified apology his unsupportable allegation demands. He then got snippy when reminded of his lies, and failure to acknowledge them, on other threads. I suspect that Nathan likes to lie low until he figures he can once again pose as a reasonable commentator to the unwary.

And, of course, Nathan claims to be a lawyer, a position I doubt his various posts support.

before Nathan uses this as yet another diversionary attack, allow me to correct two mistakes in wording Stefan made...In both cases, defendents should be plaintiffs. Otherwise, his argument is sound, albiet one that has been repeated to Nathan ad nauseum.

Indeed, I switched the terms. My stupid mistake.

Nathan - Any sign of any evidence for your claim that Rove was not a source for Novak? Any evidence from what Novak says, however misleadingly to you, about Harlow? Or should I take silence on it as concession that you were wrong?

As for another point, Occam's razor doesn't work in human affairs, and it won't work to rule out or unlikely a coordinated effort to out Plame just because Armitage was also blowing her cover with journalists.

I've got a question. Is Nathan a starting troll or is he off the bench (a Shrub scrub)?

Holbrooke is a guy with a ton of credibility. When he says that diplomacy has to be backed up by a credible threat of force, he obviously means it: he recommended military action twice in the Balkans during the 90s. At the same time, when he says it should be alast resort, he obviously means that too: he devoted uncounted thousandof hours to serious, toughminded diplomacy during the same period. Some ofit worked and some of it didn't, but his dedication to the cause is hardly questionable.And despite his continued unwillingness to flatly face the reality that we can't afford to stay in Iraq any longer, he had by far the better of the argument when the subject turned to Iran.Diplomacy is not, he reminded Kristol, in and of itself a sign of weakness. Of course we should be willing to talk directly to Syria and Iran, rather than leaving the job to third parties that we don't really trust to represent our interests in the first place. Kristol could do little more than splutter that th

cmdicely:

um, the relevant language isn't "reasonable basis to believe" -- which would equate to suspicion.

the decision states: "reasonable basis to conclude"

both you and Stefan keep dropping that "conclude" for obvious reasons.

Jeff:

Novak said that he and Rove spoke for all of a couple seconds on Plame. I don't think that makes Rove a "source."

Novak also said that the CIA spokesman confirmed her identity.

This was what, a month ago?

did you know rove was fired from bush 41 campaign because of leaks to novak?

true...

um, the relevant language isn't "reasonable basis to believe" -- which would equate to suspicion. the decision states: "reasonable basis to conclude" both you and Stefan keep dropping that "conclude" for obvious reasons.

The decision (which you claim, inexplicably, to have read) uses both "believe" and "conclude." Moreover, there is no substantive legal difference between the two words in this circumstance, so once again I have no fucking idea what point you think you're trying to make.

Here, for example, from pg. 17 of the decision:

"For example, scholars and journalists...must communicate with individuals abroad whom the United States government believes to be terrorist suspects....In addition, attorneys...indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects...."

Novak also said that the CIA spokesman confirmed her identity.

More disingenuousness from Novak, and by extension, Nathan. Novak's so-called "confirmation" was the CIA spokesperson's asking, inasmuch as he could using coded language, Novak not to out her.

The fact that Novak outer her anyway, and then used the CIA's request not to as a fig leaf of "confirmation", says all you need to know about Novak's credibility -- and that of those who cite him authoritatively.

Novak said that he and Rove spoke for all of a couple seconds on Plame. I don't think that makes Rove a "source."

I didn't realize that if you gave a reporter information that they used, it didn't make you a "source" unless your conversation met a particular threshold duration.

Nathanspeak is such an interesting language.

um, the relevant language isn't "reasonable basis to believe" -- which would equate to suspicion.

the decision states: "reasonable basis to conclude"

The two are synonyms, the decision uses both "reasonable basis to conclude" and "reasonable grounds to believe", and the public statements of the administration to which the decision refers use both "reasonable basis to believe" and "reasonable basis to conclude" and other similar phrases interchangeably to describe the program.

Novak said that he and Rove spoke for all of a couple seconds on Plame. I don't think that makes Rove a "source."

Well, that's great that you don't think that. Unfortunately for you, there's another, better measure that your completely arbitrary judgment. And that is, was Rove Novak's second source, his second "senior administration official," in his original column. And by that measure - which I think it's fair to call fact, as distinct from your opinions on journalism - Rove was one of Novak's sources.

Novak also said that the CIA spokesman confirmed her identity.

You do a little better here. Here's Novak's column from this past July:

When Fitzgerald arrived, he had a third waiver in hand -- from Bill Harlow, the CIA public information officer who was my CIA source for the column confirming Mrs. Wilson's identity.

Now, of course, this passage follows one in which Novak acknowedleges that he used Rove as his confirming source on Plame and her purported role in her husband's mission, which, indisputably, Harlow denied. We don't know exactly what Harlow said to Novak - and I'm more than willing to believe he screwed up and said too much or the wrong thing - but Novak doesn't actually come out and say that Harlow confirmed her identity. The passage is ambiguous, and he may be misleading the reader deliberately, making it sound - like he is saying that Harlow was his CIA source confirming Mrs. Wilson's identity, but actually saying that for the column he wrote in which he confirmed Mrs. Wilson's identity, Harlow was his CIA source.

Again, it's ambiguous. But regardless of that, the undeniable fact is that Rove as a source for Novak, his second source, and one of two senior administration officials who were Novak's sources for the claim that Wilson's wife worked for the CIA and was involved in his mission. Why you can't face this is beyond me. Maybe Novak shouldn't have used Rove as a source. But he did.

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