The boys over at Volokh are blasting the opinion too. The problem I have is, who is closer to correct? The Radicals (and what conservatives who remain) have gotten very good at developing persuasive-sounding legal argument as to why any court decision they don't like is "weak" (not to mention the comments thread at Volokh about how the judge is a Carter appointee and is otherwise stupid and undependable). But of course Firedoglake, Greenwald, and others on the progressive side will deploy arguments that the decision was quite good. How is the layman to judge (in advance of a Supreme Court ruling)?

Cranky

I'm still waiting,along with Madeline Albright and Sharon Watkins, to hear what 'gender issues' she raised...

Honestly, Kevin...such drivel.

Same way they do. If you like the decision, it's a good one. If not, it ain't.

Great quote from Greenwald:

Let's see what our friends in the Bush follower crowd are saying. Legal scholar Jeff Goldstein immediately puts the spotlight on the Judge personally, and highlights "that she was married to Michigan Democratic Representative (1955-1980) Charles C Diggs, Jr. (divorced 1971) and S Martin Taylor (active in both the Coleman Young and Jimmy Carter campaigns)" and that "was the first African-American woman appointed to a federal judgeship in Michigan . . . . Taylor has used her positions to advance civil rights throughout the United States." He then announces that he "think(s) this ruling will be overturned on appeal." And, needless to say, included in the first 10 comments is a plea that the President defy the order, along with a call for the judge to be drowned.

How many tank divisions does the court have?
I think Bush will just ignore it.

The Bush Administration has already refuted the "opinion" of the liberal judicial activist.

Link

"Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people. Today a federal judge in Michigan has ruled that the Terrorist Surveillance Program ordered by the President to detect and prevent terrorist attacks against the American people is unconstitutional and otherwise illegal. We couldn't disagree more with this ruling, and the Justice Department will seek an immediate stay of the opinion and appeal. Until the Court has the opportunity to rule on a stay of the Court's ruling in a hearing now set for September 7, 2006, the parties have agreed that enforcement of the ruling will be stayed.

United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives. The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government, and it is the President's most solemn duty to ensure their protection.

The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties. The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program. "

How many tank divisions does the court have?
I think Bush will just ignore it.
Posted by: Buford

Okay. Worked for Andy Jackson in regard to the illegal removal of the Cherokee but you keep forgetting that Andy had the army behind him and these guys have ignored the first rule of right wing coups...

"Don't piss off the military."

"Now it's $200 billion. If we don't change the course, the rest of the world could own $15 trillion of us. That's pretty substantial. That's equal to the value of all American stock." Warren Buffet

liberal judicial activist.

Several times a day I am reminded of Stephen Colbert's refrain: Reality has a well known liberal bias.

Cranky,

if memory serves me correct, Volokh and his gang think the program is illegal. its standing and the constitutional arguments that I question.

I've asked some (liberal) legal colleagues to glance at the decision and they reached pretty much universal agreement that it'll be overturned on standing grounds without reaching the merits.

I think you'll find that most judicious commentators agree that the opinion's finding of standing to be quite weak, no matter what they think of the merits.

The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program. "
Posted by: Al on August 17, 2006 at 4:54 PM | PERMALINK

Oh noes!

If they demonstrate the program in a court to a judge, Osama will find out all about it, and he'll stop using AOL IM to discharge his orders to his troops, and we won't be able to tell where he is and arrest him promptly!

Kevin:

a notice of appeal was filed already and a stay requested.

Nathan,
As far as I have ever been able to determine, "standing" (at least since 1970s) has been a euphamism used by the Radical Right to mean "use raw political power to derail this case on extra-legal grounds".

Cranky

Cranky:

"standing" is something you have to have to bring a lawsuit. therefore, the analysis of P's standing is the first critical element of any claim.

many, if not most, Constitutional claims have foundered on it.

I think you'll find that most judicious commentators agree that the opinion's finding of standing to be quite weak, no matter what they think of the merits.

I dunno, Nathan, most judicious commentators on the other thread seem to be handing you your ass (again), so of what value is your citation of what "most judicious commentators agree" upon?

> if memory serves me correct, Volokh
> and his gang think the program is
> illegal. its standing and the
> constitutional arguments that I question.

Somewhat meaningless to think that if the Administration is also allowed to argue that they can never be brought into court due to the secret nature of the program and the above-the-Constituation special powers of the "commander-in-chief". Because if that is the case, in practice anything the President decides to do can never be stopped by anyone.

Cranky

I agree that Bush's defenders would fervently hope for an overturn on standing grounds, as they don't seem to have a prayer on the merits.

> "standing" is something you have to have
> to bring a lawsuit. therefore, the analysis
> of P's standing is the first critical element
> of any claim.

Thank you Nathan; as it happens I was well aware of that. My empirical observation is that "standing" tends to mean "who has more political clout before this particular Appeals Court", which generally boils down to either (1) the national political party with upward momentum (2) the most economically powerful entity.

Cranky

And there is a wildcard in all this: even John Roberts has to be starting to suspect that the Cheney Administration will not last forever, and that its fall may be very hard. He will be a Supreme for 20-40 years; does he want his legacy tarnished by tying it to a sinking ship? That is a ways down the road but is something to consider.

Cranky

As a ordiinary citizen with no legal training who is moderate, I don't mind the NSA program but it has to be legal. Why can't Bush get with his congress and change the laws to make this legal and get some oversight from FISA? As a mike merlot, I was taught that no one is above the law, ot even in a time of "war" if that what you want to call it. And I agree with above sentiment, there is going to be so much spin on this from both sides, its gonna make our heads hurt. Follow the fricking laws Mr President. And if you can't get done what needs to be done, then work to change the laws.

As a ordiinary citizen with no legal training who is moderate, I don't mind the NSA program but it has to be legal. Why can't Bush get with his congress and change the laws to make this legal and get some oversight from FISA? As a mike merlot, I was taught that no one is above the law, ot even in a time of "war" if that what you want to call it. And I agree with above sentiment, there is going to be so much spin on this from both sides, its gonna make our heads hurt. Follow the fricking laws Mr President. And if you can't get done what needs to be done, then work to change the laws.
Posted by: the fake Fake Al on August 17, 2006 at 5:29 PM | PERMALINK

However, if the ruling that this is unconstitutional stands, simply changing the laws will not be enough. Wouldn't this require amending the constitution to make it legal?

For some reason people keep on forgetting that all this program does is add more noise to the amount of data analysts have to sift through. Screwing with the ratio between noise and actual intelligence isn't going to help keep us safe. It is like reacting to a case of vehicular homicide in Los Angeles by impounding every car in the city to search for evidence. This is partly why police states like the former Soviet Union were more successful at suppressing dissent through fear than preventing crimes. We don't even have enough translators in languages like Arabic to keep up with the data that is being collected in a timely manner, in part because 55 Arabic linguists have been fired for being gay.

Ah, Kevin.

Did the dramatic events of the past week slip by you completely unnoticed?

We're in a war, and you're cheering for our enemies.

Because if that is the case, in practice anything the President decides to do can never be stopped by anyone.

By jove! I think he's got it.

Ah Egbert,
Did the Constitution slip by you completely unnoticed or are you willfully ignoring it?

We're in a democracy and you're cheering for dismantling it.

The most important part of the opinion is this:

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

Upheld or overturned, the world in now informed that Bush considers himself to have the powers of an hereditary king and he has been utterly and effectively rebuked for it.

Go ahead and overturn it on standing; the substance of the ruling will then stand as unrefuted by the administration and it will be a legal but Pyrrhic victory - the nation and the world will see that the Bush administration didn't have the balls to test the substance of the ruling and ran like little screaming girls from a decision on the merits.

Egbert: We're in a war, and you're cheering for our enemies.

Our enemies are those who would dismantle the Constitution.

And it is you who are cheering those enemies on.

As for the events this past week, we've seen that the Bush administration has lied and lied and lied again about their significance and in fact put us in greater danger by rushing the Brits to make arrests on Bush's partisan timetable, not the timetable dictated by the investigation and national security necessity.

Shame on Bush.

Shame on you.

The Constitution is not a suicide pact.

egbert wrote: We're in a war, and you're cheering for our enemies.

Ah, a scripted Republican right-wing extremist talking point robotically regurgitated by a neo-brownshirt mental slave whose fondest wish is to be the subservient bootlicking subject of an all-powerful hereditary king.

Ah, a moonbat paid by George Soros to claim everyone who disagrees is a "scripted Republican right-wing extremist talking point robotically regurgitated by a neo-brownshirt mental slave whose fondest wish is to be the subservient bootlicking subject of an all-powerful hereditary king."

Luckily, the 6th Circuit has granted a stay and will hear the appeal -- August 14th was Attorney General Gonzales's birthday -- what a present this has been.

Going back to the standing issue...if the Court of Appeals finds that the plantiffs did not have standing, then who the heck would have standing???

I'm not a legal scholar, but my understanding it that to have standing you must have been directly harmed by the action. In this case, since no one will ever know who precisely is being eavesdropped on, is it possible that nobody will have standing??

Can someone who has knowledge of the law comment on who would actually have legal standing to challenge this law?

The Constitution is not a suicide pact.

Finally, a truly original thought from a troll. 'Bout damn time.

The constitution is not a suicide pack!, by that logic any time we feel threatened, we should dump the whole things meaning we probably would have been without a C from the Civil War on. Come on Sharon. The C is a muteable, changable document and in fact has been changed many time to reflect the needs of the country. So tell me why Bush doesn't work to change the laws to make these wiretaps legal. The real issue: is the President above the law during wartime? The answer has come back again and again, no. And its not really a war as such anyway, but more like the war of drugs or the war on crime. Why not work to make the wiretaps legal? Why?

I actually agree that the answer has come back again and again, no -- just not DURING the war -- se the difference?

I just got here, and barely skimmed the thread - but in a sad fucking commentary on America, the CBS evening news kicked off with seven minutes on the arrest of a suspect in the JonBenet case and followed that with a report on how tobacco executives lie.

Civil liberties restored isn't news?

I'm going to go put my head in the oven now.

In other words, if this decision isn't overturned on appeal then the NSA program is unconstitutional, not merely a violation of FISA. Thus, it wouldn't be possible for new legislation to legalize it.

This is misleading; both the Fourth Amendment and Separation of Powers Constitutional holdings explicitly cite FISA and Title III statutory prohibitions as relevant. Aside from the First Amendment holding (I'd be surprised if that one survives, and even there a balancing test applies that would be weighed differently if there was a statutory scheme governing the searches—so its not clear that the result would be the same even on that point with new legislation, though statutory violations aren't cited as part of the evidence of a Constitutional violation), the constitutional violations found are essentially in exceeding executive Constitutional authority in the light of contrary statute.

That clearly does not indicate that new statute would have no effect on the result; quite the contrary.

Well Bob Schieffer finally got to the case - about 30 seconds and no video. Fucking pathetic.

They will seek a stay immediately, which is likely to be granted. The appeal could take a while.

Ah, a moonbat paid by George Soros to claim everyone who disagrees is ...

Didn't take long for "Sharon" to drop the pretense of being a curious commentator and come out of the closet as a rightwing troll.

I'm not a legal scholar, but my understanding it that to have standing you must have been directly harmed by the action. In this case, since no one will ever know who precisely is being eavesdropped on, is it possible that nobody will have standing??

That is why the court dismissed the claim about datamining, but wrt wiretapping, the GWB admin has been very forth coming about the group of people they are monitoring without warrant, and the judge found that the plaintiffs had indeed been communicating with people from that group.

Can someone who has knowledge of the law comment on who would actually have legal standing to challenge this law?

I think a US District Court chief judge, who counts as "someone who has knowledge of the law", has weighed in on that.

Though, of course, a harder to argue example than the present plaintiffs would be someone able to prove that their particular calls had been monitored, and particular harms to them had resulted from that monitoring. Of course, to establish that, one would necessarily have to have access to classified government information that the state secrets privilege would be asserted to prevent you from using discovery to gain access to. Which is one reason that the standing threshold is likely to be set fairly low (as low as possible consistent with the Constitutional "case or controversy" requirement) in a case like this.

I personally have trouble saying that we are at war and with the whole unending AUMF. When does this war end? As soon as the war on drugs is over with. Seems to me terrorism will be with us forever and we'll keep fighting it, so does that mean the WOT is forever and thus the President's powers to ignore the law runs forever? Tell me the evidence procedure when we know WOT is over and the President has to start following the law again? BTW, I'm serious here. These are serious questions for joe citizen. Don't say until the job is done. You see the problem there. Ulimately, the WOT becomes a power grab, a way to circumvent laws. Up to now, I think its been for the best of motives. But absolute power corrupts absolutely. How do we know when the WOT is won?

How many tank divisions does the court have? I think Bush will just ignore it.

I dunno. How many divisions are composed of soldiers sworn to the Constitution? How many instead of those sworn personally to Bush?

My old Civ Pro prof is on the 6th Circuit - I hope she's part of the panel that gets this case. She will make the Junta cry like little girls.

For Kevin and others who don't know, this decision by a district court judge ultimately will be meaningless. It will take at least a Court of Appeal decision, and perhaps a Supreme Court decision, to resolve this issue. It is doubtful this judge's opinion will carry any weight on an issue such as this, expecially if, as reported, it is not a very scholarly opinion.

She will make the Junta cry like little girls.

I'd pay money to see that.

Tell me the evidence procedure when we know WOT is over and the President has to start following the law again?

When all the terrorists are dead. Right Charon?

The Constitution is not a suicide pact.
Posted by: Sharon on August 17, 2006 at 6:10 PM | PERMALINK

That's a pre-1776 mindset.

It is doubtful this judge's opinion will carry any weight on an issue such as this, expecially if, as reported, it is not a very scholarly opinion.

As someone who agrees with most of the apparent conclusions of law, I have to say its definitely not a very well-written opinion, and it has a number of annoying overstatements (some of which contradict the logic in other parts of the opinion) in conclusory paragraphs that force you to go back and read the supporting argumentation to get an idea what is actually meant in that section of the holding.

I was pretty surprised anyone was found to have standing to file a suit here. Who was harmed by the wiretapping?

Here's a little about Judge Anna Diggs Taylor's baggage . . . this has been forgotten by many, and maybe it explains her anti-America ruling:

Charles C. Diggs, Jr.

Democrat, Michigan (1955-1980)

The (dis)Honorable Charles C. Diggs, Jr., founder of the Congressional Black Caucus, was found guilty in 1978 for taking kickbacks from three of his congressional staffers; he was re-elected to office; then censured by the House, and finally resigned, then went to prison for 7 months.

Indicted of 11 counts of mail fraud and 18 counts of falsifying congressional payrolls. Prosecutors said he received $66,000 in kickbacks from 1973-1977 from several staffers, and used some of that money for his personal business and congressional expenses.

Guilty of: Diggs was found guilty of all 29 counts against him in October 1978, then the next month he was re-elected to his 13th term in Congress.

The Jailbird Count. Prison term: 7 months at minimum-security prison at Maxwell Air Force Base in Alabama. Diggs became a member of the Congressional Prison Caucus.

Congressional censure: In July 1979, the House of Representatives unanimously censured Diggs, after half an hour of floor discussion. No Member of Congress stood up to defend him. In a letter to his colleagues, Diggs admitted misuse of public funds for private use. He apologized to Congress and agreed to repay the House more than $45,000 and accept the censure. The fine would come out of his paycheck, at $500 a month. (A nice sweet deal: that means Diggs would have to stay in office another 7-1/2 years and have $500 deducted each month to pay restitution. But that didn't happen.)

Diggs also faced a $29,000 tax bill from the IRS for failing to pay income taxes on the payroll kickback money.

After having been found guilty, then disgraced by his colleagues in Congress, it still took Diggs another full year to resign from Congress, in June 1980. He probably waited until June so that he could still collect his Congressional salary and to wait the verdict of the U.S. Supreme Court. Diggs appealed to the Court to review his conviction; the Court let his conviction stand without comment.

Historical note: Only once before in the twentieth century had the House censured a member, and that was 60 years earlier in a case of a Texas Congressman who was punished for inserting objectionable material into the Congressional Record.

(Birds of a feather . . .)

This is OT... but did anyone notice the RSS feed for this article reads "More on WIRELESS Wiretapping"? Meta-tags problems? Joe guys got you, Kevin? :P

mjk:

Basically people who admitted to communicating with terrorists brought the suit. After the appeal, these "plaintiffs" should be shipped off to Gitmo.

Well, that settles it. "Sharon" is definately yet another sock puppet.

Basically people who admitted to communicating with terrorists brought the suit.

Oh, surprise surprise, Sharon, a troll from the Chuckles family, is repeating Nathan's thoroughly debunked lies from the earlier thread.

Poor Sharon ... can't stand on the merits of the case so she has to issue the usual lame ad hominem attacks.

Fine, Chris. Basically people who admitted to communicating with "people the government had a reasonable basis to conclude" were terrorists brought the suit. Is that better for your little virgin ears?

brian wrote: "For Kevin and others who don't know, this decision by a district court judge ultimately will be meaningless"

Brian, not one commenter here doesn't know that this case will go to the Supreme Court. Nevertheless, the decision definitely has meaning at this time because the Bush administration just got its ass handed to it. They have not been put on the defensive, a position they are definitely uncomfortable with.

The Bush administration wrote: "Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people."

And this week, it has been revealed that the plot was far less than it was hyped up to be and that warrants were appropriately issued for the surveillance of the plotters.

The fake fake Al wrote: "Why can't Bush get with his congress and change the laws to make this legal and get some oversight from FISA?"

He can, and that's precisely what he's been doing. Unfortunately, Bush has been pushing for such an extreme law that Congress has been balking at passing it.

Dear little Sharon, just as clueless, as ever, writes: "Fine, Chris. Basically people who admitted to communicating with 'people the government had a reasonable basis to conclude' were terrorists brought the suit. Is that better for your little virgin ears?"

Nope, because it's still a lie. There was no "reasonable basis to conclude" any such thing about the people on the other end of the line, as you well know. And if there were, then getting a FISA warrant for such surveillance would be trivial, which renders your argument, such as it is, moot.

The Constitution is not a suicide pact.

Yeeees, Charlie.

Could you go and be a stupid idiot somewhere else? Maybe try moving to New Hampshire, where you can--get this--

LIVE FREE OR DIE.

What I find interesting in that whole "the Constitution is not a suicide pact" thing ... do those who spout this bit of drivel really not understand just how mindbogglingly idiotic such a statement is?

Obscure, I prefer the Benjamin Franklin response.

Oops... type in a post a few places up: "They have now been put on the defensive...."

Sigh ... the fingers just aren't working today. Substitute "typo" for "type" in the post above. I think I'd better go get some coffee....

Sharon: Here's a little about Judge Anna Diggs Taylor's baggage . . . this has been forgotten by many, and maybe it explains her anti-America ruling...

Hm. Says more about your preferred MO: character smear by innuendo. Yeah, that's some good jurisprudence you got going there. Anything else?

The Constitution is not a suicide pact.
That's pretty persuasive... Can I try?

The Constitution is not a cheese grater.

The Constitution is not a skyscraper.

The Constitution is not a dog.

Man this rocks! Not sure what trying to define something by what it isn't accomplishes, but as rhetorical devices go, it's pretty hard to contradict.

PaulB,

Notwithstanding what you think you know about this case going to the Supreme Court, it is not at all clear that this case will ever go to the Supreme Court. It could well be reversed on appeal and the Supreme Court would have no interest in taking the case.

Experience has shown, time after time, that 20% of the populace prefer authoritarian rule over democracy...as long as their guys are in power. Too bad they're in power now. Hopefully the rest of us can shake them out of our cherry tree.

PaulB,

I prefer Ben Franklin's view as well. (Heh, I'm a Vermonta' not a Granite State reactionary.) But Charlie can't even measure up to his ideological bretheren here in New England.

The Constitution is not a suicide pact.

Give me Liberty, or give me death.

The Weimar Constitution is not a suicide pact. Only unrestricted power in the hands of Der Fuhrer the President can save Germany America from the Bolshevik Islamofascist menace!

So the WaMo can't afford comments with either a registration function or a striketrough function. Bleah. Y'all will just have to visualize the strikethroughs yourselves. :/

Okay, I read kind of slow, so I haven't finished the opinion, however- I do have a couple of comments. It appears from the comments here, and from a couple of the links that I did read, that the Judge spent most of her time on standing and gives the constitutional arguments short thrift. It may be that the judge is aware that standing is the easiest way to kick out a constitutional challenge and therefore she wanted to protect the standing issue. Let the Supreme Court go through its contortions while addressing the merits.

Further, even if the opinion is overturned, it is the law of the land until it is overturned. Even though both sides have apparently agreed to a stay of the order, it certainly puts the Administration in an interesting position: "What do you mean, the president is not abiding by the law?"

In the end, while I think that most polls do not show that the public has reached consensus on the issue of NSA wiretapping in general- I do think that it is fairly simply to show that it is not that difficult to get a FISA warrant, even after the communication has been intercepted, and that even the POTUS should comply with that. It depends on how you frame the argument- and the Judge in this case framed it in a way that puts the Administration on the defensive- the question is now being asked why the President does not have to comply with the law- rather than arguing about whether listening in on terrorist conversations is a good idea.

Finally, I have not abandoned my earlier post on the initial thread that this ruling is a political victory for the republicans in the upcoming elections.

Out on Bond

"Strength lies not in defense but in attack."
- Adolf Hitler

"Great liars are also great magicians"
- Adolf Hitler

"How fortunate for leaders that men do not think."
- Adolf Hitler

wait a minute, out on bond. Apparently, we are at war, congress authorized military force (AUMF), therefore the president does not have to follow the law when doing what he thinks is needed to defend the country, right? The Woo doctrine.

What Out on Bond and others don't realize is that the views of a lightly regarded liberal trial court judge on these important legal issues will have no persuasive effect in the court of appeals, let alone in the Supreme Court if the case ever gets there. The effect of her weak writing and analysis will be to provide an easy target for judges inclined to reverse her.

But Out on Bond is correct that the politics favor republicans when a liberal democrat judge throws out a terrorist surveillance program.

The Constitution is not a suicide pact.

That tears it. "Sharon" == "Charlie."

And if he's posing as either ariel Sharon or in drag, well, that's even creepier than he usually is.

It is doubtful this judge's opinion will carry any weight on an issue such as this, expecially if, as reported, it is not a very scholarly opinion.

Shorter brian: I read PowerLine so you don't have to!

FYI Sharon: Only cowards attack people through their spouses

Shorter brian: I read PowerLine so you don't have to!

Hey, in all seriousness that is one hell of public service.

I agree powerline is very good (it also is cricial of President Bush at times), and any of you folks with an open mind should read it, but I did not read it yet on this issue.

Swift, emphatic declarations are not the stuff of Constitutional Law.

This will quickly be stayed and more serious jurists/scholars will have more serious/thoughtful opinions on this matter.

to the mental halfwits who are actually dumber than the powerline lawyers and to casual racists, powerline would certainly seem very good, I agree.

Gregory, PaulB and others just called Abraham Lincoln and Supreme Court Justice Jackson and Goldberg idiots.

According to Wikipedia: Though the phrase, "The Constitution is not a suicide pact", echoes statements made by Lincoln, the precise phrase "suicide pact" was first used by Justice Robert H. Jackson. Later, Justice Arthur Goldberg wrote in one of his decisions, "[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact."

So. who's the idiot?

This will quickly be stayed and more serious jurists/scholars will have more serious/thoughtful opinions on this matter.

And when they come down against the Administration as well (remember Hamadan?), I'm sure you'll have a serious/thoughtful response on that as well.

And I'm Pope Benedict.

So. who's the idiot?

Anyone who would throw the Constitution out the window in fear of a few malcontents hiding in a cave?

By the way, if you're that eager to throw away your Constitutional liberties in favor of The Leader keeping you safe from the boogieman over the border, maybe you never were a liberal. Or maybe just as much a liberal as someone proclaiming themselves a Socialist for the Workers.

bin laden made cowards of many supposed liberals ... some have always needed the authoritarian to tell them what to do.

others just needed an excuse for the racism seething beneath a seemingly-civil exterior.

which type are any of the supposed "ex-liberals" in this day and age? ... the etiology of their personal cowardice holds little interest for me.

On previous occasions, I have stated that I didn't see how some one would have standing to challenge this program. So I was interested in the judge's reasoning on this issue. From Mark Levin's Blog at NRO, I got the full extent of the judge's reasoning on this very important legal point.

[T]he court need not speculate upon the kind
of activity the Plaintiffs want to engage in
– they want to engage in conversations with
individuals abroad without fear that their
First Amendment rights are being infringed
upon. Therefore, this court concludes that
Plaintiffs have satisfied the requirement of
alleging “actual or threatened injury” as a
result of Defendants’ conduct.

That's it. The Supreme Court has already ruled that a generalized claim of possible injury, especially a claim based on constitutional violations, is insufficient to grant a person standing. This decision will be overturned so fast that it make your head spin.

The judge also confirms my argument that no one will have standing to bring a legal challenge to this program, thereby precluding review by the judiciary over this exercise of Presidental authority. From the decision:

Although this court is persuaded that
Plaintiffs have alleged sufficient injury to
establish standing, it is important to note
that if the court were to deny standing based
on the unsubstantiated minor distinctions
drawn by Defendants, the President’s action
in warrantless wiretapping, in contravention
of FISA, Title III, and the First and Fourth
Amendments, would be immunized from judicial
scrutiny. …

The Court of Appeals will dismiss this action on the grounds that the Plaintiffs lack legal standing. For those of you who believe that the President is now acting illegally, better convince the Congress to impeach Bush because the courts are not interfer with the President's power to defend the nation from attack. I tell you, it's tough being this good. :)

Then don't we have a bit of a constitutional crisis?? If no one can gain standing to challenge a secret program because it impossible to find out who is harmed by it then individual liberties are up shit creek without a paddle.

However, I'm guessing that since he has a conscience, Anthony Kennedy will figure out a way to grant Plantiffs standing when this case eventually makes it to the Supreme Court.

mfw13:

There is no constitutional crisis. The branch of government that has the remedy is not the courts, but Congress. As I have said before, if the elected representatives of the American people don't have a problem with the President authorizing the NSA wiretapping program, the courts have no business second-guessing that decision.

Oh, and Justice Kennedy will not have the ability to figure out a way to grant the Plaintiffs standing since he doesn't sit on the Sixth Circuit Court of Appeals. And it has nothing to do with one having a conscience, but following the law, which is what he and all other judges take an oath to do to the best of their abilities.

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 a last resort, he obviously means that too: he devoted uncounted thousands of hours to serious, toughminded diplomacy during the same period. Some of it 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

'The courts have no business second-guessing that decision.'

Apparently, there is no precedent for judicial review. Brilliant.

"ex-liberal" wrote:

Gregory, PaulB and others just called Abraham Lincoln and Supreme Court Justice Jackson and Goldberg idiots.

Well, no, I simply pointed out that parroting that phrase was one of Charlie/Cheney/"Don P"/Thomas/Sharon's many tells. Of course, I'm not surprised at your dishonesty, "ex-liberal"; where would Bush cultists like you be without straw man arguments?

According to Wikipedia: Though the phrase, "The Constitution is not a suicide pact", echoes statements made by Lincoln, the precise phrase "suicide pact" was first used by Justice Robert H. Jackson. Later, Justice Arthur Goldberg wrote in one of his decisions, "[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact."

Interestingly, reading the full entry, I note that Lincoln appears not to have used that particular phrase, and indeed even Jackson did not (he warned of the "danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."). But I'm not surprised at your dishonesty, "ex-liberal". Where would Bush cultists like you be without dishoenst paraphrasing?

So. who's the idiot?

Well, you are, if you think that your dishonesty would withstand even a moment's scrutiny, or if you imagine that you don't have a sufficiently well-developed reputation for intellectual dishonesty that your ass wouldn't get fact-checked.

Moreover, while Justice Jackson may have had a point regarding that particular case, I contend that anyone who parrots the line "The Constitution is not a suicide pact" to suggest that we sacrifice the Conbstitution to whatever expedience the Bush Administration proposes -- notwithstanding, of course, the dishoenst presumption that said proposals have any positive effect on security anyway -- is not only an idiot but a coward unworthy of the term "American." You, "ex-liberal," by your failed appeal to authority fallacy, are all that, and dishonest to the core as well. But we knew that.

Patrick Henry wrote "Give me liberty, or give me death," and his words are immortal in the hearts and minds of every true American. One has to search Wikipedia for the obscure words of Justice Jackson. 'Nuff said.

Legal scholar Jeff Goldstein immediately puts the spotlight on the Judge personally ...

Ah, well then it must be a strong opinion, it that's all they've got.
.

As I have said before, if the elected representatives of the American people don't have a problem with the President authorizing the NSA wiretapping program, the courts have no business second-guessing that decision.

WTF? Did a self-professed lawyer just deny the validity of the judicial branch? Where do these dumbfucks come from?

The judge also confirms my argument that no one will have standing to bring a legal challenge to this program, thereby precluding review by the judiciary over this exercise of Presidental authority.

Huh? The quote you present from the decision doesn't "confirm" your argument; it presents the case that (1) the case meets the usual general standard for establishing standing, (2) even if they didn't, the issue presented has factors which weigh in favor of applying only the Constitutionally required minimal standards of standing to establish an actual "case or controversy", not the higher pragmatic standards usually used in the federal courts, because applying higher standards would leave Constitutional rights without effective protection.

You clearly disagree with the analysis here, but it is an outright lie to say that the analysis "confirms" your argument in any way.

From Mark Levin's Blog at NRO, I got the full extent of the judge's reasoning on this very important legal point.

No, you didn't. Or at least the excerpts you claim are the full extent are, in fact, not at all the full extent of the reasoning. Perhaps you should read the actual decision rather than relying on some blog to filter it for you.

'The courts have no business second-guessing that decision.'

Apparently, there is no precedent for judicial review. Brilliant.

Posted by: Chicounsel is an idiot on August 18, 2006 at 3:59 AM | PERMALINK

Wow, it is a real thrill that someone out there is so stymied by my argument that this is the best retort that they could come up with at 4 am. lol

But to address his or her "point," there would be judicial review available if and when someone who is or has been harmed by the NSA wiretapping program has a "case or controversy" to trigger the jurisdiction of the federal courts. Since none of the Plaintiffs in this case can show that they have legal standing to bring this claim, there is nothing for the courts to review.

PaulB would apparently be surprised to know that the Court itself found that Plaintiffs were in communication with individuals the government "had a reasonable basis to conclude" were terrorists. p.13 of the opinion.

The Court had to find that; without it there was no way standing could be found.

cmdicely:

I don't know how you can say that the judge doesn't confirm my position. She clearly states that if these Plaintiffs don't have standing, then "the President’s action in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, WOULD BE IMMUNIZED FROM JUDICIAL SCRUTINY." (Emphasis added).

And your second point is wrong as well. The law does not have differing standard of standing. The question for standing is simple and the same in all cases and is roughly: Has this person been injured in any legal recognized way by the acts complained of committed by the Defendants. If the answer is yes, that person has standing. If the answer is no, that person does not have standing and no viable legal claim for the courts to adjudicate.

So. who's the idiot?

Anyone who uses wikipedia as a source.

"the views of a lightly regarded liberal trial court judge'

"Lightly regarded" by whom, you racist, moronic piece of shit?

chicounsel:

cmdicely is a 2L, and a gunner at that.

interpret all of his comments accordingly.

(He is smart though.)

as for the rest of them: if you assert any result that they don't want to hear, they'll insist you're a troll and spend the rest of their time making semantic arguments without ever addressing substance. It can be quite amusing.

spend the rest of their time making semantic arguments without ever addressing substance.

Apparently this is Nathanspeak for "annoyingly insist on pointing out my errors, misstatements and outright lies, which continually humiliates me."

You lie, and call corrections of those lies "semantics." You refuse to back down from your lies, and wail that others are "just trying to score points" for correcting your dishonesties. On what planet is this behavior rational or adult? Dude, you are seriously not a player in this or any other conversation here.

Chicounsel: yet another person claiming to be a lawyer who doesn't even bother to read the actual decision, and so is doomed to speak nonsense.

Nathan: yet another person claiming to be a lawyer who instead of admitting his own short-hand version of plaintiff's stance short-changes the truth, spends hours making semantic arguments trying to demonstrate that apples equal oranges.

And wingnuts wonder why they have a reputation for being idiots.

I don't know how you can say that the judge doesn't confirm my position.

Because your position is that no one has or will have standing, and the judge's finding is that (1) the clients in the instant case meet the normal general standard for standing, and (2) circumstances relating to the policy in question would, even if they didn't, justify a lower bar for standing.

The latter statement does not confirm the former argument.

The law does not have differing standard of standing.

Yes, actually, it does; Standing analysis contains two broad categories of considerations, Constitutional and pragmatic. The Constitutional elements are, of course, generally fixed, the pragmatic ones can and do vary by context (as well as being amenable to direct modification by statute.)

The question for standing is simple and the same in all cases and is roughly: Has this person been injured in any legal recognized way by the acts complained of committed by the Defendants.

Well, sure, at the level the question is common to all cases. Of course, that doesn't really make the analysis the same, as "legally recognizable" is itself not a clear and consistent standard.

(In fact, what you refer to is a better "common language" recapitulation of the broader issue of justiciability, which includes but is not limited to standing; its certainly not a standard that is consistently applied to determine standing.)

cmdicely:
What you mean are that there are two general legal standing parameters: Constitutional and Prudential (not "pragmatic").

However, both of them rest on the same theory and in actual practice (which you are unfamiliar with) are argued the same way.

sonofgodzilla: actually, Bruce Hayden, among others, read the decision's take on standing exactly the way I did...Plaintiffs were de facto admitting to conversing with terrorists for purposes of establishing standing.

What people here are unable of comprehending is that for the Court to avoid the state secrets privilege she had to take the government's public statements as to who the government was intercepting at the government's word. If the Court had not done so, the Court would have actually had to engage with the state secrets privilege. So, since the government stated that it is only intercepting the communications of people who it had a "reasonable basis to conclude" were terrorists, the Plaintiffs had no choice but to assert that they were in communication with such people.

What the people on the other thread (and here) are incapable of comprehending is that if Plaintiffs didn't make this assertion they wouldn't have had standing. But this nuance is outside of their comprehension.

chicounsel:

Nathan is a lawyer, and so insecure that he insists on reminding everyone of that fact at every opportunity, and of appealing to his supposed authority as a lawyer every time one of his arguments is shot down.

Interpret all of his comments accordingly.

(He is dumb though.)

If you assert any result that he doesn't want to hear, he'll spend the rest of his time making semantic arguments without ever addressing substance. It can be quite amusing, in a sad, pathetic sort of way.

Soon, we will have a Democrat as President. I can't wait to see how the Bush supporters, so in love with warrentless wiretaps, feel about President Clinton having the limitless authority to order the IRS to listen in on their conversations. Just to make sure they aren't sending money to terrorists, of course.

What you mean are that there are two general legal standing parameters: Constitutional and Prudential (not "pragmatic").

No, what I meant was exactly what I said, not your grammatically incorrect "correction" with improper capitalization that adds, aside from its errors, nothing to what I said. But what you should have said, if you wanted to challenge my wording, is this:

What you mean here is that there are two general legal standing parameters: Constitutional and prudential (not "pragmatic").

But, really, I can't imagine why you would want to do that with all your complaints about people making semantic rather than substantive arguments.

However, both of them rest on the same theory

Well, no, they don't. They rest on different theory. They have their roots in similar concerns, in that the pragmatic (or "prudential" if you prefer; the words mean the same thing in this context, the latter is conventional in legal usage but more opaque in a general forum) considerations that underlie both the creation of the Constititional commands underlying one set of requirements overlap with the considerations that underlie the other, more flexible, set of requirements.

and in actual practice (which you are unfamiliar with) are argued the same way.

No, I'm actually not all that unfamiliar with the legal arguments made on standing in actual practice, but, your gratuitous attempts at ad hominems based on assumptions (which seem to be a key element of your argumentation; see your claim that I am an "gunner") aside, how they are argued isn't the issue here, the issue is what legal rules apply to deciding standing issues. (And succesful lawyers, it seems tome, in actual practice argue to the applicable rules, and take into account, e.g., the distinction between the Constitutional and prudential elements where that is relevant to the case at hand; I, of course, can't speak to what you do in practice.)

actually, Bruce Hayden, among others, read the decision's take on standing exactly the way I did...Plaintiffs were de facto admitting to conversing with terrorists for purposes of establishing standing.

And you, Bruce Hayden, and the unnamed others would all be wrong to interpret it that way. The Plaintiff's nowhere admit that they were conversing with "terrorists".

What people here are unable of comprehending is that for the Court to avoid the state secrets privilege she had to take the government's public statements as to who the government was intercepting at the government's word.

"Unable to comprehend" and "the Court...it" or "the judge...she" (but not "the Court...she")would be more correct use of language—though, in the former case, it would remain incorrect factually to all evidence, as everyone seems to have gotten that, but continues to object to your initial and now repeated mischaracterization which was inconsistent with that, but instead claimed that the plaintiffs admitted that the people they talked to were "terrorists", rather than people that the government had reasonable basis to believe were either members of al-Qaeda, members of groups in some way affiliated with al-Qaeda, or acting as agents of one of the preceding groups.

" They have their roots in similar concerns, in that the pragmatic (or "prudential" if you prefer; the words mean the same thing in this context, the latter is conventional in legal usage but more opaque in a general forum)"

of course...but it was fun to afflict you with your own medicine (yes I'm mixing my metaphors).

And cmdicely...I concede every other point you made.

"reasonable basis to believe"

you keep doing this.

the wording in the opinion is "reasonable basis to conclude" -- which is much stronger than a belief.

my troll has shown up.

that makes any discussion pointless.

bye.

I was going to run away anyway. I always do when I get my ass kicked here.

the wording in the opinion is "reasonable basis to conclude" -- which is much stronger than a belief.

The wording in the opinion is "reasonable basis to conclude" and "reasonable grounds to believe" in different places. But, no, despite the emotional charge words have outside of legal use, a "reasonable basis (or grounds) to conclude" has, in legal use, no denotative difference from a "reasonable basis (or grounds) to believe"; to conclude is merely to adopt a belief from some basis. In fact, the government's public statements describing the program (which, as you note, are what the standard has to relate back to) use "reasonable basis to believe" and "reasonable basis to conclude" and number of other similar formulations interchangeably.

cmdicely:

An interesting discussion as always, but the bottom line is that this decision will be overturned by the Sixth Circuit on lack of standing grounds. It already granted a stay so the ruling is not stopping the program. Once the Sixth Circuit rules, the Supreme Court will deny cert and that will be the end of the matter.

I feel confident enough in this prediction that I'm willing to put my money where my mouth is. Care to place a small bet on it? I'll even give some odds. Are you as confident in this judge's legal reasoning as I am in mine? lol

Nathan: the wording in the opinion is "reasonable basis to conclude" -- which is much stronger than a belief.

I'll reprint what I wrote in the thread below where Nathan also made this point:

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...."

sharon: The Constitution is not a suicide pact.

1776: "Give me liberty or give me death!"

2006: "Take my liberty, I'm scared to death!"

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