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Federal Court Rules Protecting America is Unconstitutional

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The ACLU has convinced a federal judge that monitoring overseas communications of terrorists is against the constitution. Despite the fact the preamble lists defending the nation as an acceptable federal government function, the ACLU and US District Judge Anna Diggs Taylor said that the risk "innocent" communications could be intercepted far outweighed the risk of Al Qaeda attacking the United States. Despite programs such as ECHELON, CARNIVORE, and others that existed happily (albeit controversially) under the Clinton Administration, the possibility that George Bush might actually defend the country is a threat the Constitution cannot bear.

Despite the evidence, the media still calls the case a matter of "warrantless wiretapping" despite the fact that the clear intention is to monitor international calls. This ongoing deception is an attempt to create hysteria that the US is becoming a "police state" and that the treats are from Republicans, not terrorists. This is the same political quarter that brings you the idea (despite all evidence to the contrary) that George Bush and not Al Qaeda is behind 9/11.

The judge in this case, an appointee of Jimmy Carter, doesn't seem to understand the difference between overseas surveillance and domestic surveillance. Will the CIA start needing warrant the next time the spy on a terrorist overseas?

According to the ruling:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Let's skip past the FISA court idea, one that is still in dispute publicly and in the courts (other district courts either ruled for the government or declined to rule at all) and discuss the First Amendment issue. Debating what due process should exist for wiretapping is something that can and will take place, however, the idea that plotting terror attacks against the citizens of the United States of America could even possible be protected by the First Amendment should make everyone who cares about the safety of their family cringe. What other possible meaning is there to that phrase?

Many scoffed at the idea of framing resistance to the Patriot Act and the "warrantless wiretapping" programs as an attempt to establish an "Al Qaeda Bill of Rights", however, with Judge Taylor's ruling and the help of the ACLU, the shroud of the First Amendment has been extended to protect those who plot to kill Americans.

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About John Doe

A political activist and security expert.
  • Headline made me laugh.

    Not for the reason you’d like though.

  • oh my… some fun with John , straw men, and ad hominem…

    let’s start where John sez…
    *The ACLU has convinced a federal judge that monitoring overseas communications of terrorists is against the constitution.*

    the very first line of his argument is a prime example of “framing”… in actuality, the Court ruled that wiretapping without a warrant is illegal


    see the difference?

    now, i’m all for protecting the US… but NOT at the cost of giving in to that which is being fought, allowing Fear to push aside the Principles that make US who we are… you know, like the Constitution…

    it appears this Judge agrees

    for all the bluster and spin.. it really IS just that simple

    the Judge sez ya gotta get a warrant before you can bug someone…

    you know… the Law

    like the FISA law which John is so quick to dismiss as an inconvenient Fact in his Article

    all that being said, i can Appreciate the Concern expressed in the Article, i just think much of it is misplaced

    and ANYTIME you hear or read a GOP partisan on the topic, ponder this little memo from the RNC on the topic…

    *To: GOP Campaigns

    From: NRCC Communications

    Re: Vigilance in the Global War on Terror

    Date: August 11, 2006


    Recent events have reminded us that we continue to operate in a pivotal phase in the Global War on Terror.

    In the days to come, you should move to question your opponent’s commitment to the defeat of terror, and in turn, create a definitive contrast on the issue.

    You will certainly benefit from bringing into stark focus the cut-and-run, surrender message that Democrats coast to coast are currently — and foolishly — embracing.

    To aid you in this effort, we are including three key votes related to the War on Terror as well as materials provided by the RNC.

    As always, please feel free to contact the NRCC Communications Division at (202) 479-7070 if you have any questions. *

    just sharing…


  • Gonzo, remind me again, how is wiretapping suspected terrorists a breach of the First Amendment?

  • I’m not a GOP partisan by the way… (see this as the latest example)…

    But hey, whatever makes it easy to stereotype your opponents…

  • again, you miss the salient Point when you are trying to “frame” the discussion the way you want it

    i will NOT co-operate in such

    instead i will state again, that it is against the 4th Amendment to wiretap/search ANY american citizen without a warrant

    those are the cases being objected about, the purely domestic incidents, as well as those involving an american on his phone inside the US

    what you leave out are the journalists whose calls were monitored without a warrant, among others (the Journalists being the basis of the 1st Amendment part of the legal battle)

    say it again…”innocent until proven guilty”

    now try “you need a warrant”

    and even obeying the Law, when it comes to the FISA laws… for all that you would like to toss that Law aside as irrelevant, it IS a Federal Law, and everyone is subject to it… even the White House.. especially the White House, since the Law was conceived and written to prevent just this kind of egregious abuse by an Administration

    so, tell me… how does it harm any investigation to get at least preliminary paperwork into a secret court up to 72 hours after you have set your “emergency” wiretap?

    how does it impede or harm an Investigation to show their work and probable cause AFTER they are allowed to gather said information for up to 72 hours before even being asked for it?

    and finally, how is it NOT the fault of the Administration, who controls both Congress and Senate, to legally re-work these Laws into what is desired by the Invesitgators and within the parameters of Constitutionality?

    i know these are tough Questions… but they are MUCH more accurate and relevant than the simple quip from you in comment #3 , John…

    reroll IRL and take both Int runes… heh

    you know i’m kidding there…


  • oh John, you may not want to be currently Identified as such, but your writing and positions clearly mark you

    are you stating that you are not a registered Republican?

    how about your own voting record? anything other than Republicans voted for?

    how many Independant or Democratic or Libertarian positions have you written about?

    be all that as it may, i did not refer to you specifically as a partisan, read more carefully… you will see i say it generically abotu reading or hearing a GOP partisan, and then quoted the memo from the RNC on the topic…

    just trying to keep it all straight


  • pleasexcusetheinterruption12

    I’ll say it again for you gonzo… gonzo has not at any point in this thread referred to you as a GOP partisan. So stop the indignant victim act.

  • pleasexcusetheinterruption12

    What you fail to acknowledge in this article is that the case was filed on behalf of U.S. citizens who make frequent international calls to the middle east – not on behalf of terrorists as you would have us believe. The ruling is solely on the issue of the domestic spying, U.S. citizens making international calls. I dont know about you but I thought the terrorist threat was almost entirely from foreigners so what does spying on the calls made by U.S. citizens have to do with fighting terrorism? Although the thesis of your article is that a ruling preventing spying on calls by U.S. citizens without a warrent would aid terrorists you offer no evidence of this whatsoever. Is it ourselves (U.S. citizens) we have to fear, or foreign terrorists? If it’s me you are afraid of, I can only offer your my sincerest promise that I am not a terrorist.

  • the idea that plotting terror attacks against the citizens of the United States of America could even possible be protected by the First Amendment should make everyone who cares about the safety of their family cringe

    This statement demonstrates that you haven’t a clue what the First Amendment is for let alone what the case was about. There is no one with even one sane brain cell who would claim that known terrorists have first amendment protection.

    The issue is that the president is not a king who can blithely ignore the Constitutionn and the Bill of Rights. There are legal ways to accomplish what he wants–he just doesn’t care about legality.

    All of us want an aggressive war on terrorism–something this administration has bungled consistently–but it can and must be done within the framework of our core values as a nation or we’re no better than those we seek to destroy.

    In Jameson Veritas

  • Lumpy

    This post is so remarkably wrongheaded I almost thought a democrat made it.

    The first amendment and this ruling suppprting it aren’t about protecting the rights of terrorists they’re about protecting all our rights. Information gathering software and blanket searches can’t tell the innocent from the guilty because that hasn’t been determined yet. So we have the presumption of innocence.

    This ruling doesn’t to anything to stop the FBI from going and getting a regular wiretap on an actual terror suspect.

  • pleasexcusetheinterruption12

    O right because all democrats are stupid..

  • IgnatiusReilly

    and now you know a conservative wrote it, lumpy.

  • JustOneMan

    Oh..no…more denial from the fringes on the left…

    Gonzo…are you that paranoid that the government will be listening to your phone calls? If they are as enlightening as your posts they can sell the tapes to insomniacs…

    ITS FUCKING WW III…you can deny it but it wont go away…

    What ever happened to belief in God and Country? We have slid into the 3rd world!

    Just my opinion of course

  • well, it appears that somebody needs a nap…


  • pleasexcusetheinterruption12

    Are you sure your are even talking about the ruling made by Taylor? Taylor’s ruling refers only to the validity of the defendent’s claim that

    1) Plaintiffs do not have standing to file the case because they have not sufferred specific loss due to NSA activities (Taylor says they have standing because they have sufferred specific damages caused by NSA for which they have legal standing to file grievance against (Taylor also notes the government itself has made it difficult for defendents to establish a specific effect on them because NSA does not provide pior or retroactive notification to the spying subjects as would be the case with warrants))

    2) To establish standing would require the disclosure of state secrets which are protected by legal precedent (Taylor ruled that the majority of Plaintiff’s claims do not require the revealment of state secrets – Plaintiffs were, not are not and will not request state secrets because they have sufficient information drawn solely from press releases by gov officials concerning the actions of NSA. Taylor did however dismiss Plaintiff claims of data mining because a trial of these claims would reveal state secrets.)

    3) The defendents (NSA) cannot establish a defense without the disclosure of state secrets. (Taylor ruled this claim disingenuous because after reviewing the state secrets herself she found that known of them could be used in any viable defense – furthermore the defendents claim that the President’s authorization of a warrantless wiretapping of international calls is legal under current law and thus have a viable defense based on their own public statements).

    and to the Plaintiff’s claim that

    1) They suffer irreperable damage because of the existence of the NSA’s spy program, and that this damage would be relieved by the closure of the program.

    2) The NSA program violates their first and fourth constitutional rights and statutory law (FISA). This is clearly established. Their rights under the 4th and FISA requiring the gov. to obtain a warrant before wiretapping have clearly been established and acknowledged by BOTH sides. Since you clearly need a refresher on the fourth i will quuote it for you:

    “The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    As this is an eavesdropping program on U.S. citizen phone calls the 4th is obviously applicable. As no warrants have been obtained previously or retroactively, the 4th is obviously in violation. You claim that this is not a domestic surveillance program. That claim is irrelevant, true or false. The phone calls are being made by U.S. citizens and are thus protected by the U.S. Constitution and current law. The violation of the citizens 4th ammendment rights has obviously incurred on their 1st ammendment rights since many of the people the Plaintiffs communicate with have refused to do so because of NSA warantless wiretapping. (Your claim that it is not warantless wiretapping is bogus, the Defendents, the Plaintiffs, the Courts, and the Bush whitehouse all acknowledge it is a warrantless wiretap program).

    3) The NSA program violates the doctrine of seperation of power established by the constitutionally granted powers to the executive branch. All decisions by the president must also be ratified by the U.S. Congress. The president claims he recieved authorization from Congress for warrantless wiretapping through Congress’s enactment of the Authorization for Use of Military Force follwing 9/11 (AUMF is also used to justify invading Iraq). AUMF DOES NOT however provide for warrantless wiretapping of international calls from the U.S. Furthermore AUMF has no legal standing over FISA which is the exclusive means of establishing legality of electronic surveillance.

    By authorizing the monitoring of international calls made by U.S. citizens over 30 times since 9/11 Bush has repeatedly violated the first and fourth ammendment rights of the citizens, as well as overstepped his bounds of authority to make said secret authorization in the first place w/o Congressional ratification as required by the constitution.

    Clearly Judge Taylor is upholding the constitution in ruling with Plaintiff’s claims 1,2 and 3. She is also following legal precedent in dismissing Plaintiff claims against data mining. It is also obvious that the Defendent’s claims that the proceding of the case would require revealment of state secrets is bogus. Finally it is obvious that the defendents have legal standing in the issue at hand as the NSA spy program has had obvious direct impacts on their careers and ability to communicate with clients etc.

    Now where have I gone wrong?

    If Judge Taylor is following legal precedent and upholding the constitutional rights of the Plaintiffs what more can be expected of her? What legal code would you have her follow?

  • DMD

    The intellectually dishonest arguments by the poster are amazing. (That is the charitable explanation–willful ignorance or outright stupidity the lesser one.)

    This fear-mongering about hair gel explosives and WWIII is friggin ridiculous. You guys are outright *aiding and abetting* the terrorists by doing the job of spreading terror for them! Then you turn around and accuse those who are uncowed by their *actual* accomplishments of being traitors? Seriously, WTF is wrong with you all? Do you not see this? Are you really that blind?

    The adherence to the system of checks and balances enshrined in the Consitution even in the face of adversity is exactly what makes us a civilized 1st world country worth being proud of. Throw that away and we have “slid into the 3rd world”.

  • pleasexcusetheinterruption12

    JOM – all this Judge has done is uphold the constitution of this country – read my preceding post. How can you complain she has abandoned God and Country?

  • JustOneMan

    Judicial activism is an usurption of the legislative powers of the legislature. This is just one part of the US’s slipping and sliding into the third world this ruling (WHICH WILL BE OVERTURNED)leads to the demise of the rule of law and democracy.

  • Judicial activism is an usurption of the legislative powers of the legislature.

    Sorry, but the legislature (you know, Congress) passed a law requiring a warrant (even after the fact, in certain cases).

    The president, not a part of the legislative branch, decided he didn’t need to follow the law. If anyone usurped the legislative powers of the legislature, it was the executive branch, not the judge in this case. The judge merely said the executive branch doesn’t get to decide which laws to follow and which to ignore.

    Checks and balances — hey, it really does work!

  • pleasexcusetheinterruption12

    JOM – what the hell are you talking about? Which law or part of the constitution has this judged ignored or misinterpreted? Did you read my post above or was it too long and complex for you? It’s pretty straightforward. FISA and the 4th require a warrant and reasonableness in all searches. The NSA is not using searches. The judge ruled they need searches. It’s a little more complex than that… but that’s what it boils down to. So where the hell do you get off saying she is exercising activism?

  • JustOneMan

    “So where the hell do you get off saying she is exercising activism?”

    “The judge merely said the executive branch doesn’t get to decide which laws to follow and which to ignore”

    The voice of those who are in denial that we are at war…too bad you are still delusional that things will return to pre-911 world…sad but it will not happen..

    In addition this is an activist Judge…the ruling will be overturned on appeal…how can a Judge tell the President how to conduct a war…where will it end…

    Hmmmm…So where the hell do you get off being such a niaeve moron?

  • I don’t know about anyone else, but I sure feel a LOT safer knowing my president thinks he can suspend the Constitution and, more specifically, the Bill of Rights any time we’re at war, whether it be with a nation or a dispersed group of terrorists. [/sarcasm]

    This war on terror will basically last forever. It will never be over, even if we succeed in stifling it quite a bit. According to JOM’s logic, this president and those that follow him can unilaterally decide that any part of the Constitution is moot, and all s/he needs to do is say we’re still at war in order to justify it.

  • A bit paranoid, are we? No one… NO ONE… has suspended the Bill of Rights. That simply is not reality.

    If you can’t deal with the facts, please tear up your voter’s registration card.

  • again John, you remain factually inaccurate…

    indeed, if the Adminstration ordered the wiretaps deliberately bypassing FISA (which they admitted) and there was an American on the domestic side fo the call (or e-mail, etc) then they indeed did violate the 4th Amendment of the Bill of Rights by very definition

    and that is exactly what the Judge in this case wrote in her Opinion…

    so, just stick to the Facts, eh?

    you might disagree with the Judge’s ruling…as the AG does ( especially since he wrote the legal opinions justifying these taps and so much else)

    in which case it may be SCOTUS who decides the final outcome, but the Judge did indeed rule that the 4th Amendment was violated by definition because no warrants were isued as per federal law

    so, rather than being snarky and wanting someone to tear up their voter registration card, i might suggest you go over to the math department, or even the Philosophy professor, and learn about Logic and recognizing facts

    just a Thought



  • Shredding FISA, which is debateable, at worst is shredding one statute, not the entire Bill of Rights.

    Try again.

    Also, this judge also ruled that it violated the **FIRST** Amendment. Explain to me how that works again?

    We’ll skip past the fact that this judge is one of the more overturned ones in the districts and that this is only one judge’s opinion of many judges who have ruled on it.

    Why don’t we hold off on impeachment until the Supreme Court decides.

  • well now John, it wasn’t FISA but the 4th Amendments protection from illegal search and seizure…

    FISA merely codifies a system to provide said protections under a specific set of circumstances so the government can do secret surveilance in the name of National Security

    and the First Amendment bit was to shield the Journalists involved as plaintiffs who were being wiretapped and thus inhibited and obstructed in the pursuit of their freedom of the press by the governments actions

    you really might want to actually READ the decision before you spout off, it coudl help you understand things before you type

    reroll IRL, take both Int runes.. it may help you get better at this


  • Shredding FISA, which is debateable, at worst is shredding one statute, not the entire Bill of Rights.

    John, the guy who hilariously titled this post “Federal Court Rules Protecting America is Unconstitutional” and who said in the post that “The judge in this case, an appointee of Jimmy Carter, doesn’t seem to understand the difference between overseas surveillance and domestic surveillance,” is calling ME out on a technicality of the language?


    John, honey, please learn how to write clear, objective, non-hyperbolic “articles” before you critique anyone else’s writing, mmmmmkay?

    And at least one reference to the First Amendment can be found at Findlaw, which reports that the legal precedent for requiring a warrant for electronic surveillance of U.S. citizens (doesn’t matter who’s on the other end of the line) goes back to Katz v. United States, whose decision refers to both the 1st and 4th amendments:

    The Government’s duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. This protection was even more needed in ”national security cases” than in cases of ”ordinary” crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.

    In other words, the rights of free speech (particularly, political dissent) and free association are threatened by warrantless surveillance of U.S. citizens.

    Also, in the case just decided, the plaintiffs included members of the press and media. That’s why the First A. applies here, specifically.

    Now, stop your whining and attacks and try to be a big boy for the rest of the day, okay?

  • JustOneMan

    pleasexcusethe..when you copy others posts and writings and post them without credit it is plagerism…the idea here is to have express your thoughts not cut and paste other writings

  • ndeed, if the Adminstration ordered the wiretaps deliberately bypassing FISA (which they admitted) and there was an American on the domestic side fo the call (or e-mail, etc) then they indeed did violate the 4th Amendment of the Bill of Rights by very definition

    On this one I have to defend Bambi to a limited extent. There’s a clear difference between violating the law and suspending or negating the law. The administration chose to violate the law in a limited, specific area until told they could not do so. That is NOT the same as suspending or setting aside the law in any general sense. In a way you could say that Bush was protecting the constitution by ignoring it rather than trying to change or pervert it.


  • for #29..


    so, am i protecting and defending the Law if i go an rob a bank, until i get caught at it?

    or am i still breakign the Law?

    it really is just that simple

    where the fuck does it say that the Executive can go by the laws it likes until it gets caught?

    especially silly things like the 4th Amendment to the fucking Constitution?

    one woudl think that those of a libertarian bent woudl be fucking pissed that the Executive has decided they can expand their powers and ignore the onstitution anytime they like as long as they don’t get caught…

    most absurd thing i’ve read in quite a while


  • Brian

    “Federal Court Rules Protecting America is Unconstitutional”… what a joke of a title.

    A *very specific method* of “protecting America” (and I use the term loosely) was ruled unconstitutional. You only cloud the issue (and reveal your blinding bias on this topic) when you post such sensationalized, hyperbolic nonsense.

    You apparently believes that if anything can be described as “Protecting America”, it is, by definition, Constitutional.

    There’s another name for that mindset, it’s called “The ends justify the means”, and it has been used to justify many evils throughout history…

    Please, stop being part of the problem.

  • Certain bloggers write headlines that are laughably wrong, then fill their articles with specious arguments and other ridiculous drivel. They do this because they know it will generate dozens of responses from people eager to point out their “mistakes.”

    Meanwhile everybody ignores intelligent, insightful, and well-reasoned articles with accurately worded headlines.

    If y’all’d stop feeding the absurdity, it’d shrivel up and blow away.

  • I’m done with comments.

    I’m not going to play in your fever swamps anymore.

  • lol…oh John, again, very nice try at “framing”

    you refer to other points of view as a “fever swamp” and yet you go on and not only display the overtly fallacious title of yoru Article here, but some of the outlandish and blatantly false (not to mention obviously slanted) statements in your Article

    so, rather than discuss and debate the merits of your Argument, you take your metaphorical “ball” and slink off home while tossing aside a snide bit of denigration calling dissenting views a “fever swamp”

    transparent at best, and woefully inadequate to boot

    enjoy yer day


  • I knew what this article was about the moment I say the boob by Phyllis Schlafly, the old hag

  • JustOneMan

    John Bambenek….great article…the proof that seems to validate the “truth” of your position is that it has all of the “delusional,left-wing,Bush hating,blame America first gang” festering like a boil on the ass of Helen Thomas!

    You know pleasexcusetheinterruption12, Nancy…I mean Gonzo, lori, et. al.

  • In a way you could say that Bush was protecting the constitution by ignoring it rather than trying to change or pervert it.

    Now, Dave, surely you recognize that you are stretching logic paper-thin…

  • another delusional fanboi has spoken…

    that’s right kiddies.. when you want to read the delusional ravings from factually challenged sociopaths, all you need to do is find something by the commenter in #36

    perfect case study


  • zingzing

    #36’s logic is also quite flawed. it’s not a matter of taste…

  • OK, we’re pretty much at an impasse here. There’s too much of an unknown variable that none of us except intelligence experts see.

    As for me, I don’t mind the government tapping my phones, because I am one among many who enjoy others hearing us talk (visit my blog! send me a trackback! comment on my latest post! download my latest podcast!).

    So here’s my solution: Make warrantless wiretapping voluntary. Everyone sign up on a sheet if you don’t mind the government spying on you. Then take the list of people who didn’t sign up, and label them as suspected terrorists.

    Ah, the system works.

  • Suss sez…
    *There’s too much of an unknown variable that none of us except intelligence experts see.*

    well now, i hafta disagree with ya here.. doesn’t matter WHAT it is.. they need to get a fucking warrant

    hell, under FISA there is NO excuse not to, plant yer wiretap and wait up to 72 hours to even submit the requiest to the FISA court… what more do they want?

    and if there is more they want, why haven’t they proposed it to the GOP controlled House and Senate that would have rubber stamped it at anytime they were asked to?

    as fer yer soloution…


    funny stuff…

    unfortunately, there is a certain segment who would do EXACTLY that…

    which even more clearly illustrates the need for Constitutional protections such as the ones that were ignored by this Administration

    luv ya Suss….


  • pleasexcusetheinterruption12

    JOM – Im a raving liberal because I appreciate judges that uphold the 4th and require the govt to get a warrant before tapping my phone? And where do you get off saying I plagerised? That *factual* explanation of the case was entirely my words. Yes – they are the *same facts and logic* the Judge uses, but Im not going to intentionally make my facts wrong so that they are not the same facts in the Judge’s report. I can only assume that you did not read my *factual* explanation and merely assumed it was plagerism because it is too long and confusing for you.

  • pleasexcusetheinterruption12

    For a factual detailing of the the motions and the judges ruling and reasoning in this case … see post # 15. If you spent the time to read John’s drivel you have the time to read the facts as well. If you think my language is anything like Judge Taylor’s, I appreciate the complement JustOneMan (it’s not – i spent hours sorting through her 44pg ruling)

  • I’ve said it before and I’ll say it again. Bambi may be wrong about many things, but FISA is NOT the 4th Amendment. In fact, FISA violates the spirit if not the letter of that Amendment in its own right.


  • #44 sez…
    *In fact, FISA violates the spirit if not the letter of that Amendment in its own right.*

    prove it.. show your line of Reasoning… otherwise i call bullshit

    and warrantless wiretapping violates BOTH FISA in this case AND the 4th amendment

    no matter how hard you try and spin it, the two are NOT mutually exclusive

    and i don’t understand how you can bitch about FISA… what parts of it do you think are unConstitutional? and why?

    and if so, how much worse are some provisions of the PATRIOT act?

    having read the FISA statutes, i can’t see the problem, it appears to be a fine fit for handling EXACTLY the kind of thing this Administration says it wants

    the ONLY reason that there could be for completely bypassing this system, is because you would not want ANY kind of judicial review for a number of reasons

    such as a wide cast, indiscriminate net of taps

    or taps that don’t even have reasonable suspicion, much less probable cause

    or taps for other than law enforcement reasons

    did i miss any legitimate Reason for bypassing the fucking federal laws covering this?

    did i miss ANY kind of legitimization of a blatant violation of the 4th Amednment rights of any americans who were tapped without a warrant?

    i don’t fucking think so


  • pleasexcusetheinterruption12

    actually gonzo, Dave is exactly right. FISA holds the govt to a much less stringent standard than title III previously did. It makes concessions to the needs of the executive branch to protect national security including the following:

    An increase of the typical 30 day period of tapping to 90 days.

    It allows for a retroactive acquisition of a warrant after wiretapping has already begun (possibly in violation of the 4th which would seem to require the warrant be acquired before the search).

    It reduces the standard of probable cause to make it easier to obtain a warrant (possibly in violation of the 4th which would seem to require reasonableness in ALL searches).

    Warrantless wiretapping violates both current law (FISA) and the 4th ammendment because it violates by its very definition the right of citizens to be protected from unreasonable searches by requiring the government to obtain a warrant (the 4th ammendment).

  • well am i Aware of those provisions…

    as i noted earlier, and as Dave well knows… i have actually read all of the FISA statute…

    my Point is that the Law covers FOREIGN SURVEILANCE… and thus is tailor made for the purpose under Question (read:combatting terrorists) and that it’s strictures cover regulations for dealing with other than Americans as far gathering Intelligence deemed needed by the Executive

    now, to mention that the law has been on the books since ’78 , is memory serves, also shows that for the limited and clearly delineated purposes outlined by the Law in question.. it has stood the test of Time and been under both Congressional and Judicial review… thus providing the needed checks and balances for the requirements of the Executive in dealing with the “practical” neccessities required when dealing with FOREIGN INTELLIGENCE gathering…

    you see, the FISA statutes only apply to calls where one end of the connection is outside the US itself…

    any purely domestic calls require ALL the more stringent procedures under full 4th Amendment protection (note that Dave thinks there is still a need for this to be ruled on by SCOTUS due to the nature of telecommunications)

    and the fact is that i totally agree that ANY warrantless wiretapping is against the 4th amendment… i add that those communications tapped that have one end in a foreign country ALSO violate the FISA statutes because the Administration did not get the required warrants from the FISA court…

    from what we understand currently, the FISA court wasn’t even aware of the current program of wiretappig until the Press broke the story

    hope that helps clarify


  • Gonzo, I’ve read FISA too. And as you point out and then don’t consider, FISA applies to conversations between someone in the US and someone outside of the US. The person in the US by virtue of being a resident should be protected by the fourth amendment REGARDLESS of who or where he’s talking to.

    Plus there are the other issues which PETI brought up.

    As for wanting FISA and this ruling to go before the SCOTUS, I generally want everything to go to the SCOTUS so we can get a final and definitive ruling on it. Not until we reach that point can the issue truly be said to have been settled.


  • JP

    ‘Protecting America is Unconstitutional’?

    Hahahahahahahahaaha!! And that’s supposed to make me want to read this article?

  • well …for Dave in #48…

    i guess i just can’t win… on one hyand you want me to consider the “practical” factors of an Intelligence swervie and it’s need to gather information

    so i do, and point out that that is exactly what the FISA laws are about

    then you hop over and think even those are too loose…fair enough

    on top of all that you defend and excuse the Administration for obeyiong NONE of those, and then make the noise that you are merely explaining , not defending…

    does it get crowded inside yer head holding onto all the dichotomy?

    no worries, points taken…

    it winds up that no matter what stand a person takens on this, if they want the Law followed at all, the Administration failed abysmally by NOT obeying ANY of the Laws that apply by the President’s own public admission…


  • Gonzo, I’d just like to see you think outside your little dogmatic box for a bit and consider the situation from a different perspective. Your inclination to righteous absolutism is irritating in a world of moral relativism.


  • well Dave, i don’t have any kind of dogma, and burned any semblance of a box down many years ago

    nice try at “framing” me

    i don’t deal in “morals” either… never have

    i DO deal in Ethics tho

    and you will have to pry my adherance to Ethics from my cold, dead fingers

    bottom line… i hold our Elected officials to the standard of Ethics as outlined by our Rule of Law

    you appear more than willing to toss that aside for partisan expediency

    i’m not

    fair enough, but due to that one simple Observation, even tho we agree on many topics… we will constantly be standing on opposite sides of the fence

    also fair enough

    so, i have considered the “perspective” you are laying out…and completely Reject it as i state in this little ditty…
    *it winds up that no matter what stand a person takens on this, if they want the Law followed at all, the Administration failed abysmally by NOT obeying ANY of the Laws that apply by the President’s own public admission…*

    to me… NO ONE is above the Law in the US

    i guess your mileage varies


  • You just can’t get away from the ‘partisah’ canard, can you?

    Nothing I have to say on this topic is partisan. I’m just trying to inject a small touch of pragmatism.


  • lol…nice try Dave

    but your “pragmatism” has ALWAYS come out to benefit the GOP in the entire time i’ve been here

    i can count on the fingers of Captain Hook’s shiny hand how many times it has been otherwise

    which is NOT any kind of problem, your Perogative and i will defend your Right to do so

    however, it does strip away any veneer of objectivity you could possibly want to cultivate, especially when you have to go through the contortions of sophistry needed for some of your stated opinions

    but, like me, you are completely consistent for the most part

    i can count on you to take the Administrations side just about every time , the exception is when they have not done some of the things you want enough (read: tax cuts)

    so, i appreciate your trying to spin me into your little bubble of GOPism….

    ain’t gonna happen

    i’ll stick to calling them as i see them from outside the Parties as an Independant…

    and using Ethics as my yardstick

    fair enough?


  • RedTard

    GM makes a compelling case that the wiretapping is illegal. I certainly understand the desire to ensure that our system of laws, which is all that holds our ‘civilization’ together is kept firmly in place.

    However, the righteous indignation wasted because some computer is checking overseas calls for terror codewords could better be spent on the LEGAL FACT that the government can and does take away tens of thousands of residents’ homes and hand them to rich developers every year. The LEGAL FACT that collective punishment and discrimination is being handed down against white and asian males in everything from contracting quotas to voting regulatons. The fact that average hard working Americans have absolutely no fucking rights or privacy whatsoever coupled with stratospheric corruption, wasteful spending, and unprecedented levels of general government control freakism bug me alot more than the fact that the .005% of the population that makes calls to Tora Bora is now too embarassed to have phonesex.

    If you have a job you can be told what to do in your offtime, your phonecalls, emails and other communications are monitored, your own body can be invaded with zero fucking cause just to dredge something up. The government sends you bills from inspectors and for registrations and taxes and from automated third party ticketing systems and you better fucking shut your mouth, check guilty, and pay up or you’ll be dragged like a criminal into court and forced to prove your innocence, no warrants, no CNN, and no ACLU.

    We’re fighting over the technical aspects of jaywalking while the the rest of the government is laughing and legalizing our collective rape.

  • Brilliant point, RedTard. Let’s start with the most gross abuses at home which have been going on for years, starting with asset forfeiture for the drug war and eminent domain seizures for hooked-up developers.

    And Gonzo, if I seem partisan it’s only because pragmatism and common sense have so little in common with the politics of the left.


  • Dave, pragmatism and common sense are unrelated to your personal politics so please don’t try to colonise and/or pervert such fine words in some bizarre “1984”-like way.

  • pleasexcusetheinteruption12

    Jeez guys i dont even understand what your arguing about any more. I agree with almost everything both of you have said, except Dave’s statement:

    On this one I have to defend Bambi to a limited extent. There’s a clear difference between violating the law and suspending or negating the law. The administration chose to violate the law in a limited, specific area until told they could not do so. That is NOT the same as suspending or setting aside the law in any general sense. In a way you could say that Bush was protecting the constitution by ignoring it rather than trying to change or pervert it.

    …because he says Bush is “ignoring” the law “until told not to do so,” when the fact is, he has been told not to do so, is still doing so, and is actively defending his right to do so. By defending his right to do so, he is not merely “ignoring” the 4th, but trying to degrade the 4th as something subject to executive discretion.

    His mere authorization of this is a frightening usurption of executive power. I dont know about you all, but in 4th grade they taught me that if the executive wants to create a new probgram (in this case a warrantless wiretaping program) it must be ratified by a legislative branch vote.

    Bush has secretely, and therefore illegally, authorized the NSA’s warrantless wiretapping over 30 times. He doesnt have to suspend the 4th or FISA in any official sense as Dave says, if he can just secretly violate it at his discretion. By defending his right to secretly violate the law, he IS attempting to “suspend or negate the law.” Not merely “temporarily ignoring” it as you said, Dave.

  • pleasexcusetheinteruption12

    If you want to get technical and argue about tenses, I suppose you could say he has temporarily ignored it, and is attempting to suspend or negate it.

  • Clavos

    RedTard, Your #55 is excellent. The thread so far does seem to have been straining at a gnat while swallowing the camel, and no one, until you, has made (or admitted to) this point, which is central to the whole eavesdropping argument:

    However, the righteous indignation wasted because some computer is checking overseas calls for terror codewords

  • pleasexcusetheinteruption12

    That, Clavos, is likely because this article appears under the title “Federal Court Rules Protecting America is Unconstitutional” and not “Government Eavesdropping Makes a Joke Out of Personal Privacy.” The article and subsequent comments are pursuent to the recent court ruling of Judge Taylor. That’s not to say Redtard’s comments deserve no attention either.

    In practical terms you are correct, relatively little loss is sufferred because of Bush’s breaking of the 4th. However, there is some loss suffered and in a nation guided by the principles of the Constitution, such flagrant disregard and even rewriting (in practical terms-if not legally) of the Constitution should not be tolerated.

  • pleasexcusetheinteruption12

    The secret authorization of warrantless wiretapping without the consent of the people’s representatives is not something to be taken lightly. I know not everyone takes the slippery slope argument seriously, but if he can authorize that secretly, what else can he authorize secretly?

  • Clavos

    This is a good time to note that many pundits and legal experts are saying that judge Taylor’s ruling is flawed and not good law, as this WaPo editorial discusses.

  • pleasexcusetheinteruption12

    That article Clavos discusses none of the legal precedent, or legal standing for or against the NSA’s program. It only brings up a few Taylor quotes that might be interpreted as somewhat unscholarly. It then complains about the page numbers devoted to certain aspects of her argument. Finally, it discusses none of what she actually says. It discusses none of the logic or legal precedent she uses. In short it finds nothing wrong with the ruling and only finds it lacking in some aspects (for which the author provides scant evidence). The author complains solely of the way the judge explained her ruling. He provides zero evidence that the Judge’s ruling was wrong or that the NSA’s program is constitutional. In fact, he seems to see the ruling is correct, but she explained it poorly.

    If you want to bring into question the legal basis for the ruling and that it is “flawed” as you suggest, perhaps you should read the 44 pg ruling and tell me where it goes wrong. Or you could read my 2pg summary of the ruling at post #15. I assure you I have done my best to stick the logic and facts of Judge Taylor. I have left out large portions of the legal precedent Judge Taylor sites. Nearly every point she made was backed up by several examples of precedent.

    I have not heard a single comment attacking the logical reasoning of Judge Taylor. I would be impressed, surprised, pleased, and happy to respond to any comment by you Clavos, or anyone else referring to and attacking the actual legal argument made in the ruling “discussed” in this article.

  • Clavos

    PETI 64,

    Here’s one, from the New York Times, which in turn, cites several others. (requires registration).

    And here’s another, from NRO.

  • pleasexcusetheinteruption12

    Ok your NRO article is much better than that other one.

    However, the only objection to which he gives any evidence of is his objection to the Plaintiff’s standing. Even if the Plaintiff’s dont have standing, that says nothing on the constitutionality of the NSA warrantless wiretapping.

    I have to admit when I remember cringing when I read the second statement he sites the first time because it almost says “they dont have standing but im granting it anyways so I can rule on the constitutionality of the NSA program.”

    However, just because she says that “it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants” doesnt mean they dont have standing. Note that she uses the phrase “unsubstantiated minor distinctions.” In reality, she is merely siting the importance of ruling that they have standing.

    The comment is out of context. She mentions the importance of giving standing AFTER she points out that because the wiretapping is warantless, there is no way to determine if you have been tapped. There is no notification prior, or afterwards, that you have been subject to wiretapping. This is one reason establishing standing is difficult for the Plaintiffs. They cant actually prove they have been tapped. However, the government has publicly declared them to be the type of people they are tapping. And Judge Taylor then provides ample legal precedent explaining why they dont actually have to have been tapped, and the fear that they might be tapped is enough to establish standing.

    The authors quotes are out of context and ignore the 15+ other pages she devotes to establishing standing, which I will not explain here due to length.

    With respect to the author’s second point, he provides no reference of any of the court cases establishing “the president’s inherent constitutional powers as commander-in-chief.”

    Taylor does however reference the supreme court case Zweibon, in which “Judge Wright enumerates a number of Defendants’ practical arguments [for executive inherent powers] here (including judicial competence, danger of security leaks, less likelihood of criminal prosecution, delay, and the burden placed upon both the courts and the Executive branch by compliance) and finds, after long and careful analysis, that none constitutes adequate justification for exemption from the requirements of either FISA or the Fourth Amendment. Zweibon, 516 F.2d
    at 641.”

    In short, she is saying getting a warrant to wiretap will not inhibit the government from any of its practical necessities for which it recieves inherent powers.

    She also adresses your articles complaint by explaining,

    “The duties and powers of the Chief Executive are carefully listed, including the duty to be
    Commander in Chief of the Army and Navy of the United States,49 and the Presidential Oath of
    Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”50
    The Government appears to argue here that, pursuant to the penumbra of Constitutional
    language in Article II, and particularly because the President is designated Commander in Chief of
    the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
    We must first note that the Office of the Chief Executive has itself been created, with its
    powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.”

    If you see something wrong with that explanation, let me know.

    3. As to your author’s third point, he is correct, it does read like a political screed on several, rare, and justifiable instances.

    Finally, I think it is worthwhile to note your author is also a former federal prosecutor who is apt to side with expanding executive power.

  • pleasexcusetheinteruption12

    My quotes come from Judge Taylor’s ruling

  • Clavos

    PETI, Did you read the NYT piece I cited? I thought that was the stronger of the two.

  • pleasexcusetheinteruption12

    No I didnt read the NYT article, I meant the the NRO was stronger than the WaPo article. I’ll go see if i can read the NYT article. Either way, the WaPo and NRO articles say nothing of Judge Taylor’s reasoning. The only worthwhile thing either said was the first point in the NRO article, which as I pointed out was entirely out of context and ignores the 15+ pages she does spend establishing the Plaintiff’s legal standing. Neither have said a single word concerning the constitutionality of warrantless wiretapping. And yes the NRO article is right, she becomes a little too indignant in her wording once or twice. But that doesnt necessarily say anything on the rationality of the ruling.

  • Clavos

    Fair enough. I’m interested in your reaction to the NYT.

  • pleasexcusetheinteruption12

    Ok obviously there’s much more to this NYT piece because of the authority of those cited.

    However, I will point out the main thrust of the article is again against its rhetoric, not it’s reasoning, and esp. not its conclusions. Only one “expert” was quoted as being opposed to the conclusions of the ruling and he was complaining she failed to refer to the opinion of the FISA Court which contradicts her. However, it makes sense that she would not concern herself with the opinion of the FISA court since the precedent she uses comes from the Supreme Court. Never mind the fact that her ruling questions the legality of the FISA court itself.

    Your article makes two main attacks on the legal basis for her decision.

    1. She does not adress established exeptions to the 4th.

    “But scholars said she failed to take account of the so-called “special needs” exception to the amendment’s requirement that the government obtain a warrant before engaging in some surveillance unrelated to routine law enforcement.”

    Well first of all, it’s obvious to anybody there are no exeptions in the 4th in the constitution. However, the Supreme Court has granted several which she does adress.

    She cites the special needs of the government established in Warden v Hayden, Veronia School District v. Acton, and Michigan Department of State Police v. Sitz. She finds that the needs of the administration meet none of these standards.

    She also cites the practical needs Judge Wright enumerates in Zweibon . I quoted these above. The governments needs here meet none of those standards.

    She also adresses the Youngstown case in which the Truman adminstration argued getting a warrant was too cumbersome and delayed investigations. She points out Keith and Hamdi offer solutions to this, possibly including retroactively obtaining a warrant. The Supreme Court in Youngstown found that obtaining a warrant would not limit any investigation so much as to necessitate violating the 4th ammendment. Taylor found this administrations argument for “speed and agility” as weightless as the Truman administration’s.

    She adresses any possible exceptions to the 4th as far as I am concerned. If you know of any other possible exceptions grounded in legal precedent I would be glad to hear them.

    2. Your article also asserts that her idea of a chilling affect of Plaintiff’s 1st ammendment rights is “innovative” and “not a particularly good argument,” which besides being vague does not necessarily mean it is wrong.

    The article states “She ruled, for instance, that the program, which eavesdrops without court permission on international communications of people in the United States, violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored.”

    The idea of the chill affect is grounded in Supreme Court precedent.

    First she sites Marcus in which the court wrote “that unrestricted
    power of search and seizure could also be an instrument for stifling
    liberty of expression.”

    …then Zweibon in which the court ruled that the tapping of an organization’s office phone may limit membership thereby enfringing on the organization’s 1st ammendment right to freedom of association.

    That is exactly what is happening here. Finally, the idea of a chill effect is just common sense and backed up by the Plaintiff’s statements that their clients and former contacts will not speak to them on the phone for fear of the possibility of a wiretap. The idea a client may not want to talk on a line is perfectly logical to me.

    It is important to note that some of the Plaintiff’s are attorneys who can no longer communicate with clients who fear a wiretap. And of course you and I know, attorney-client privelage is well established in this country.

    Other than those two points, the article only refers to the rhetoric she uses, not her reasoning.

  • Clavos

    Point to PETI. I’ve been looking for, but have not found an opinion in re judge Taylor’s reasoning.

    However, I found many sources critical of the ruling on rhetorical issues and virtually all predict the ruling will be overturned on appeal for those issues.

    So, PETI, we’ll have to agree to disagree and wait to see how it plays out in the higher courts.

  • To go back to RedTard’s point again, I have to reiterate that there are so many gross violations of the 4th going on, and ridiculous and accepted exemptions like some of those PETI points out, that what Bush has attempted to do is laughably trivial in comparison.

    Why draw the line here, when we’ve allowed the line to be trampled to non-existence in service of the drug war, school security, road building and a dozen other pet issues. If we start with opposing wiretaps we ought to carry on to restore the 4th across the board.


  • Dave in #73 sez…
    *If we start with opposing wiretaps we ought to carry on to restore the 4th across the board.*

    Quoted for Truth

    sign me up…


  • pleasexcusetheinteruption12

    Clavos #72, obviously our personal opinions on the appropriateness of the program clash, and your entitled to your opinion. However, 9/10 legal scholars in your article say the wiretapping program is should/likely will be struck down. So from a legal stand point, I’ll wager the courts will end up on my side (for Taylor’s reasoning or some other reasoning).

    Dave #73: Those exceptions I pointed out actually may be justifiable. I had an interesting discussion today about why certain rights are not absolute. For example what if two persons rights clash? Whose right’s should the court favor? If I understand correctly courts have prohibited the yelling of “FIRE!” in a building because, while the 1st amndmt right to do so may be protected, so too are the rights of life, liberty and the pursuit of happiness for the other 500 people in the building who may be injured or killed in the unnecessary rush to the exits.

    After this discussion I remembered reading in several of the court rulings specifically concerning those 4th amndmt exceptions you and I mentoned, the need to strike a balance between the needs of the executive and the 4th ammenment right’s of the citizens.

    At first I thought this was bowing out to “the needs of the executive” to make the executive happy, even if it does violate the 4th.

    But in reality, if the exceptions protect other citizens’ right to live, whose side should the court rule on? If the exception would save 100 lives in total, do the lives of those 100 citizens who are *also constitutionally entitled to life liberty and the pursuit of happiness* justify violating the 4th ammendment rights of 1000s or even 10000s of citizens? What if the exemption would have only saved 1 life? Is it still worthwhile?

    Protecting the 4th ammendment rights of one group violate the 5th ammendment right to life, liberty and property of another group.

    It’s a more complex issue than absolute adherence to the 4th.

  • Mohjho

    I think this administration would get a little more sympathy in nudging the law of the land if the majority of the people honestly felt that the government was capable of using the wiretap information to actually fight the terrorists.
    The perception of our leaders is one of incompetence.
    This bloated and warped bureaucracy seems incapable of nonpartisan or efficient use of very complicated strategies no matter how much money we give it. Our security apparatus has the best equipment, best personel, high ideals and effective laws; its the leadership that is lacking.

  • *also constitutionally entitled to life liberty and the pursuit of happiness*

    There isn’t actually a constitutional guarantee for these specific rights.


  • pleasexcusetheinterruption

    The fifth Dave, it’s in the fifth.

  • Clavos

    PETI 75:

    The hits keep coming…

    The New York Times, again.


  • pleasexcusethei

    The author says nothing your first two articles dont say…plus it is mostly unfactual framing based on the opening couple of paragraphs.

  • Clavos

    It’s gonna get kicked, PETI…Mrs Taylor screwed up.

  • Lumpy

    Clavos that’s a pretty powerful argument in that article. I had heard similar statements from right wing blogs and talk radio and dismissed them as blather along with the comments that judge taylor is senile and such. The Althaus article made me tqke the criticism of the decision more seriously.

  • Clavos

    Lumpy, When even the NYT publishes disses of the decision, it’s telling.

    Check out the NYT link in #65, too.


  • pleasexcusetheinterruption12

    Bull lumpy. It has 0 good arguments. Just about the only thing it says directly referring to the case is that a professor thinks her interpretation of the fourth is wrong. The rest is just framing based on that sole opinion. If you dont take that initial statement on the author’s word, the rest of the argument is mute, even if it has some very clever logic to it (which it does).

    His two articles in #65 have *slightly more* specific objections to the ruling. They DO NOT, however, say it was the wrong ruling. In fact, most of the articles Clavos has cited have said it was the CORRECT RULING, even if her rhetoric was a bit off.

  • pleasexcusetheinterruption

    How can you say the decision will be kicked if your WaPo article and your first NYT article both say the decision was correct? And your other two articles fail to establish anything wrong with her ruling, even if they do have a disaproving tone. (NOTE: none of your four articles even suggest the decision will be overturned – even if they disagree with the decision).

  • Honestly, I was surprised to see even this many articles which have qualified objections from knowledgable people to the ruling. One side has been saying the ruling is perfect and the other side has been saying it’s insane – far too much and too extremely. It’s just interesting to see some rational opinions which find it somewhat flawed.

    And PETI, the word is ‘moot’, not ‘mute’ in the context in which you used it. It’s actually a legal term from Anglo Saxon law.


  • Bambenek:
    This is embarrassing. Read the opinion next time before you spout off. Better yet, you should probably refrain from discussing legal matters lest you make an ass of yourself again.