Faith & Social Justice: In the spirit of Richard Overton and the 17th C. Levellers

A Victory for Civil Liberties and the Rule of Law

Wow! We may actually still have an independent judiciary. The “unitary Executive” may actually have to bow before the checks and balances the Framers built into our system. I could live to see our empire become, instead, a democratic republic again.

As the American Civil Liberties Union reports here, a federal judge has struck down the NSA warrantless domestic spying program as unconstitutional! Today, in ACLU v. NSA, U.S. District Court Judge Ann Diggs Taylor ruled that the warrantless spying program of the NSA violated the rights to privacy protected by the 1st & 4th Amendments to the U.S. Constitution and noted that this specific action was illegal under the Foreign Intelligence Surveillance Act (FISA) passed by Congress in the wake of Watergate and similar scandals. In her ruling, Judge Taylor noted:

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.

Absolutely right, Judge Taylor! But, after the GOP party bosses got to him, Sen. Arlen Specter (R-PA), initially a strong opponent of this illegal program, is trying to lead Congress to rubber stamp it retroactively. We citizens have to do our part to reclaim our freedoms and refuse to live in fear. Tell Congress to stop this rubber stamp and stand up for the rights of the people, by taking action here. Then tell others. Blog it, email it, and write letters to your local editor. Call Congress and let them know: They work for you and and you demand that they not give into tyranny in the name of fighting terrorism. We can be safe and free as a people: But only if we the people insist on it. Do so today.

August 17, 2006 - Posted by | citizenship, human rights.


  1. I found the ruling encouraging also. Still, the neocons are appealing the case and I am not too confident in the Supreme Court these days.

    Comment by runbdp | August 18, 2006

  2. Wow! We may actually still have an independent judiciary.

    “Independent”? Why? Because a Carter appointee who is very much on the left, made a misguided federal court ruling?

    The ACLU has been against every anti-terror program. They will get us killed.

    This comes in wake of the recent British terrorist airline plot that had been averted, in part, thanks to the NSA program.

    Here are some other successes, due to the same:

    1. The West Coast Airliner Plot: In mid-2002 the U.S. disrupted a plot to attack targets on the West Coast of the United States using hijacked airplanes. The plotters included at least one major operational planner involved in planning the events of 9/11.

    2. The East Coast Airliner Plot: In mid-2003 the U.S. and a partner disrupted a plot to attack targets on the East Coast of the United States using hijacked commercial airplanes.

    3. The Jose Padilla Plot: In May 2002 the U.S. disrupted a plot that involved blowing up apartment buildings in the United States. One of the plotters, Jose Padilla, also discussed the possibility of using a “dirty bomb” in the U.S.

    4. The 2004 U.K. Urban Targets Plot: In mid-2004 the U.S. and partners disrupted a plot that involved urban targets in the United Kingdom. These plots involved using explosives against a variety of sites.

    5. The 2003 Karachi Plot: In the Spring of 2003 the U.S. and a partner disrupted a plot to attack Westerners at several targets in Karachi, Pakistan.

    6. The Heathrow Airport Plot: In 2003 the U.S. and several partners disrupted a plot to attack Heathrow Airport [outside London] using hijacked commercial airliners. The planning for this attack was undertaken by a major 9/11 operational figure.

    7. The 2004 U.K. Plot: In the Spring of 2004 the U.S. and partners, using a combination of law enforcement and intelligence resources, disrupted a plot to conduct large-scale bombings in the U.K.

    8. The 2002 Arabian Gulf Shipping Plot: In late 2002 and 2003 the U.S. and a partner nation disrupted a plot by al-Qa’ida operatives to attack ships in the Arabian Gulf.

    9. The 2002 Straits of Hormuz Plot: In 2002 the U.S. and partners disrupted a plot to attack ships transiting the Straits of Hormuz.

    10. The 2003 Tourist Site Plot: In 2003 the U.S. and a partner nation disrupted a plot to attack a tourist site outside the United States.

    Judge Taylor’s decision is binding ONLY in her court; no other federal judge is required to follow her ruling.

    I am betting that her ruling will not stick, but will be overturned by the apellate court. It’s already in conflict with the FISA Court of Review: FISA Court of Review, In re: Sealed Case No. 02-001, which upholds the President’s power to order warrantless wiretapping and searching.


    The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

    Some other courts that had made rulings on this issue:

    Katz v. United States, 389 U.S. 347 (1967).
    United States v. United States District Court (Keith) (1972).
    United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970).
    United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
    United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974).
    United States v. Humphrey (1978).
    United States v. Buck, 548 F.2d 871 (9th Cir. 1977).
    United States v. Duggan, 743 F.2d 59 (1984).

    All of these explicitly cite the President’s power to obtain foreign intelligence without the necessity of obtaining a warrant.

    And here’s a good article from the Washington Post:

    Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.

    Judge Taylor’s opinion is certainly long on throat-clearing sound bites. “There are no hereditary Kings in America and no powers not created by the Constitution,” she thunders. She declares that “the public interest is clear, in this matter. It is the upholding of our Constitution.” And she insists that Mr. Bush has “undisputedly” violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

    But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA’s program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don’t have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

    There is no “over-reaching” of power, by President Bush. There is nothing “unprecedented” here, other than stir-crazed Democrats trying to incite people into the the false notion that our civil liberties are being taken away, and the Constitution violated.

    From the LA Times a while back:

    read Geoffrey R. Stone’s 2004 book “Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.” It tells how John Adams jailed a congressman for criticizing his “continual grasp for power.” How Abraham Lincoln suspended habeas corpus and had the army arrest up to 38,000 civilians suspected of undermining the Union cause. How Woodrow Wilson imprisoned Socialist Party leader Eugene Debs for opposing U.S. entry into World War I. And how Franklin D. Roosevelt consigned 120,000 Japanese Americans to detention camps.

    You can also read about how presidents from FDR to Richard Nixon used the FBI to spy on, and occasionally blackmail and harass, their political opponents. The Senate’s Church Committee in 1976 blew the whistle on decades of misconduct, including FBI investigations of such nefarious characters as Eleanor Roosevelt, William O. Douglas, Barry Goldwater and the Rev. Martin Luther King Jr.

    FDR’s domestic surveillance

    Comment by The WordSmith from Nantucket | August 18, 2006

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