The National Security Agency (NSA) logo is shown on a computer screen inside the Threat Operations Center at the NSA in Fort Meade, Maryland, January 25, 2006.

US appeals court throws out ruling against eavesdropping

A US federal appeals court on Friday rejected a legal challenge to the US government’s domestic eavesdropping program, launched in the wake of the September 11, 2001 attacks.The ruling allowed President George W. Bush’s administration to continue its controversial program of wartime spying on communications between US and foreign locations in suspected terror cases without first seeking a warrant.

Striking down a lower court’s order, the appeals court, in a 2-1 decision, said the plaintiffs should not have won an injunction against the National Security Agency’s surveillance program because they failed to show that they were personally affected by it.

The two judges deciding against the plaintiffs did not rule, however, on the legality of the controversial program, known as the Terrorist Surveillance Program, or TSP.

“Because we cannot find that any of the plaintiffs have standing for any of their claims, we must vacate the district court’s order and remand for dismissal of the entire action,” wrote Judge Alice Batchelder.

Ann Beeson, the American Civil Liberties Union’s associate legal director and the lead attorney for the plaintiffs challenging the government’s wiretapping policy, addresses the media in Detroit, in this June 12, 2006, file photo. A federal judge ruled Thursday, Aug. 17, 2006 that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it. U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy.

Remember the story

Everyone agreed the plaintiffs had no standing and could not proceed with this injunction. But this did not deter the left wing judge, Anna Diggs Taylor from Detroit from making an absurd ruling.

But, then again, we knew the US Court of Appeals would reverse her.

Federal Judge Anna Diggs Taylor

The surveillance program permitted the security agency to intercept e-mails and telephone conversations between the United States and terror suspects abroad.

“We have to have a reasonable basis to conclude that one party to the communication is a member of Al-Qaeda, affiliated with Al-Qaeda, or a member of an organization affiliated with Al-Qaeda, or working in support of Al-Qaeda,” Attorney General Alberto Gonzalez said of the program in 2005.

But in August 2006, a district court judge in Detroit, Michigan imposed an injunction against the program, arguing that Bush had overstepped his authority. Her ruling was suspended while it was under appeal.

The US Department of Justice welcomed the ruling, saying it protected “a vital intelligence program that helped detect and prevent terrorist attacks,” according to spokesman Brian Roehrkasse.

Lawyers, journalists and professors represented by the American Civil Liberties Union (ACLU) had argued that their communications risked being eavesdropped on because they were in frequent contact with people in the Middle East.
However, Friday’s ruling noted that “the plaintiffs do not allege as injury that they … anticipate or fear any form of direct reprisal by the government, such as criminal prosecution, deportation, administrative inquiry, civil litigation, or even public exposure.”

In addition, the plaintiffs were unable to prove that any of them had “actually been wiretapped,” and any declaration of injury was therefore “too speculative,” the ruling said.

The plaintiffs “allege only a subjective apprehension and a personal (self-imposed) unwillingness to communicate.”

The ACLU said they were disappointed.

But, this court ruling puts a damper on those subpoenas issued by the Democrat Congress to Vice President Dick Cheney over this very program.

Stay tuned…..

Others Blogging:

Stop The ACLU

SCOTUSBlog: Circuit Court bars challenge to NSA spying

Volokh: Plaintiffs Lack Standing to Challenge NSA Surveillance

Captain’s Quarters: Court Reverses Anna Diggs Taylor

Bashman

Powerline: Reversal in the NSA surveillance case

Flopping Aces

The American Mind

Sister Toldjah

Macsmind
Previous:

NSA Surveillance Watch: Judge Orders Halt to NSA Surveillance Program

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NSA Surveillance Watch: Mark Steyn – “To Connect the Dots, You Have to See the Dots”

NSA Surveillance Watch: President Bush Defends Scope of NSA Surveillance

NSA Surveillance Watch: NSA’s Telephone Data Collection and Analysis Program – Is It LEGAL?

NSA Surveillance Watch: NSA Has Massive Database of Americans’ Phone Calls

NSA Surveillance Watch: Senate Intelligence Committee Decides NOT to Pursue Investigation

NSA Surveillance Watch: Congressional Probe of NSA Surveilance Is in Doubt

NSA Surveillance Watch: Two Lawsuits Filed Today to Seek End of President Bush’s NSA Electronic Surveillance Program

NSA Surveillance Watch: Specter Skeptical of Domestic Spy Program

NSA Surveillance Leak Case Watch: Attorney General Alberto Gonzales to Testify

NSA Surveillance Watch: AP Poll- Most Say U.S. Needs Warrant to Snoop? – RECYCLED

NSA Surveillance Leak Case Watch: Vice President Cheney Strongly Defends Eavesdropping Operation

Cox & Forkum: One Man’s Whistleblower

Global War on Terror Watch: Why the NSA Monitors Communications of Al-Qaida

NSA Surveillance Leak Case Watch: President Bush Defends NSA Surveillance

NSA Leak Case Watch: New York Times’ Reporter James Risen

NSA Leak Case Watch: Justice Deptartment Probing Domestic Spying Leak

NSA Surveillance Watch: President Had Legal Authority to OK Taps

NSA Surveillance Watch: Carter and Clinton Executive Orders Authorizing Secret Searches Without a Warrant

NSA Surveillance Watch: Calls for Congressional Hearings

NSA Surveillance Watch: President Bush defends Spying as “A Necessary Part of My Job to Protect” Americans from Attack

Technorati Tags: National Security Agency, NSA, Anna Diggs Taylor, Warrantless Surveillance

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Ann Beeson, the American Civil Liberties Union’s associate legal director and the lead attorney for the plaintiffs challenging the government’s wiretapping policy, addresses the media in Detroit, in this June 12, 2006, file photo. A federal judge ruled Thursday, Aug. 17, 2006 that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it. U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy.

AP: Judge finds NSA program unconstitutional

A federal judge on Thursday struck down President Bush’s warrantless surveillance program, saying it violated the rights to free speech and privacy, as well as the separation of powers enshrined in the Constitution.

U.S. District Judge Anna Diggs Taylor in Detroit is the first judge to rule on the legality of the National Security Agency’s program, which the White House says is a key tool for fighting terrorism that has already stopped attacks.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.

The administration said it would appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati.

“We’re going to do everything we can do in the courts to allow this program to continue,” Attorney General Alberto Gonzales said at a news conference in Washington.

Flap covered the suit when it was first filed here.

Lawsuit #2

The Detroit lawsuit, which names the National Security Agency and its director, said the program has impaired plaintiffs’ ability to gather information from sources abroad as they try to locate witnesses, represent clients, do research or engage in advocacy.

It was filed by the ACLU, the Council on American-Islamic Relations, Greenpeace and individuals on behalf of journalists, scholars, attorneys and national nonprofit organizations that communicate with people in the Middle East, Asia and elsewhere.

The ACLU Lawsuit is here.

A List of the plaintiffs with links is:

American Civil Liberties Union

American Civil Liberties Union of Michigan

Council on American-Islamic Relations
Rabiah Ahmed
Arsalan T. Iftikhar

National Association of Criminal Defense Lawyers
Joshua Dratel (Statement)
Nancy Hollander (Statement)

Greenpeace (Statement)

James Bamford, journalist/author (Statement)

Larry Diamond, Hoover Institution, Stanford University (Statement)

Christopher Hitchens, journalist/author (Statement)

Tara McKelvey, journalist/author

Barnett Rubin, New York University Center on International Cooperation

Background of Organizations and People Involved in the Lawsuit >>

The ACLU’s Press release is here: ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law.

Federal Judge Anna Diggs Taylor

NOPE

But, her decision/order does highlight why elections are important as they decide who is appointed to the bench and issues ridiculous orders.
Flap reported on the legal precedent for the NSA Surveillance Porgram here.

John Schmidt who served under President Clinton from 1994 to 1997 as the Associate Attorney General of the United States writes President had legal authority to OK taps.

John Hinderaker over at Powerline Blog has It’s Legal

Powerline today has Judge Ignores Precedent, Holds NSA Program “Unconstitutional”

The Second, Third, Fourth, Fifth and Ninth Circuits have so held, as has the special FISA Court of Review. And those cases dealt with domestic warrantless intercepts, as opposed to the international communications that fall within the NSA program.

One of the serious weaknesses of our federal judicial system is that in many cases, plaintiffs can forum-shop for a favorable district or judge. Here, the ACLU, the plaintiff in the case, could have brought the case anywhere in the United States. The ACLU naturally avoided the circuits that had already upheld warrantless surveillance as an executive power; the Sixth Circuit, which encompasses Michigan, has not ruled on the issue, to my knowledge. The ACLU was able to get its case before Judge Taylor, a 1979 Jimmy Carter appointee who was described by the Detroit Free Press as “a liberal with Democratic roots.”

Hugh Hewitt has Jimmy Carter and Ned Lamont Judges

Judge Taylor glancingly deals with SCOTUS’ Keith decision but doesn’t even bother to assess the FISA Appeals Court opinion in In Re Sealed Case, 2002 in which that panel of three federal judges skilled in this area of the law noted:

It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: “We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” 407 U.S. at 321- 22.³⁰ But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and “ordinary crime.” Id. at 322. It pointed out that “the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes.” Id.

The main purpose of ordinary criminal law is twofold: to punish the wrongdoer and to deter other persons in society from embarking on the same course. The government’s concern with respect to foreign intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity. As we discussed in the first section of this opinion, the criminal process is often used as part of an integrated effort to counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a secondary objective;³¹ indeed, punishment of a terrorist is often a moot point.

The judge doesn’t deal with this passage or other relevant passages not because they are dicta –they are– but because there is no answer to the logic and the obvious conclusion that the NSA program –wartime surveillance aimed not at prosecuiting law breakers but stopping terrorist attacks– is indeed not governed by the Fourth Amendment’s prohibitions.

No doubt the judge ruled as she understood the Constitution, but she doesn’t understand the Constitution or the war, and her refusal to deal with a higher court’s on-point discussion telegraphs her intellectual insecurity about her “reasoning.” She will be reversed, most likely following a lengthy stay of her order. Implementation of the order would certainly disrupt ongoing surveillance of terrorists and thus endanger innocent lives, and the possibility of that harm should be sufficient to maintain the stay until higher courts intervene to reverse this absurd decision..

Judge Taylor’s opinion is here.

So, is Flap worried about the survival of this necessary program?

NO

The Sixth Circuit will issue a pending an appeal stay (if it already hasn’t) within days (Flap believes an appeal motion has already been filed) and eventually in a year or longer the court will decide in favor of the Department of Justice and the Bush Administration. However, ultimately, the United States Supreme Court will decide the matter.

Stay tuned…….

Update #1

The Washington Post has A Judicial Misfire

THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency’s program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

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.

In other words, Judge Taylor’s opinion is a contrived piece of CRAP – which it is. Flap is not an attorney but the legal arguments he has read supports this opinion.

Update # 2

Captain Ed over at Captain’s Quarters has NSA Decision: Lots Of Emotion, Little Reasoning

The Sixth District Appellate Court slapped a stay on this decision almost immediately, and one suspects that the justices will take a long and skeptical look at Taylor’s scattershot opinion. Whether or not one agrees with the end result, the decision itself is insupportable because Taylor never bothered to provide the support necessary.

How does this play out politically? Had it happened before the plot uncovered by the British last week, I would think it would have damaged the Bush administration. It still might, in the short term. It’s likely to sway moderates to the thought that the program did violate the law, while it’s unlikely to convince die-hards of anything but what they already believed. The exposure of another international and complex plot against airlines might mitigate that and remind moderates and undecideds that we still face an enemy determined to kill as many of us as possible. And if Taylor gets overturned by the 6th, that will only underscore the validity of the program.

I think one can make compelling arguments against the NSA warrantless surveillance program. However, I believe that surveilling enemy communications falls within the executive powers during wartime and does not require FISA approval, a construct that (I believe) violated Article II from its inception. Taylor’s opinion is only the first round anyway; this will go to the Supreme Court before it gets settled for good, and that will likely take place after the present administration leaves office.

Captain Ed agrees with Flap that ultimately this decision rests with SCOTUS. And, it may even be an issue if another vacancy occurs on the high court prior to President Bush leaving office. For now Judge Taylor’s order has been stayed and the NSA program continues.

Related:

Volokh Conspiracy

Patterico

From the Left:

Glenn Greenwald
Update #3

The Wall Street Journal has President Taylor

Before yesterday, no American court had ever ruled that the President lacked the Constitutional right to conduct such wiretaps. President Carter signed the 1978 FISA statute that established the special court to approve domestic wiretaps even as his Administration declared it was not ceding any Constitutional power. And in the 2002 decision In Re: Sealed Case, the very panel of appellate judges that hears FISA appeals noted that in a previous FISA case (U.S. v. Truong), a federal “court, 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 couldn’t find Judge Taylor’s attempt to grapple with those precedents, perhaps because they’d have interfered with the lilt of her purple prose.

Unlike Judge Taylor, Presidents are accountable to the voters for their war-making decisions, as the current White House occupant has discovered. Judge Taylor can write her opinion and pose for the cameras–and no one can hold her accountable for any Americans who might die as a result.

And why the issue of judicial appointments will again be an issue in the 2008 presidential elections.
Update #4

Hugh Hewitt has “Off hand, I cannot recall reading an opinion as conclusory and content free as the key portions of this opinion.” 

If you are amazed by this decision, visit the Senate campaign websites of Tom Kean in New Jersey,  Mark Kennedy in Minnesota, Michael Steele in Maryland and Mike McGavick in Washington State and contribute to their victories.  These four challengeres are all making excellent runs at Democratic seats, and the best defense in November against more absurd opinions doing more damage to the national security is keeping the Senate Judiciary Committee in control of the GOP.

Indeed…..

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