http://www.cnn.com/2006/POLITICS/08/17/domesticspying.lawsuit.ap/index.html
Now what’re the chances this will stick?
Why do you think so much attention was paid to the Supreme Courters ?. They anticipated this and expect to win. But, the judges sometimes have not behaved so predictably.
Here’s the direct link to the opinion (PDF file)
I’ll be back for sommentary after I’ve read it.
Er, commentary.
How long until the smearing of Judge Anna Taylor begins?
Having read the opinion, I’m thinking Judge Taylor has a pretty good chance of being affirmed on appeal. Her opinion is well written, analyzes the law very carefully, and reaches a solid conclusion. It’s also a fairly stinging rebuke of the current administration’s broad expansion of executive power. Unless there is relevant case law out there that she did not mention, it’s going to be hard to find a legal basis to overturn this ruling. Granted, the Supremes can do pretty much whatever they want–but they’d have to jump through some hoops to reverse Judge Taylor here.
Karana smiles upon wise Judge Taylor. Oakie smiles when Karana smiles.
Long after you make at least 20 more contentless, one-line drive-by posts in GD. Long afterwards.
I have read the ppinion(pdf). I think that it is highly likely that the decision will stick at the Court of Appeals level and, if it goes that far, at the Supreme Court.
The opinion first addressed the State Secrets Privilige, and rejected its application to the Telephone Survailance Program (TSP) because the court based its opinion almost entirely on the public statements of the President and governent officials on the matter. It applied the State Secrets Privilege to the data mining program and found that program to be covered by the privilige because of, among other things, the adminstration’s public silence on that program. (I think that there will eventually a Supreme Court modification of the State Secrets Privilige to permit some inquiry into illegal but secret programs and this case might be a good case for the issue to be carried up). The court also found the Plaintiffs had standing because they had ongoing communications with foreigners (including as legal counsel) which had been interfered with when the foreigners refused to communicate electronically because of the TSP.
The heart of the ruling, however, was that the program violated the Fourth Amendment, the First Amendment and the express Congressional mandate of the Foreign Intelligence Survelance Act (FISA). It is pretty clear that the warrantless eavesdropping violates the FSIA, at the very least. The court rejected that the adminstration had the power to undertake the TSP under the Authorization for the Use of Military Force(AUMF), because the general AUMF does not overrule the more specific statutory directives of FISA.
The most surprising thing about this opinion that I found was that it did not cite the Supreme Court’s recent Hamdan decision, which rejected the administration’s military tribunal program as being inconsistent with the Congressional rules on tribunals in the Uniform Code of Military Justice. Although Hamdan was a split opinion, it seems highly relevant to this ruling, particularly in its rejection of the AUMF as an authority to go against a specific statute.
Considering that the Supreme Court just issued Hamdan which similarly rejected the adminstration’s broad view of its authority under the AUMF, I cannot see how the Circut or Supreme Courts could reject the central point of this court’s opinion. The only way I can see it realistically being reversed is on the procedural points of the State Secrets Privilege or standing.
How many appeals will it take to get this to the SCOTUS, and how long do you think that will take?
And that’s going to be a tough row to hoe. Judge Taylor was quite specific in basing her ruling on what the Government has admitted in public statements. There may be some wiggle room in the notion that they could not defend without disclosing state secrets, but I tend to doubt it. Standing was a major issue of discussion, and She was careful to lay a strong foundation for her finding that Plaintiffs have standing. The plaintiffs alleged, and proved to the Court’s satisfaction, that the TSP has gone beyond a mere chilling effect, making plaintiffs fearful that people may refuse to talk to them–here, clients have actually refused to communicate via telephone or internet, as a direct result of the TSP, and the plaintiffs have incurred actual travel expenses for in person meetings. The other professionals mentioned have valid concerns, but the fact that some plaintiffs are lawyers, with ethical obligations to actual clients, seems to me to be a rock solid and bullet proof reason to find that Standing exists.
Kinda depends on how the litigants decide to procede. The first step would be an appeal to the 6th Circuit (think Michigan is in the 6th). Routine appeals there would be decided by a three judge panel, but the losing party has the right to request a rehearing by the full Court–so that would be at least two “appeals” in a way, even though it’s at the same level of the system. After the 6th Circuit, the next step would be to file at the Supremes–who may or may not accept the case.
Here, it might be possible to expedite the appeals process, which I would expect the Government to do unless Judge Taylor grants a stay of the injunction pending appeal. Not sure if they could skip the 6th Circuit all together–but someone with more experience with the Federal appeals process will likely be along soon to give a better answer…
Thanks. And does this only invalidate the use of these wiretaps in her jurisdiction (assuming she doesn’t stay the decision until appeal)? I wonder how that would work…
Oakminster, Supreme Court Rule 11 permits “Certiorari to a United States Court of Appeals Before Judgment,” but “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immedaite determination in this Court.”
On the possibility of reversal, I agree that the judge made her opinion as bulletproof as possible, but the State Secrets Privilige is a little-developed principle and I could see some appellate judges accepting administration arguments for its application here, despite the administration’s having blabbed about the program. And standing can always be weird in public injury types of cases. I can see the administration making a joint argument like “the plainitffs can’t prove that they were surveiled and to tell them would expose a state secret, which we can’t do.” I don’t think it will go anywhere, but there’s always the possibility that some judges could buy it.
The decision and order enjoin the program nationally. According to the latest AP feed on Yahoo News:
If she doesn’t grant a stay, or the Court of Appeals or Supreme Court don’t grant stays, it will take effect nationally.
Don’t you ever get tired of being wrong?
That’s a direct reference to the ruling, not to her. Did it say terrorist-friendly judge? No.
Oh, and rjung plese don’t waste your time fishing thru blogs to find people dis-ing this judge. I’m sure you’ll find some. Just like you are wont to dis SCOTUS justices (not just their rulings) when you disagree with their decisions. Let’s not hijack this thread so that you can demostrate that such wingnuts exist. We all know they do.
Oh, yes, how could anyone possibly misinterpret a “terrorist-friendly ruling” as being any sort of reflection on the person rendering the ruling? :rolleyes:
But since you’re obviously in a nitpicky mood, here are a few more buckets of slime from the conservative peanut gallery:
I have low expectations for conservatives, and yet I remain agog when they eagerly sink to meet them.
But, gee, John, you told me it’d be LONG afterwards before the right-wing smear campaign against Judge Taylor would begin!
Billbo, neither your quote nor your link state or imply that the ruling would ban the program nationally.
I see no reason to believe that this decision would apply nationally. I suspect that this decision does not apply outside of this judge’s jurisdiction (at least until it’s appealed). In Hopwood v. Texas, the 5th Circuit Court of Appeals ruled that the use of racial preferences in law school admissions was unconstitutional, and that decision did not apply outside the 5th Circuit. I assure you that one district court in Michigan does not have greater jurisdiction than the 5th Circuit Court of Appeals.
As for the opinion itself, my immediate reaction is that it’s probably the right decision in light of Hamdi (which I maintain was wrongly decided). I doubt it will be overturned on appeal.