# NSA Eavesdropping Program Ruled Unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [August 17, 2006, 6:44pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120 "2006-08-17T18:44:27Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Age\_Quod\_Agis](https://avatars.discourse-cdn.com/v4/letter/a/d07c76/32.png) [@Age\_Quod\_Agis](https://boards.straightdope.com/u/Age_Quod_Agis)\ **Post date:** [August 17, 2006, 11:20pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/21 "2006-08-17T23:20:11Z")
[QUOTE=rjung] But, gee, **John,** you told me it’d be LONG afterwards before the right-wing smear campaign against Judge Taylor would begin! [/QUOTE] Yeah, and I’m an especially big fan of this “smear”: > [@](#): > > “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.’” Which part of that is insulting? “Liberal”? “Democratic”? Or “Carter”? ---
**Author:** ![Frostillicus](https://avatars.discourse-cdn.com/v4/letter/f/e9bcb4/32.png) [@Frostillicus](https://boards.straightdope.com/u/Frostillicus)\ **Post date:** [August 18, 2006, 1:16am UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/22 "2006-08-18T01:16:51Z")
Attorney General Alberto Gonzales (R - Torture) today lambasted the ruling and claimed (without any evidence) that the supposed London terror plot of last week was disrupted due to NSA wiretaps. As he was speaking on the television screen, I screamed, “WHY DON’T YOU JUST GET A FUCKING WARRANT? THEN IT WILL BE LEGAL!” I don’t think he heard me. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [August 18, 2006, 1:26am UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/23 "2006-08-18T01:26:21Z")
The white house also decided to go with a liquid bomb plot theme: > [@](#): > > Statement on the Terrorist Surveillance Program > > Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people. Today a federal judge in Michigan has ruled that the Terrorist Surveillance Program ordered by the President to detect and prevent terrorist attacks against the American people is unconstitutional and otherwise illegal. We couldn’t disagree more with this ruling, and the Justice Department will seek an immediate stay of the opinion and appeal. Until the Court has the opportunity to rule on a stay of the Court’s ruling in a hearing now set for September 7, 2006, the parties have agreed that enforcement of the ruling will be stayed. > > United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives. The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out. That’s what the American people expect from their government, and it is the President’s most solemn duty to ensure their protection. > > The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties. The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program. [http://www.whitehouse.gov/news/releases/2006/08/20060817-2.html](http://www.whitehouse.gov/news/releases/2006/08/20060817-2.html) ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [August 18, 2006, 1:26am UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/24 "2006-08-18T01:26:46Z")
I’m thinking the reason Shrub & Company are so resistant to the warrant requirement is because they know they can’t meet even the fairly minimal requirements to get a warrant on a large number of the taps. Obtaining a regular warrant in a routine criminal case is not really all that difficult. My understanding is that it is even easier in the FISA Court. But, this administration does not like to lose. In fact, they seem so paranoid about losing that they go to extremes to avoid even having to risk a hearing in Court. Seems to me that if they have that little confidence in the legality of an action, they prolly shouldn’t oughta be doing it in the first place… ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [August 18, 2006, 2:36am UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/25 "2006-08-18T02:36:25Z")
Just read that there was one refusal in the first 7500 requests. It is a rubber stamp. Do wonder how bad that one must have been. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [August 18, 2006, 2:51am UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/26 "2006-08-18T02:51:06Z")
[QUOTE=Age Quod Agis] **Billbo** , neither your quote nor your link state or imply that the ruling would ban the program nationally. [/QUOTE] In this action, the defendants are the NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE; and LIEUTENANT GENERAL KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service. The actual [Injunction (pdf)](http://www.mied.uscourts.gov/eGov/taylorpdf/06-10204Injunction.pdf) issued by the court provides: > [@](#): > > IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter “TSP”) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III; Under the injunction, the NSA and all of its employees are subject to the injunction and are prohibited from operating the TSP, wherever the agence or its employees operate. Because the district court in had jurisdiction over the defendants, it could properly enjoin their actions wherever those actions occur. The Fifth Circuit case you refer to was against a particular institution as defendant, and by its terms only applied to that institution. However Fifth Circuit rulings are also binding precedent over all district courts within the Fifth Circuit, so all institutions in similar circumstances in that circuit would be subject to that binding precedent if they were brought into court. Circuit court rulings are persuasive in other circuits and in district courts outside the issuing circuit, but those courts are free to not to follow them. Jurisdiction can be an exceedingly subtle concept that bedevils first year law students (and often practicing lawyers). However, where a court has personal jurisdiction over a defendant, its ruling can affect all activities of the defendant wherever they are located. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 18, 2006, 3:15am UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/27 "2006-08-18T03:15:42Z")
[QUOTE=Oakminster] 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. [/QUOTE] The thing that is disgusting is that if there really is a problem with the law that jeopardizes national security the administration has had plenty of time to make a showing of that to Congress and get the law changed to remove, or at least alleviate, the threat. This administration, however, seems to be so hung up on supposed executive prerogative as Commander in Chief that they try to bull their way through on everything. The President is commanded by the Constitution (Art. II, Sec. 5) to inform Congress on how things are going and to recommend for consideration “such measures as he shall judge necessary and expedient.” What in hell is so difficult about that? He also is commanded to see that the laws are faithfully executed and takes an oath to “preserve, protect and defend the Constitution …” Thus, within the description of the duties of the President is a clear prescription as to how he should go about getting done the things he thinks should be done. Some will argue that this process takes too long and, of course, that old standby, “things have all changed since 9/11.” Yes the process can take time and there is a possibility that while the President and Congress are trying to work out something that will be effictive and pass Constitutional muster some vital intelligence might be missed. In my view that’s one of the risks that we must take to preserve the important feature of checks and balances. Nobody promised you a rose garden, and as the saying goes, things are tough all over. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [August 18, 2006, 2:37pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/28 "2006-08-18T14:37:01Z")
The Republican National Committee weighs in: [Liberal Judge Backs Dem Agenda To Weaken National Security](http://www.gop.com/News/Read.aspx?ID=6498) [QUOTE] [ul][li]In 1979, Taylor Was Nominated By President Jimmy Carter. “Nominated by Jimmy Carter on May 17, 1979, to a new seat created by 92 Stat. 1629; Confirmed by the Senate on October 31, 1979, and received commission on November 2, 1979. Served as chief judge, 1996-1998. Assumed senior status on December 31, 1998.” (Federal Judicial Center Website, [www.fjc.gov](http://www.fjc.gov), Accessed 8/17/06)[/li] [li]During 1976 Presidential Campaign, Taylor Campaigned For Jimmy Carter. “In 1979, three years after she campaigned for Jimmy Carter’s presidential bid, Carter rewarded Taylor with a lifetime appointment to U.S. District Court in Detroit.” (David Ashenfelter, “Judge Could Alter War On Terror,” Detroit Free Press, 8/7/06)[/ul][/li][/QUOTE] ---
**Author:** ![chad\_1](https://avatars.discourse-cdn.com/v4/letter/c/f9ae1b/32.png) [@chad\_1](https://boards.straightdope.com/u/chad_1)\ **Post date:** [August 18, 2006, 2:42pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/29 "2006-08-18T14:42:07Z")
[KURU Lounge: “'It is just irritating that a Judge is such a f\*\*\*ing moron.” I get about zero visitors a day so you really had to dig for that quote. Plus I don’t really consider it a smear as I also refer to people I like (including my mother) as irritating F\*\*\*ing morons. ---
**Author:** ![Gangster\_Octopus](https://avatars.discourse-cdn.com/v4/letter/g/a8b319/32.png) [@Gangster\_Octopus](https://boards.straightdope.com/u/Gangster_Octopus)\ **Post date:** [August 18, 2006, 3:18pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/30 "2006-08-18T15:18:38Z")
[QUOTE=Squink] The Republican National Committee weighs in: [Liberal Judge Backs Dem Agenda To Weaken National Security](http://www.gop.com/News/Read.aspx?ID=6498) [/QUOTE] All of which means diddly with respect to he correctness of the decision. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [August 18, 2006, 3:40pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/31 "2006-08-18T15:40:46Z")
[QUOTE=Gangster Octopus] All of which means diddly with respect to he correctness of the decision. [/QUOTE] Well yeah, I just wanted to put in a marker as to where the RNC is pushing public debate. It might be useful six months down the line. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 18, 2006, 5:01pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/32 "2006-08-18T17:01:33Z")
What the program’s defenders are arguing is that the President has the authority to ignore the law and the constitution if in his sole opinion that justified. It would appear that they base this on the powers of the Commander in Chief, claiming that those powers trump all others in time of war. And, of course the Iraq war was authorized by Congress. I’ll bet very few members of Congress thought they were authorizing any such thing when they voted for that Iraq resolution. I’ll again say that if FISA’s application actually hinders the gathering of intelligence because of some hitch in obtaining a warrant for a wiretap then the proper course is to go to Congress and tell them about it. And there was, and continues to be, opportunity for the President to do that. I don’t believe it is necessary to break the law and trample the constitution in order to organize and maintain a proper national defence. If such extraordinary measures are necessary then our system contains a fatal flaw and can’t be maintained in any case. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 18, 2006, 5:19pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/33 "2006-08-18T17:19:46Z")
[QUOTE=David Simmons] It would appear that they base this on the powers of the Commander in Chief, claiming that those powers trump all others in time of war. And, of course the Iraq war was authorized by Congress. I’ll bet very few members of Congress thought they were authorizing any such thing when they voted for that Iraq resolution. [/QUOTE] I think the administration is referring to the AUMF right after 9/11/01, not the Iraq war AUMF. I still don’t buy that, but just a note of correction. Even the Democrats in Congress have said: Tell us how you need the law changed, and we’ll change it. Somehow that’s not good enough for Bush-- he seems to think that any law will tie his hands in some way or another. Interestingly, though, the article about this in my paper today (San Jose Merc) indicated that there was good chance the 6th Circuit Appeals Court would overturn this ruling. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [August 18, 2006, 5:58pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/34 "2006-08-18T17:58:41Z")
[QUOTE=John Mace] Interestingly, though, the article about this in my paper today (San Jose Merc) indicated that there was good chance the 6th Circuit Appeals Court would overturn this ruling. [/QUOTE] Yet another example of that damned liberal media. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 18, 2006, 6:17pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/35 "2006-08-18T18:17:44Z")
[QUOTE=Hamlet] Yet another example of that damned liberal media. [/QUOTE] Well, the Merc is pretty liberal on its editorial pages (as are most big city newspapers), but many of its new articles are sourced from AP or the NYT or somewhere else (this particular article looks like it was original to the Merc). I know you’re just kidding, but I certainly wasn’t meaning to imply either liberal or conservative bias-- I think most major newspapers do a pretty good job of maintaining their objectivity. Here’s the exact quote, btw: > [@](#): > > [Wiretap program is ruled illegal](http://www.mercurynews.com/mld/mercurynews/news/15303535.htm) > > The Justice Department immediately appealed the ruling, and legal scholars said the administration has a good chance of winning before the 6th U.S. Circuit Court of Appeals in Cincinnati, which handles cases from Michigan, Kentucky, Ohio and Tennessee. > > `There are more judges on that court who come down on the national security end of the spectrum than the civil liberties end,'' said Carl Tobias, a constitutional scholar at the University of Richmond's law school. `The majority probably would reverse this decision.‘’ I have no idea how many “legal scholars” the reproters interviewed other than Tobias. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 18, 2006, 6:37pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/36 "2006-08-18T18:37:59Z")
[QUOTE=Oakminster] Having read the opinion, I’m thinking Judge Taylor has a pretty good chance of being affirmed on appeal. [/quote] [QUOTE=Billdo] I have read the [ppinion(pdf)](http://i.a.cnn.net/cnn/2006/images/08/17/nsa.lawsuit.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. [/quote] Either of you want to make it interesting? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [August 18, 2006, 6:41pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/37 "2006-08-18T18:41:44Z")
Eh. I wouldn’t get too worked up about that article. It’s drawing a conclusion based on what some sampling of “legal scholars” think about the trends of some Judges on the 6th Circuit. Each case is different, and the issues here are framed in such a way that even hardcore conservatives–at least as I understand the term–are going to have a hard time finding a way to toe the GoP party line without just abandoning major portions of the Bill of Rights. Really, I see two avenues of attack here…either State Secrets or Standing. The Supremes have already indicated that Shrub does not have a “blank check” to do whatever he wants. Judge Taylor ruled on the basis of public statements the government has made concerning the TSP–not sure how you pull a public statement under the blanket of State Secrets. Standing–especially with issues of Attorney-client confidentiallity at stake–I think a Court is going to find it difficult to deny standing. As a disclaimer, I have been loudly complaining about the TSP and other erosions of civil liberties under the current administration for years now. It is likely that bias is reflected in how I view the issues here. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [August 18, 2006, 6:49pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/38 "2006-08-18T18:49:15Z")
[QUOTE=Bricker] Either of you want to make it interesting? [/QUOTE] Hmmm…a wager? We talking about what happens at the 6th Circuit, or the ultimate outcome, since we both know this one will be appealed to the Supremes regardless? I kinda doubt the Supremes would deny cert on this, regardless of what the 6th does. Yeah, I’d be interested in a modest bet, taking the position that Judge Taylor will be affirmed on the pro-plaintiff portion of her ruling at even money. Might consider another on the Data Mining issue decided in favor of the government, but I’d want long odds… ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [August 18, 2006, 6:51pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/39 "2006-08-18T18:51:36Z")
Phrased that poorly…I’d want long odds to bet on a reversal of her ruling on the Data mining issue, and I’m not sure that will even be pursued on appeal. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [August 18, 2006, 6:58pm UTC](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120/40 "2006-08-18T18:58:03Z")
Please help me, because I’m feeling a bit dense today (or more than usual, anyway). What has “the national security end of the spectrum” vs. “the civil liberties end” got to do with, you know, _the Law_ exactly? I recognize the need for interpretation and extrapolation where the law is silent, on occasion, but this analysis seems to be a rather bald assertion that ideology is the deciding factor, here, and perhaps that alone. Is it really arguable either way, and all that decides, really, is whether or not the judge is a “liberal” or “conservative”? I’ve suspected for a long time that’s pretty much the case in some circumstances, but is that really what we’re arguing in this one? [Previous page](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120.md?page=1) [Next page](https://boards.straightdope.com/t/nsa-eavesdropping-program-ruled-unconstitutional/369120.md?page=3)