Score One for the Constitution
A brief excerpt from Judge Taylor's decision today:
The President of the United States, a creature of the same Constitution which gave us these ammendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Ammendment Rights of these Plantiffs as well
Obviously, this case is likely to head to the United States Supreme Court, but the ruling is nonetheless encouraging.
The President of the United States, a creature of the same Constitution which gave us these ammendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Ammendment Rights of these Plantiffs as well
Obviously, this case is likely to head to the United States Supreme Court, but the ruling is nonetheless encouraging.
posted by David at 8/17/2006 09:11:00 PM
2 Comments:
I found the ruling to be quite poor.
She stated 4 primary grounds:
* freedom of speech
* freedom of association
* privacy
* separation of powers
The freedom of speech argument is absurd on its face. The suit claimed that the ongoing program acted to "chill" their communications with Al Qaeda operatives and sources -- implicitly assuming they have a right to do so. (pp 19 - 20 in the decision). That the judge agreed that US residents, in time of war, have the inalienable right to freely communicate with the enemy without fear of interception is nonsense. Under this interpretation, all intelligence of espionage would be protected speech!
The privacy aspect will probably fall at the Supreme Court appeal. At it's heart is the question -- when one makes an international call, is there a reasonable expectation your call will not be intercepted? Since you have NO rights to privacy from the other nation involved, that would be 'no'. Since you have no US protections on signals once they leave the US, the answer would have to be 'no'. Indeed, it is wholly unreasonable to assume that your signal will not be intercepted by persons or governments once that signal leaves the protection of US territories. Therefore, there is no reasonable expectaton of privacy in such cases.
Indeed, in WW2 *all* international mail was opened and inspected.
The freedom of association was not impinged, since I think one can argue that one does not have a legal right to freely associate with the enemy in time of war. This particular loon of a judge, however, disagreed. She ruled that there was "substantial injury" caused by an action that might restrict the association of Americans with those we are trying to stop. She argued (via citation) that anything which might discourage membership or affiliation is unconstitutional. Again -- this interpretation would make legal intelligence espionage.
I laughed out loud when I heard that one of the arguments was Separation of Powers. The judicial branch is excluded from all mention in the articles covering the conduct of war -- yet this ruling is a judge ordering the head of another branch of government in the conduct of war. This ruling is likely to be cited as a violation of the Separation of Powers.
One might dislike the alleged TSP, but this ruling was badly made. Most of it will probably be struck down on basis of law.
The First Ammendment issues of Judge Taylor's decision are likely to be tossed out. In fact, it is likely that most of her decision will be tossed out, but the ruling upheld based on different grounds.
The key question is whether the President must follow the law. The FISA statute is pretty clear, but the President has indicated that he is not subject to FISA because of his inherent Constitutional Authority as Commander-in-Chief. If the President is correct, then there are no limits at all on Presidential authority, as he could justify breaking any law on the grounds of being "Commander-in-Chief". We are then left with a monarchy.
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