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Banned
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powerclown and dc_dux,your exchange inspired me start a <a href="http://www.tfproject.org/tfp/showthread.php?t=120775">thread</a> that uses Meese offered as a journalist as an example of the divide on this forum, and in the country. It gets that issue out of here, and we'll get to see if everyone actually wants to discuss this thread's topic.....or the predictable issues of introducing a supporting author who many others view as the Alberto Gonzales of his era....and more...
Meese's article was written in February, and since this week, the number of federal judges who have ruled that Bush has violated the FISA laws, has doubled:
Quote:
http://www.salon.com/opinion/greenwa...nsa/index.html
Glenn Greenwald's Unclaimed Territory
I was previously a constitutional law and civil rights litigator in New York. I am the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. My second book, <a href="http://www.amazon.com/gp/product/0307354199?ie=UTF8&tag=unclaimedterr-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0307354199">"A Tragic Legacy"</a>, examines the Bush legacy and was released by Random House/Crown on June 26, 2007.
Saturday July 7, 2007 06:30 EST
Yesterday's ruling on NSA warrantless eavesdropping
...While the two judges in the majority did not rule on the legality of the program, the third judge -- Judge Gilman -- agreed with Judge Taylor's finding that the President's program violated FISA. <b>He thus wrote that he "would affirm its judgment</b>," and he rejected the administration's standard two defenses for that behavior (i.e., (1) that AUMF implicitly authorized FISA violations and (2) the President has "inherent authority" under Article II to eavesdrop with no warrants). In fact, just as was true for Judge Taylor, Judge Gilman found that while the "standing" issue was a close one, the actual merits -- i.e., whether the President broke the law -- was not close:
The closest question in this case, in my opinion, is whether the plaintiffs have the standing to sue. Once past that hurdle, however, the rest gets progressively easier . . . . [The administration's] AUMF and inherent-authority arguments are weak in light of existing precedent and statutory construction.
The two judges in the majority did not dispute any of this. Instead, they ruled, roughly speaking, that because the program was conducted in secret, the plaintiffs cannot prove that they were subjected to warrantless eavesdropping and thus lack "standing" to contest the legality of the NSA program.
Several observations about the decision:
(1) Any journalist or Bush follower claiming that this decision constitutes vindication for warrantless eavesdropping -- or that it constitutes a repudiation of Judge Taylor's finding that the President broke the law and violated the Constitution -- is deeply confused and/or engaged in a campaign of deceit. Even worse than that, anyone celebrating this result is essentially celebrating a situation where our government leaders are able to act in secret -- even when the law makes it illegal to do so -- and as a result of this secrecy, block courts from ruling on whether they broke the law.
Why would anyone -- including those who think the NSA program is legal --<b> want to empower our government officials to act free of judicial review of whether they acted illegally? If those who claim to believe that the President acted legally are telling the truth, wouldn't they desire a judicial ruling on these questions?</b>
As noted, the majority opinion here did not make a single comment suggesting they believe Judge Taylor's ruling on the merits was wrong, nor did they suggest that warrantless eavesdropping is legal. To the extent they commented on those issues at all, the majority opinion observed that the appeal "presents a number of serious issues," while the other Judge in the majority (Gibbons) described in the first paragraph of her concurring opinion the "complexity" of the "merits issues." Not a word in either of those two opinions constitutes a repudiation of the finding by Judge Taylor that the President broke the law and violated the Constitution.
(2) Unlike the two judges in the majority, the dissenting judge (Gilman) did issue findings regarding the illegality of the NSA program once he found that the plaintiffs had standing to sue. And he decided conclusively that the NSA program violates FISA and that the administration's two legal excuses are invalid. That means that <h3>the only two federal judges ever to rule on the legality of the NSA warrantless eavesdropping program -- Judge Taylor and now Judge Gilman -- have both decisively concluded that the President's warrantless eavesdropping is illegal.</h3>
Moreover, the rejection by both Judge Taylor and Judge Gilman of the administration's Article II and AUMF "defenses" are completely consistent with the rejection of those same defenses by the Supreme Court in its Hamdan ruling last June, when the Court found illegal the President's Guantanamo military commissions. The two prongs of the Cheney/Addington/Yoo Vision of Presidential Omnipotence used to justify a whole array of presidential lawbreaking -- Article II "inherent authority" and AUMF's "implicit" authorization -- have suffered one legal defeat after the next. If anything, yesterday's decision bolsters that trend, not undermines it.
(3) This is one of those types of legal outcomes which -- understandably so -- can drive laypersons, along with conscientious lawyers, crazy. The result, on its face, is grotesquely unfair, outrageously so.
After all, the whole point of FISA is to make it illegal for the government to spy on us in secret. And yet spying on us in secret is exactly what the Bush administration did; that is the crux of the lawbreaking here. But precisely because it spied on Americans in secret rather than with judicial oversight, nobody knows whose conversations they surveilled and we cannot find out.
It is because of this illegal behavior that the plaintiffs are unable to show that they were subjected to this surveillance. To dismiss the case on the ground that the plaintiffs are unable to make this showing, then, is to reward the Bush administration with the ultimate prize (immunity from judicial review) for having broken the law.
Worse still, it means that if the Government breaks the law in secret, it can be immune from being held accountable in a court because no one individual can ever prove that they were directly and uniquely harmed by the illegal conduct, and thus would lack standing to sue. That result is as destructive as it is Kafka-esque, and it is what happened yesterday.
But the fact that the decision's result is so unfair does not mean, unfortunately, that it was wrongly decided. The role of the judge is to apply the law as it exists, and a judge is not free -- nor should we want them to be free -- to disregard binding legal doctrine whenever the judge decides that doing so is necessary to avoid unfair results....
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powerclown....where do you find these people? We can talk about Andrew C McCarthy over on the other thread, too. He is a member of this crew:
http://www.sourcewatch.org/index.php...dor_Associates
Last edited by host; 07-09-2007 at 01:49 AM..
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