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NSA Spy Judge Defends the Law, Congress to Strip His Power

blog.wired.com — Just days before the Senate will convene to give a final blessing to President Bush's secret, warrantless wiretapping program, a federal court judge ruled that his legal justification for the surveillance has no legal merit. He's the same judge Congress is trying to save the nation's telecoms, such as AT&T and Sprint, from having to face in court.

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  • ImperialRome, on 07/03/2008, -22/+3Wrong.
    I predict his ruling will be reversed at the appeals level, because the legal precedents are already established in 2nd Circuit, 4th Circuit, and DC Circuit, which all ruled differently. Prepare to be smacked down.
    US v Troung, US v Duggan, and US v Butenko all agree that there is a Executive exemption from Fourth Amendment requirements for warrants to conduct wiretaps. Sealed case 02-001 decided in 2002 that FISA doesn't apply when those under surveillance are agents of a foreign power.
    • InetRoadkill, on 07/04/2008, -0/+19I doubt those cases legalized wholesale *domestic* fishing expeditions against US citizens.
      • ImperialRome, on 07/05/2008, -2/+1True, those cases didnt legalize wholesale fishing expeditions. They did uphold the foreign intelligence exception to the Fourth amendments requirements for warrants in the case of wiretapping.
        US v Troung: 1980 The defendants asserted that the warrantless wiretap of his phone and the bugging of his apartment violated the fourth amendment. However, the court ruled that that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.
    • Trammel, on 07/04/2008, -0/+15These precedents may be valid, but the President simply uses the Patriot Act to label certain groups or individuals as "enemy combatants" or "agents of a foreign power" to detain them indefinitely (e.g. Guantanamo Bay) or to spy on them illegally (i.e. wiretapping).

      This is just another example of people stupidly giving up FREEDOM for (promised) protection.

      Government: Hey, give us the power to jail terrorists without a trial, forever.
      People: But what if you call people terrorists who aren't terrorists?
      Government: We won't, we promise.
      People: But how will you know if they are terrorists?
      Government: That's easy, surveillance via wiretapping on groups we label as terrorists will help us make sure.
      People: Oh ok, that sounds great, just don't spy on us ok?
      Government: We never break promises, we won't. Just think of Ruby Ridge and Waco, we're good.
      • PeppermintPig, on 07/04/2008, -0/+8There's plenty of constitutional precedent that says this is wrong, but dealing with the situation would mean removing every elected official in government who has supported these illegal activities.

        You can't depend on the judicial branch either. Most of those justices don't even appreciate the rights that authorize their positions or the people who armed themselves and risked death to establish this nation.
    • IAmCuteKitty, on 07/04/2008, -0/+5fail
    • locojones, on 07/05/2008, -0/+3ImperialRome might want to brush up on his "understanding" of the nature of the appellate jurisdiction in the United States. Decisions from the 2nd, 4th, and DC circuits are not binding on the 9th Circuit Court of Appeals, in which this case will be appealed if it ever is.
      • ImperialRome, on 07/05/2008, -1/+1Since the 2nd and 4th circuits have already ruled, and the defendants were denied certiorari, the rulings stand as accepted law by the Supreme Court. And I would hardly cite the 9th circuit court as authoritative, since they are the most overruled court of appeals, being regularly smacked down for egregious misinterpretation by the Supreme Court.
        So, since this decision was already "remanded" from the 9th circuit, who (if you read the decision) declined to rule on the issue that Judge Walker ruled on, expect to see this ruling overturned by the Ninth en banc, or failing that, by the Supremes next year.
        Don't say I didn't tell ya so.
      • locojones, on 07/05/2008, -0/+1Again, you mischaracterize the role of the Supreme Court in this matter. A denial or a petition for certiorari "imports no expression of opinion upon the merits of the case, as the bar has been told many times." Missouri v. Jenkins, 515 U.S. 70 (1995). Many cases rise to the Supreme Court through petitions for cert that are ultimately denied (regardless of whether the Court finds something wrong in the lower court decisions) because it has to take jurisdiction over a very limited number of issues. In fact, denial means that no binding precedent is created, and that the lower court decision is authoritative only within its area of jurisdiction. Therefore, the rulings are not accepted as law by the Supreme Court, but rather simply remain the binding precident in their own Circuit. Again, none of those decisions will be binding on the 9th Circuit where this case is occuring.

        Neither is it important how many times a 9th Circuit decision is overruled. 9th Circuit law is the law that binds the states within the court's jurisdiction.

        And if you read the decision, you'd realize that the 9th Circuit did not rule on the issue ruled on by Judge Walker. In fact, the Circuit Court only remanded the decision for the answering of one issue that the Oregon district court failed to address in its ruling. That issue is the subject of the opinion you skimmed.
  • citizenfury, on 07/04/2008, -0/+38Yes but the issue here is massive domestic surveillance, not simply surveillance of agents of foreign powers. Google "Mark Klein" for more info.
    • SIRBERUS, on 07/05/2008, -0/+3"Mark Klein is a former AT&T technician who leaked knowledge of his company's alleged cooperation with the United States National Security Agency in installing network monitoring hardware to spy on American citizens. The subsequent media coverage became a major story in May 2006.

      In recognition of his actions, the Electronic Frontier Foundation picked Klein as one of the winners of its 2008 Pioneer Awards.[1]

      Klein worked for AT&T as a technician for over 22 years, first in New York and then in California, before retiring in 2004.[2]"

      via wikipedia.
  • dignme, on 07/04/2008, -0/+9Good article. At minimum someone is looking at this stuf and speaking up.
  • DoctuhJason, on 07/04/2008, -0/+12Good to know that some politicians are actually trying to protect the people under the law.
    • kaelyiesta, on 07/07/2008, -0/+1The rule of law has become a pretense. Our government no longer upholds what they don't like. Be it by ignoring the law all together(as congress has in this article), or by retroactively rewriting the laws(as bush has), our government is no longer bound by anything but its fear of we the peoples retaliation, which is rapidly approaching zero.

      Rights and liberties are not divinely given. We have to fight for them. The only question left is when? When should we start risking life and luxury to force our government to listen?
  • apc3161, on 07/04/2008, -0/+43This is the sentence that scares me the most from that article:

    "The Bush Administration argues that Congress's vote to authorize military force against Al Qaeda and the president's inherent war time powers were exceptions to the exclusivity provision."

    So I can understand how you can "declare war" on them, but how in gods name do you go about declaring a truce or victory? I can't imagine some ww2 type of situation where they come out, sit at a table and declare and end to this. As such, the idea that executive branch can claim war time powers indefinitely is quite frightening. The entire idea of calling all of this a "war" is retarded. The future is not looking too bright.
    • rald84, on 07/04/2008, -0/+14chalk it up to Yoo et al's crazy unitary executive theory that runs counter to the idea of co-equal branches and check and balances
    • PeppermintPig, on 07/04/2008, -0/+10Nobody has declared war, so the president doesn't have war time powers.
      • obliviousfool, on 07/05/2008, -1/+3And that's the simple answer which everyone will immediately disregard.
      • PeppermintPig, on 07/05/2008, -0/+2Would you say we have a plethora of morons in government?
  • Rustymetal, on 07/04/2008, -4/+26Fascism taking over america. This aint no alien conspiracy, this ***** is real, written on the dollar right under the masonic seal.
  • gradivus, on 07/04/2008, -3/+14I would to see ONE example of america not being a police state. Just one.
    • BrokenCircle, on 07/04/2008, -1/+9I peed on the sidewalk this morning.
      • mrzeero, on 07/04/2008, -0/+28You are lucky no one saw you or you may have been classified as a sex offender for life.
    • vexingmodstwo, on 07/04/2008, -5/+6You're posting on it.
      • workharderscum, on 07/04/2008, -0/+19They're watching you on it.
      • bipolarruledout, on 07/05/2008, -0/+0The simple matter is they can't watch everything.... yet. If the funding is approved under the guise of national security then watch out. The DEA is already charging people with conspiracy to manufacture just for READING information on the web. Few convictions but they can really make your life hell. How much money do you have around for legal fees? Terrorism is the new war on drugs.... otherwise know an war against the people. The beauty of it is they get to pay for it themselves.
  • mrzeero, on 07/04/2008, -1/+13Young man, are you listening to me?
    I said, young man, what do you want to be?
    I said, young man, you can make real your dreams.
    But you got to know this one thing!

    No man does it all by himself.
    I said, young man, put your pride on the shelf,
    And just go execute the P.N.A.C.
    I'm sure they can help you today.

    http://en.wikipedia.org/wiki/Project_for_the_New_A ...
  • rationalbeats, on 07/04/2008, -0/+21Is this what it was like in Germany in the early and mid 30's?
    • LenBaird, on 07/05/2008, -0/+3Yes. Naomi Wolf wrote "The End of America" after a friend of hers who was alive in Germany at that time told her exactly that. She began to research, and discovered that the exact same things were happening in Germany during Hitler's rise.
      Very good book. Paperback, cheap, fast read.
  • IAmCuteKitty, on 07/04/2008, -8/+2Barrack Obama.
  • Gutterpunk, on 07/04/2008, -11/+2John McCain
  • expatcatalyst, on 07/04/2008, -0/+12Someone has already been telling us how outside the constitution they all act. Seriously,everybody go read the book.

    http://expat.catalyst.googlepages.com/chooselibert ...

    http://www.campaignforliberty.com/
  • alphadog, on 07/04/2008, -0/+6Finally, someone with authority to put King George in his place.
  • BlacklabelSAR, on 07/04/2008, -0/+3No, I won't go quietly, not even close.
  • schneid4323, on 07/04/2008, -0/+4At least they arent all completely corrupt!
  • laudyms, on 07/04/2008, -0/+4We were seduced, then plundered. Next come the chains.
  • jellygraph, on 07/04/2008, -0/+5Wait... what do you do when government is out to get you? I suppose that may soon be a reality.
    • PopcornDave, on 07/05/2008, -0/+1Dress up as Muslim terrorists and dump tea in the river? Except then you'd be charged as conspiring under a terrorist activity, having environmental charges drawn against you for polluting the river and probably be sued by CAIR for unflattering impersonation of a Muslim.
      /sarcasm
    • LenBaird, on 07/05/2008, -0/+3It already is a reality in my opinion. They are still sort of pretending to like us, but it's a thin veneer.
  • jeexbit, on 07/04/2008, -0/+4It is truly amazing that all of this is happening out in the open... At least, the part that we *know* about....

    But hey, as long as I can catch the latest episode of American Gladiators, what the hell do I care?

  • SaraLiberty, on 08/16/2008, -1/+8"Home of the Brave, land of the Free?! I see few of the brave, I see slaves, zombies and morons everywhere. That's what America is all about NOW. Many complain and do NOTHING about it - just watching from their sofas as the Government Inc. is taking their rights away, faster and faster. And all of it is based on the 9/11 HOAX that Government Inc. pulled 7 years ago. Urban Myth. Frak, ppl, where are your ballz?! Where's your pride?! "

    Who are the evil terrorists who attacked us because they 'hate our freedoms and way of life" again ?
  • nontoxyc, on 07/04/2008, -0/+12This is the guy who Obama wants to help Bush avoid. The fact that the democrats are just as complicit as the repuglicans in all of this is worst of all.
  • Zoness, on 07/05/2008, -0/+1Good, at least we are making somewhat of an effort to remove these goons.
  • R1ng00, on 07/05/2008, -0/+1unfortunately nothing will be done abut this or our government being out of control and I don't have any reason to believe that Obama will do anything (after his voting for this) to change it. I don't see any real change happening - we'll all just sit back and take it in arse.
  • SatoriSeeker, on 07/05/2008, -0/+1Thank you for standing up for the fabric this country was built on Judge, the CONSTITUTION! Not the Bible or this fealty people seem to keep showing to a tyrant in office just because we used to respect what the office used to embody, real leadership, real wisdom, real justice. The time has come for the real patriots to reclaim this country. And currently the number of real patriots in congress can be counted on 1 or 2 hands, so we have a lot of work to do!
  • chrispr, on 07/05/2008, -0/+1From the article:
    "The vote for or against amnesty not about whether telecoms participate in the future. In the future, they are supposed to get court orders -- that's the promise of the bill."
    and from aclu.org
    "On June 20, the House passed H.R. 6304, an unconstitutional surveillance bill that sanctions warrantless wiretapping and hands immunity to telecommunications companies for their role in domestic spying."

    So, is the new bill warrantless or not? I was under the impression from numerous sources that it is not.
  • ImperialRome, on 07/05/2008, -0/+1But they (9th circuit) WILL most likely have to rule on this issue that Walker ruled on when that suit is refiled. And just as surely as the amended complaint will be refiled , so too with this issue get appealed to the 9th circuit, and also to the Supreme Court. You know that this issue isn't settled one way or another until the Supremes have ruled on it.
    Should the 9th rule in support of Walker's ruling, the Feds will just as surely appeal, and in their appeal, they will cite the contradictory rulings from 2nd and 4th circuits. The Supremes will have to review and end the dispute.
  • kigcoopa84, on 07/09/2008, -0/+1Talk about abuse of the constitution... The congress can't take power away from a fereral judge because they don't like a decision
  •  

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