Hello Victoria,
I guess right now that I am at a total loss of words. I enlisted in the Marines on Sept. 12th, 2001 because I was so outraged at what had taken place, and I wanted revenge. I wound up being sent to tankers school shortly after that where I learned to drive a tank and shortly there after was deployed to Iraq.
I was in the initial push up to Baghdad and on, and since then have served two additional tours and am considering going back again. I am home here in Lake Oswego visiting my parents and I guess maybe you can help me understand how it is that a judge in Detroit can make a decision that stops the most powerful man in the world from protecting us as a nation?
When I enlisted almost the whole country was behind what it was that we were doing and demanding restitution for the massive deaths in NY, and it seemed as though every time I would come home on leave, or after my tour was over that politics just got worse and worse. I have seen some of the worst things that a person can see, I have seen and heard stories from Iraqi's themselves about people being put in plastic shredders feet first without probable cause and other stories that would turn your stomach as to what an evil leader does to a country. I sat and drank tea in their houses and listened as they would told us how they would give anything to live in our country and then go on and tell me things about life under Saddam's leadership.
I guess that I am at a loss for words as to what's going on and feel as though I want to go back to one of the only places where things make sense and where adding up one plus one and getting two. Kinda funny I have to go half way across the world to a war zone to find something like that. Where is the outrage? Where are the people standing up to the minority who are making it seem like they are the majority?
I can see it right now as our hands are being so tied by the left, no wire taps, no racial profiling, terrorist rights in Guantanamo and Abu Grahab (where I have been and they ate better then the Marines who serve them). I can just see it now after the next terrorist attack which is eminent......Bush Administration does nothing to thwart terrorist attack, Bush responsible for mass death on his watch...
I just don't get it, what's it going to take for us to wake up, and who is one judge to tell the most powerful man in the world no?
Your friend,
Adam
Friday, August 18, 2006
A Marine Responds to NSA Ruling
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38 comments:
Adam, Welcome Home.
I understand your frustrations, having experienced them myself during and after my time in Viet Nam. I am constantly amazed at the lengths some on the left are going out of what I can only describe as hatred of George Bush. It would appear to me their hatred takes precedent over their own family’s safety.
I don't entirely blame the common people, but the leaders and the media that have been spinning this since day one. Oh, they said they supported going into Afghanistan but saw an opportunity to re-fight Viet Nam and relive their glory days of the late 1960s and early 1970s.
They sold us out then and are selling us out today.
Just realize there are more than you realize back here that have your backs. Whether you return or not is your choice, you have already given a lot and believe me, it is more appreciated than you may realize.
Incidentally, although I am not an attorney, I was reading elsewhere about this activist Jimmy Carter Judge and her decision from an attorney and he reminded all that her decision actually only applies in her district. She may not think so, but she doesn't have the power to overrule Bush or any President totally.
Personally, I will bet dollars to donuts this outrageous ruling will be overturned soon. Once it is, Congress needs to investigate this woman and how she got this case as well as reports of her grabbing at other cases assigned to other judges when she wanted to rule favorably for the ACLU.
Never fret, though. As I see young people like yourself volunteering for our Military Services, I can see the country is in very good hands and will come out alright.
Well Done, Marine (from an Army Vet)
I have seen some of the worst things that a person can see, I have seen and heard stories from Iraqi's themselves...
We have heard stories and seen things too. Such things are hard to take. It is tragic when you have a force not much better than the one that it replaced. There is wonder how many more crimes of this nature are still unknown, or being covered up.
Let's cut to the chase. I see it all now, it will be some time (very soon though) that the Bush Administration will accept silently that the Iraq War was a miserable failure. In a fleeting speech, Mr. Bush will say something like this:
We have adopted a plan which we have worked out in cooperation with the Baghdad Provisional Government for the complete withdrawal of all U.S. combat ground forces and their replacement by Bhagdad forces on an orderly scheduled timetable. This withdrawal will be made from strength and not from weakness. As South Vietnamese forces become stronger, the rate of American withdrawal can become greater.
A little while later (maybe a month) something like this will be announced:
The cease-fire will take effect at 2400 Greenwich Mean Time, [fill in date]. The United States and the Democratic Republic of Baghdad, better known as the Green Zone or "Little America", express the hope that this agreement will insure stable peace in Iraq and contribute to the preservation of lasting peace in the Middle East. During the next 60-day period, all American forces will be withdrawn from the Green Zone. The people of Iraq have been guaranteed the right to determine their own future, without outside interference. blah blah blah
In other words, we got our butts kicked. Flags will be rolled up, helicopters loaded, dead bodies bagged up and the last of the American forces will make a bee-line out of Baghdad Airspace to the safety of Rammstein Airbase. Ahhhhh.....was it all just a dream?
The Administration won't, of course, accept blame personally for any failures of the War. Naw, they will blame it on the military's inability to successfully force Democracy. Yes Adam, in the end the blame will be all yours and those that served with you. Republicans will suffer personal madness over the fact that their nation building policies failed and they will resort to blaming Democrats. Americans will forget all about it and everything will return to "normal".
Adam, I do have a suggestion for you. If you love it over in Iraq so much, you should definately get back over there, find a nice Iraqi woman and fade into obscurity. Do it quick before you become a scapgoat. The Republican Party is getting desperate and there is no telling when they will set their sights on you and your fellow soldiers.
Robert: Are you so desperate to bash the President and his administration that you have to attack a guy who has put in some extremely dangerous duty in Iraq? It is obvious that you have not been there, nor do you or any of your leftie pals want to. For you to lay on such an attack on a combat veteran puts you into the same camp as John Murtha, alQaeda's senator and ex- (not former) Marine. You can't get much lower than that.
Lew: You are right when you say that this so-called judge needs to be investigated. You have to remember that she is a Jimmy Carter appointee. That alone should tell you all you need to know about her. I wouldn't be surprised if it turns out that she is friends with Ruth Bader Ginsberg, Supreme Court Justice (although, in her case, the word "Supreme" should not be capitalized), and one time AmINOCLU attorney.
When this is over and her decision is overturned, perhaps Congress should look at impeachment of her and her pro-terrorist leanings.
One other thing, Lew. Did you see in yesterday's fishwrap that the head of the AmINOCLU was saying that her decision was a victory against Bush's war on terror? At the very least, this guy should be disbarred.
Robert, your reply is what I have come to expect from those that claim, "I support the troops, but not the war." Very supportive of you when you suggest Adam return to Iraq and marry an Iraqi.
I remember moonbats as you when I returned from Viet Nam and have run across too many in the ensuing 36 years.
Little do you realize that if Iraq goes the way Viet Nam did, it will not be because of brave young people like Adam or the vast majority of troops serving there (nice of you to post stories implicating atrocities of a very minor small handful as if all committed them), but will be due to the efforts of leftist Bush bashers, again, like you.
We were continually undermined in Viet Nam and forced by the left to leave. We agreed to a Peace Plan that ensured a free country we would reenter and protect them if the oppressive communist North attacked them. Due to the efforts of a mostly Democrat Congress, a bill was passed prohibiting any future aid or help to South Viet Nam.
Then, for over 30 years, those of us who served and sacrificed our youth to protect freedom and liberty around the globe, as stated by Democrat President, John F. Kennedy, have been bombarded with messages from television, movies, politicians, book authors, school teachers and college professors and the socialistic left leaning banker types with tales of what losers we were, what a danger we posed to society (it was no less that John 'F'in Kerry that stated "The country doesn't know it yet, but it has created a monster, a monster in the form of millions of men who have been taught to deal and to trade in violence…..," and looked upon us a deranged, potentially violent hair triggered war criminals. We are called "baby killers," even though we may not support abortions (who do you think really kills more babies?).
No, I've seen your type over and over for many years now. In your egotistical hatred of George Bush and Republicans, you sit in your self-proclaimed ivory tower and try to portray an image of caring about the troops when you actually despise them, probably out of jealousy. Jealousy that they have the guts to stand for something and desire to see others free to live as we do. You think bashing Bush and the WoT to a U.S. Marine fighting it will make others think you care enough to not want to see him hurt or injured when you couldn't care less that your defeatist rhetoric will cause many more deaths of Americans in harm's way than save.
Just like from back in the 70s, if you succeed in forcing an American abandonment of Iraq, you will puff out your chest bragging at how you "stopped a war." In fact, the leftist anti-war protesters did no such thing. They prolonged it by 5 years at a cost of nearly 40,000 more American lives on the battlefield.
You remind me of a slick banker slyly talking a farmer into a loan, knowing the terms will end up making the farmer lose their farm and the bank to take possession of it with the intent to make a profit off the sale of the land.
People like you, Cindy Sheehan, Ned Lamont, John Kerry and so many more couldn't hold a candle to men and women like Adam, you can only be jealous that they have their values and stand up for them.
You should thank God (or whatever you may believe in) that there are still people like Adam willing to stand and protect you in your ivory tower, just so you can trash them.
Adam, if you read this, pay no mind to people like Robert. Whether they ever served or not, they have forgotten what it means to stand for something that is worthwhile standing for.
Scottie, I don't buy either of our local fishwraps, waste of money. But, I have been hearing many breaking their arms patting themselves on the backs over this.
I watched an exchange this morning on Foxnews bewteen Democrat and Republican analysts discussing this. Of course, the Dem was beside himself over it while the Rep was trying to talk sense and logic. The Dem just keep chanting, "just get a warrant." The Rep mentioned, as I have elsewhere here, how do you propose gathering evidence to obtain a warrant if you are barred from obtaining the evidence discovered in eavesdropping in the first place? No answer, naturally.
In their hatred of Bush and Republicans, I am continually amazed at how they will tie the hands of the Military, the President and anyone else who desires to see terrorists defeated. It appears that hating us is more important to them than ensuring the safety of their own families.
Thank God our country still have people like Adam and Casey Sheehan. Where would we be without them?
Adam, as you awaken each day and breathe the air of freedom that both sustains and delights us, your selfless service to our nation will make EVERY breath that much more sweet.
As for Robert, I delight (I mean REALLY DELIGHT!) in the misery and pathos that each new dawn will bring him for the remainder of his days.
Well done Marine...and thanks.
Robert: Head for Cuba while its still a Socialist Utopia.
Adam: Back in 1973 I was in the last part of the Draft. I new somthing was weird about the Democratic Party even back then. I was frustrated.
It took till 1992 for me to really figure it out. These "AINO'S AMERICANS IN NAME ONLY, don't give a rats you know what about this country. Their allegiance is to the world, THE SOCIALIST U.N. and world Socialism. UNIVERSAL HEALTH CARE is more important to them then the Military, the war on terrorism, etc. It was and is, very important for most Patriotic people this includes the good people in the Military to Not, and I mean NOT,READ, LISTEN, OR WATCH THE LIBERAL SOCIALIST MEDIA. Even the BBC,is bad. Get your News from Victoria Taft, Rush Limbaugh, Sean Hannity, Fox news, www.washtimes.com The Drudge Report etc. For a joke check out PORTLAND.INDYMEDIA.ORG (leave off the www's) and you'll see what i'm talking about. These piece's of Garbage I believe are the people that Spat on solidgers back in 1973-1975 when returning from Vietnam. They are what has recently taken over the Democrtic Party. I advise anyone in the Military to help fight the Left here in America as well as doing their Patriotic duty over sea's. Keep up the good work, and I SALUTE you sir.
Adam asked, "who is one judge to tell the most powerful man in the world 'no.'"
Well, Adam, when you joined the Marine Corps, you took an oath very similar to the oath of office which Judge Taylor took. You both swore to uphold the Constitution of the United States. Under that Constitution, a federal judge assumes a number of duties. One of those duties is this: if she finds that a federal official, including the President, has acted in violation of the Constitution, she has a duty to order him to stop. Judge Taylor has carried out her duty. You disagree with her opinion. Of course, you have the right to disagree. But when you challenge her right to do her job, I think you show a questionable understanding of the job she has sworn to do. We are and always have been a country of laws, and even the President of the United States is not above those laws.
David, according to many, even some that oppose the eavesdropping program, Judge Taylor may have violated that oath in this decision. Whether or not she did, we may not know. But too many are noticing just what she chose to ignore to come to the decision she did.
Adam is fulfilling his oath. Is Judge Taylor if she ignored case precedent and standing law to issue what may possibly be a preconcieved ruling?
I am looking forwad to the opinions issued when her decision is overturned, as I'm sure it will be.
BTW, can you direct me to portion of the Constitution that lets a District Judge over rule a sitting President (any President, not just a Republican) in his prosecution of a war? I seem to have missed it.
Lew:
Artilce III, as construed in Madison v. Marbury, 1 Cranch 137 (1803), and Yougstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); see also Prize Cases, 2 Black 635 (1863); on judicial review, see also Cooper v. Aaron, 358 U.S. 1 (1958); Baker v. Carr, 369 U.S. 186 (1962); United States v. Nixon, 418 U.S. 683 (1974); and New York Times v. United States, 403 U.S. 713 (1971).
I would also note that I find your idea that Judge Taylor violated her judicial oath of office by ruling as she did sadly result oriented. You seem to believe that anyone who does not adhere to the administration's reading of the Constitution is dishonest, disloyal, disingenuous, or worse. I disagree with that view. While Judge Taylor may be wrong -- and we do disagree on that point -- I think any question of her sincerity in this matter is specious at best.
David, as I said, many that also oppose the program are seeing problems with the ruling.
Amateur Hour
Orin Hatch calls it A Reckless Decision that Will Be Overturned
Even the New York Times, hardly sympathetic to Bush or the Republicans says Experts Fault Reasoning in Surveillance Decision
An editorial in the Wall Street Opinion Journal says A federal judge rewrites the Constitution on war powers
The Dallas Morning News says even legal experts who agreed with the judge's conclusion were distancing themselves from the decision's reasoning and rhetoric on Friday
You see, David, it isn't as you think, "I find your idea that Judge Taylor violated her judicial oath of office by ruling as she did sadly result oriented," at all. Indeed, perhaps it is you that is elated over it because of your own "results orientation" outlook.
Lew,
Well, sir, I cited rulings from the United States Supreme Court for my position. You have cited newspapers and magazine. While these may be informative, they are hardly controlling l;egal authority.
Further, I checked the sources you cite, and I read them in a way that is fundamentally different from the way you do. Although there are many responsible and reasonable critics who disagree with Judge Taylor's conclusion, I do not find anyone cited by the New York Times, The Wall Street Journal, or the Dallas Morning News saying that the judge did not have the power to rule as she did. The critics suggest that her reason is weak and her results wrong, but they do not say that she went beyond her office as a federal judge in ruling as she did.
Even Randy Cunningham, the author of "Amateur Hour" did not say that the judge went beyond the scope of her authority. He said enough other things that I question whether his comments do not go beyond what the Canons of legal ethics require of an attorney. Attorneys are expected to show respect for the courts at all times and under all circumstances. Even when a judge rules against an attorney in a particularly scathing manner, the proper response of the attorney is to do nothing that insults the dignity of the court. Mr. Cunningham's article, besides containing a number of errors so significant that I doubt that any attorney will take his piece at face value, shows a reckless disregard of the dignity of the federal courts.
Lew,
Well, sir, I cited rulings from the United States Supreme Court for my position. You have cited newspapers and magazine. While these may be informative, they are hardly controlling l;egal authority.
Further, I checked the sources you cite, and I read them in a way that is fundamentally different from the way you do. Although there are many responsible and reasonable critics who disagree with Judge Taylor's conclusion, I do not find anyone cited by the New York Times, The Wall Street Journal, or the Dallas Morning News saying that the judge did not have the power to rule as she did. The critics suggest that her reason is weak and her results wrong, but they do not say that she went beyond her office as a federal judge in ruling as she did.
Even Randy Cunningham, the author of "Amateur Hour" did not say that the judge went beyond the scope of her authority. He said enough other things that I question whether his comments do not go beyond what the Canons of legal ethics require of an attorney. Attorneys are expected to show respect for the courts at all times and under all circumstances. Even when a judge rules against an attorney in a particularly scathing manner, the proper response of the attorney is to do nothing that insults the dignity of the court. Mr. Cunningham's article, besides containing a number of errors so significant that I doubt that any attorney will take his piece at face value, shows a reckless disregard of the dignity of the federal courts.
Hi Adam: Socialist nut cases like Robert and WESTSIDEDAVID are good examples of AINO'S "Americans in Name Only" That I talked about. They must be kept Yelling in the streets and in the Permanent Minority.
Ps If you take a look at
portland.inymedia.org and
www.dnc.org theirs not much
of a difference.
And Adam: Keeping Liberal Socialist activist Judges off of
Courts like this Judge Taylor is
why its so important to keep
Concervative's in the White House
and in the U.S. Senate and U.S. House. The Ninth Curcuit Court also comes to mind. Its very wack-o Liberal and must change.
David, had you gone to the links I supplied, you would have seen actual references to court cases, including FISA appeals rulings, given by law professors and attorneys, many of whom agree with her outcome but see the trouble with her methods of decision, as I stated.
You really should try reading and getting from under your own preconceived notions. Even Judge Taylor, in what appears to be her ruling on a preconceived notion, relied on an 18th century case while bypassing much later cases that disagree.
Klatu - Please define what an "American" is.
Lew:
I did go to the links that you suggested. I read the articles that you cited. I have yet to find one source, other than you, who contends that a federal judge cannot enjoin behavior by the President which the judge believes to be contrary to the Constitution. That is what Judge Taylor did, and while her reasoning may be flawed, something that time will tell, I do not think any of her (sound) critics are denying that she had the power to do it.
David,
For a plaintiff to be able to file suit they must have standing (i.e. must be able to prove they have been damaged in some way). In this case the NSA listened in and took some action that harmed the plaintiffs. Based upon the analysis I have listened to the plaintiffs cannot prove they have suffered any damage. If the Judge jumped the gun and ruled this probably will be the error that the Appeals court will cite for overruling.
If the ruling is overturned on appeal look for the plaintiffs to shop their suit to another circuit.
I know everyone thinks this program takes away their 'rights'. Consider this which rights lost - the one to conspire with Al Quada terrorists to kill Americans. Think about it.
Remember the ultra violation of your rights is for a terrorist to kill you.
Kodiak,
Had you followed Ms Taft's suggestion and followed her link, you would have found that the government raised the issue of standing, and that Judge Taylor did consider the issue, at length. Notably, the government did not dispute the evidence the plaintiffs offered showing how the NSA program restricted their activities. Further, they did not dispute that the plaintiffs' activities were legitimate. The judge found that there were genuine infringements of the plaintiffs' legitmate exercise of their constitutional rights. From this, it followed that the plaintiffs did have standing.
Much of Judge Taylor's opinion is complex, so that it requires a good deal of background learning to absorb everything that she says. However, your comment suggests that the commentaries you have heard suggests that the court did not even consider the question of standing. A simple scanning of the headings that the judge used to guide readers would have shown that she spent several pages establishing the plaintiffs' standing.
It is entirely reasonable for someone who has examined this opinion to say that Judge Taylor erred in some of her reasoning. I regret, however, that some critics have stooped to the level of screaming polemic, and have lost all track of what the opinion says. In some instances, I wonder if the critics have even read the opinion they so decry.
If parties who oppose the NSA spying program do decide to go forum sshopping, they can hardly guarantee themselves a good welcome. A judge in another circuit may not be required to adhere to a ruling from the Court of Appeals for the Sixth Circuit, but there are very few judges who will do so lightly. If this ruling is overturned by the Court of Appeals, that appellate court's ruling will largely the discussion going forward.
Finally, I wish to address one other point: the administration has said that it cannot rely on the courts, even the FISA court with its accelerated procedure and its long history of cooperation with the exectuive branch (some 18,000 warrant applications granted as against 5 denied). As Judge Taylor pointed out, the administration has had five years in which to either apply for a warrant, or ask Congress to give it statutory authority to act without a warrant. It has never done either. It strains credulity to suggest that at no time in the last five years did the administration have a chance to seek the proper autoirty for this program.
Very nicely stated, David, as usual.
However, I have to imagine that nearly 3,000 Americans would disagree with your view as well as the judges ruling, if they could.
Lew:
Your argument rests on an assumption, that the United States can follow the Constitution OR it can fight the war on terror effectively.
I think that assumption is untrue: we do not have to relinguish the rights established in the Constitution in order to fight the war on terror effectively. In this regard, I would point out that I think the administration's program of having the National Security Agency monitor telephone calls could be made quite tolerable, if the administration merely looked to either of the other branches of government to sanction the program. In the wake of the Sepotember 11, 2001 attacks, the administration pressed Congress to adopt the Patriot Act, and it has managed to get many other pieces of legislation through the Congress since then. Why did this administration not seek a modification of the FISA statute to allow a monitorring program of this sort? Surely Congress would not have flatly refused to consider this, and this tack would have stripped the administration's critics of one of their foremost arguments about the overreaching of power.
Much of my thinking on this point is summed up in the language with which Judge Taylor closed her opinion: "Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile." United Statees v. Robel, 389 U.S. 258, 264 (1967).
David, obviously, we disagree. Thought not a legal beagle, I feel the administration IS following the constitution.
Of course, much propaganda has been spread by those that oppose everything the administration has done.
Several have come forwards saying it is totally constitutional, some even from former Democrat administrations. Congress was briefed and seemed to have no problem with the program, until the NYSLimes went public with it. That is playing politics with American lives, in my estimation.
As for Judge Taylor's decision, there is no guarantee it will be overturned or let stand. We will see. Based on comemnts by legals scholars, professors and attorney's in the articles I linked, I feel it will be overturned, but I may be wrong.
What disturbs me about her decison is her disregard for precedent from other courts while relying on a decision from the 18th century courts. Add to that the recent reports of what may be a conflict of interest on her part as well as evidence she has tried to snatch cases from other judges in the past, when she felt they may not rule in her favor, or as she would want it to be, and there may very well be trouble in this.
Most troubling to me is there was no evidence of any violation of freedom of speech, only assummption that their could be.
More troubling, and somewhat off topic, is we worry about the Patriot Act when our real liberties are being slowly taken away by a leftist agenda in the guise of "being good for us."
That alone should both sides sit up and take notice, but so far, it hasn't.
Lew:
Let me start with an observation: I like reading your comments. While we disagree, I find that you put much thought into what you have to say, and you keep to the high ground. Thank you.
Now, to address some of your points: I am no prophet and make claim to having the last word on constitutional issues. I believe that the administrations' program is unconstitutional. That said, when the appeallate courts issue a final ruling in this case, I will accept it for what it is, the final ruling.
This issue has been discussed widely, and much of the commentary opposing this program that has not been mere "propaganda." While some officials, professors, and other commentators accept the constitutionality of the administrations' program, many people reject that point of view. To try to dismiss all of these people as "propagandists" draws into question their motives and their sincerity. Many are as staunchly American as can be found. That they disagree with the administration does not make them less American.
On this point, I recall something that Theodore White said in his book "Breach of Faith." He discussed the patriotism of Benjamin Bradlee, the managing editor of the Washington Post and a key journalist in the fall of Richard Nixon. As White explained, as a freshman at Harvard in 1941, Bradlee tried to volunteer for duty in the Canadian Air Force. (He was rejected because he was too young.) As a junior at Harvard, he was allowed to take nearly a double load of courses, so that he, along with nine classmates, graduated nine months early, in August of 1942. In a single day, he took his diploma, got married, and enlisted in the U.S. Navy. He became a combat communications officer on a destroyer that fought its way from Guadacanal to Saipan. With that as his background, I find it difficult to challenge Bradlee's patriotism.
I believe that patriotism is love of the country, and includes demanding that the government adhere to the ideals on which the country is founded. Of course, this often means disagreement and dissent. I consider that natural and often healthy rather than disloyal.
I must dispute your reading of Judge Taylor's opinion. She did not rely on an eighteenth century case while disregarding later precedent. She cited only three cases that are not twentieth century material. Two are American cases from the Civil War era: One is Ex parte Mulligan, 71 U.S. (4 Wall.) 2, 120 (1866), in which the Supreme Court asserted that the Constitution is the controlling rule of law in America in time of war as well as in time of peace. She followed this citation immediately with a citation to a more recent case, Home Loan & Building Ass’n v. Blaisdell, 290 U.S. 394 (1934), in which the Supreme Court affirmed the notion that even a grave national emergency does not give the government powers which the Constitution does not grant. Judge Taylor also cited in this regard Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). See Opinion at 40-41. That case is important because in that case, the Supreme Court bl;ocked a presidential action taken in the name of national defense during time of war. At the height of the Korean War, steel workers threatened to strike, jeopardizing supplies of steel necessary for critical military programs. When efforts to avert a strike failed, President Truman ordered his Secretary of Commerce (Charles Sawyer) to seize and operate the steel mills. While the war continued, the Supreme Court ordered the administration to relinquish control of the mills. Among other things, I think Youngstown stands as strong evidence that the courts have intervened in government programs in time of war to assert that constitutional limitations still stand.
The other nineteenth century case which Judge Taylor cited is Totten v. United States, 92 U.S. 105 (1875), in which the Supreme Court first articulated the “state secrets” rule on which the government relied heavily. Again, she immediately noted that the modern Supreme Court has followed this precedent in Tenet v. Doe, 544 U.S. 1 ((2005). See Opinion at 3-4. I doubt that the government uqestioned her use of Totten as precedent, because it was on the basis of Totten and Tenet that Judge Taylor summarily dismissed the plaintiffs’ efforts to indulge in what she described as “data mining.”
The eighteenth century case that Judge Taylor referred to is Entick v. Carrington, 75 Eng. Rep. 807 (1765); see Opinion at 24-26. Judge Taylor cited that case as being a prominent historical precedent which subsequent courts have acknowledged as being one of the sources of the Fourth Amendment. Indeed, she cited Entick in a quotation from an opinion by Judge J. Skelly Wright, a judge on the U.S. Court of Appeals for the District of Columbia Circuit who was widely regarded as one of the great judges of the late twentieth century. He relied on Entick in his opinion in Zwiebon v, Mitchell, 519 F.2d 594, 618 n. 67 (1975). Judge Taylor explained that Judge Wright drew from the historical precedent which Entick provided in explaining the history and meaning of the Fourth Amendment. She immediately added that the Supreme Court opinions had acknowledged the historical importance of Entick, citing United States v. U.S. District Court, 407 U.S. 297, 316 and 328-29 (1972) [this opinion is often referred to as "Keith"]. While Judge Taylor noted the historical importance of Entick, I think it stretches legal reasoning to say that she relied on it while ignoring later cases. She relied on Keith and Zwiebon, two modern cases.
Also, Judge Taylor did discuss how the plainitffs had suffered a legally cognizalbe interest, addressing the contention that their claims rested on merely claims of spculation that they might be injured. The discussion, which runs from page 15 of the opinion through page 23, is fully of legal arguments that are quite complex, making an easy summary difficult, but her conclusion is clear: the plainitffs have suffered an injury which the courts can redress.
As to the real liberties that are being taken away from us by a leftist agenda in the guise of what is good for us, I disagree on several levels. First of all, I think the rights at issue in a challenge to the NSA surveillance program are quite real. These are rights guaranteed by the first, fourth, and fifth amendments, and I consider those right very, very important to all Americans. They go to the heart of what America is.
As to a "leftist agenda," when I hear the word "Agenda," I immediately rankle. Almost invariably, the "agenda" is what opponents will claim someone intends. Usually, the person or group supposedly pushing the agenda can say legitimately that they have no idea what their own agenda supposedly includes. I do not know what the leftist agenda includes, although you would probably classify me as a leftist, and I could not really disagree.
The "left," of course, is hardly the monolith that many of its opponents try to believe it is. To consider one example, I know prominent "left wing" figures who staunchly support the use of the death penalty and oppose any form of gun control. I have known leftists who believed that the Spetember ll attacks were orchestrated by the Bush administration, and leftists who laugh at that idea. Just as conservatives have a wide range of opinions, so do liberals.
To get back to the NSA opinion, like you, I will have to wait until higher courts rule. And as I said earlier, when the final ruling comes down, I will adhere to it.
David, as you should know, I am not a "legal beagle," and do rely on others I consider much smarter than I in legal matters. I tend to rely on what I consider good old-fashioned common sense.
While I feel confident this ruling will be overturned, that is far from guaranteed and I have been wrong before.
Everything I have read about this matter tells me the rights of no one are being infringed, except for those that lean towards terrorists. Maybe it is my military background, but to keep us safe and alive and to defeat terror, I don't mind giving up a little liberty temporarily, regardless of what Ben Franklin said.
Besides that, in our day-to-day business, I have lost no liberty at all from the NSA eavesdropping and I suspect neither have you, the ACLU (which I see as very un-American) nor any other poster here. Even the reporters worried their contacts from the Middle East that may be Al Qaeda have really lost nothing, I feel. Bear in mind, in all of this, we are dealing with discovering what a group of zealots bent on wholesale murder of us all, left or right, are planning.
Bryan Cunningham, a federal prosecutor and former senior CIA official under Clinton wrote one of the better articles against this decision, I feel. Addressing the decision he mentions the 1972 SCOTUS case (aka the Keith Case) on electronic surveillance which Judge Taylor herself mentions. She failed to note where it states, “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Also stated in the case, “We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”
Al Qaeda members corresponding with people within the US would fit the definition of “foreign powers or their agents” to me.
In the very Zwiebon case you mention and she relied on, she failed to address where it states “in dicta,” or, as explained by Bryan Cunningham, “language not necessary to decide the case, and, therefore, of no precedential value.” She then apparently ignored a 2002 decision of the FISA Court of Review wherein they stated, “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
Additionally, in the Youngstown v Sawyer case she replied on heavily and you mention, she fails to mention that Justice Jackson; “himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context.
[T]hat our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or
[M]ost importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.”
Even more disturbing to me than the cherry picking she engaged in is who filed this suit for the ACLU as well as her own connections to the ACLU: NSA Plaintiffs
See also: U.S. District Judge Who Presided Over Government Wiretapping Case May Have Had Conflict of Interest
Her conclusion on their “freedom of speech” being infringed may be clearly written, but it is far from clearly reasoned, especially since plaintiffs presented no evidence that they were even monitored, just an assumption that “they MAY have been.” Given the background and just who they are, maybe they should be monitored. Since the program is secret, no one knows who may have been or was being eavesdropped on. Many see this a frivolous suit based upon no legal standing to bring it in the first place, since plaintiffs cannot categorically state they were being listened to, just that they possibly could have been.
"We don't have any direct evidence" that the plaintiffs were monitored by the security agency, said Ann Beeson, associate legal director for the ACLU.
"But the plaintiffs have a well-founded belief that they may have been monitored, and there's a real chilling effect in the fear that they can no longer have confidential discussions with clients or sources without the possibility that the NSA is listening," she said.”
Makes me wonder just how this case ended up in Detroit in front an ACLU sympathetic judge in the first place. Apparently, I am not the only one. The Constitution vs. Counterterrorism
As to my mentions of agenda’s, yes, I see them chipping away at our liberties. Smoking bans, eminent domain, “hate speech” claims and laws, excessive gun control measures, government interference in free trade and business, failure by both parties to curb illegal immigration, ever increasing taxation, governmental interference in child rearing (to include schools), and several other infringements I don’t recall at the moment is what I am talking about.
The ACLU is at the fore in fighting for most of these infringements and I cannot forget they were founded and staffed originally by Communists who openly advocated instituting the style of life we saw fail in the Soviet Union.
As to Judge Taylor’s ill informed decision, as do you, I will abide by it if it is upheld. However, that doesn’t mean I will stop speaking out where I see our freedoms and liberties threatened by terrorists or far leftist who seem bent on destroying our way of life.
To the rest, we will disagree on friendly terms, I hope.
David,
Some additional reading for you is Robert Novac's Aug 28th column concerning the Judge in this case. Can you conflict of interest by the judge.
I'll wait for the 6th circuit to rule on the appeal.
Lew:
For better or worse (and we can and probably will debate which it is at length), the rights guaranteed by the First Amendment have long been given particularly intense protection by the federal courts. The courts have done so with the full realization that is it almost a given that the unpopular, offensive, and even feared speaker is the one entitled to protection. No one really worries about the free speech rights of the speaker with whom we all agree. It is the speaker who offends us, the irritant, the outsider, the offensive speaker who is entitled to special protection. In this instance, you admit that the rights of some persons are being infringed. You do not like these people, but they are people, apparently American citizens, protected by the Constitution. Also, according to the declarations filed with the court in the NSA case, there are people who do not necessarily “lean towards terrorists” whose rights are being infringed. Many journalists cover news that does not necessarily agree with their political views. A journalist interested in jihadists often most interview subjects that he (or she) would never invite home for dinner, and they have every right to do so.
As to other “regular” people losing their rights, I have to disagree with your view that no one feels any restriction of their rights. I wonder if the government is listening to my telephone calls. As a result of the government’s aggressive listening campaign, there are certain sensitive subjects that I simply do not talk about on the telephone. It makes communicating with people difficult, because I often have to drive considerable distances to meet face to face with people.
Of Bryan Cunningham’s piece I will say little. It is a diatribe rather than a commentary. Mr. Cunningham says that Judge Taylor’s opinion could not earn a passing grade in a first year law class. I do not know what exalted law class Mr. Cunningham refers to. I think the opinion would be a very well-received upper class seminar paper in most law schools, and I think Mr. Cunningham goes dangerously far into the realm of ethically questionable actions in writing as he does. I assume he never expects to file another “friend of the court” brief in this case before Judge Taylor. Indeed, I hope he has no such plans. Many judges would consider his remarks contemptuous.
(Of Robert Novak's column, I will say even less. It says virtually nothing of significance, and its placement amid adds for shrilly conservative books suggests that it was hardly meant to be anything other than the condemnation that it is.)
As for the Zwiebon case, Judge Taylor cited it for a single point: its discussion of the historical antecedents of the Fourth Amendment. Having reviewed Judge Taylor’s opinion, I think there is nothing wrong in her use of Zwiebon. Zwiebon shows that the federal courts have long been aware of the Entick case. As I read her opinion, that is all she cited Zwiebon for.
Whether Youngstown Sheet & Tube or Curtis-Wright Export is the more applicable case depends in part on the view of what is being monitored. Arguably, everything that was being prohibited in Curtis-Wright Export was being done outside the United States. The NSA wiretap program cannot make that claim. At least one party to the conversation is in the United States. Further, in Curtis-Wright Export, The Congress had adopted a joint declaration specifically authorizing the President to act. In Youngstown Sheet & Tube, the President acted without congressional sanction, as did the Bush administration in the NSA case. It is hardly an open-and-shut question as to which is the better authority in the NSA case.
Also, I think the connection between Judge Taylor and the ACLU is being overblown. I do not think she ruled for the ACLU because she was on a board that made grants to the ACLU, and it is hard to argue that she is in any position to gain from this ruling. Should she have disclosed this case to all of the parties: I think so. Would she have been required to recuse herself? I am not sure.
Judge Richard Posner’s article raises a problem that plagues the American court system. With extraordinary exceptions, any federal district court judge is entitled, or more properly required to hear any case that is properly filed before her court. During the Reagan administration, plaintiffs challenging a government ruling regarding milk filed their case in South Carolina, hardly one of America’s dominant dairy farming states. During the Red Scare that followed the First World War, one of the biggest issues was the right of states to regulate parochial – predominantly Catholic -- schools. The controlling case came out of Oregon, hardly one of the centers of Catholicism. First Amendment cases often come out of obscure places. The famous mandatory flag salute controversy came out of West Virginia.
Sometimes the assignment of cases based on the chance of where parties file means that a judge with comparatively little background on a specific area is asked to decide a case rasing issues with which he (or she) is painfully unfamiliar. In those cases, the lawyers carry an added burden: through their briefs and memoranda to the court, they must educate the judge on the specific issues of the case. In some instances, the judge can call on the added help of law clerks, bright young people fresh from law schools and preparing research materials for the judge.
Sometimes it means that lawyers who are unfamiliar with the legal issues are asked to decide critical issues. Sometimes it means that jurors are asked to decide matters that are extremely complex and arguably entirely beyond their grasp. (How does an ordinary juror in, for example, Eugene, Oregon, decide a patent case which requires the explanation of scientists and engineers to make any sense of anything.)
For many years, suggestions have been made to establish specialized courts to hear particular kinds of cases. For example, one noted law professor advocated appointing a special panel of judges whose background included science and engineering to hear cases involving scientific issues. The proposal met with very mixed reactions from the academic community, and has not been implemented by any administration since then.
If Judge Taylor’s ruling is overturned, if will not end the dispute. Indeed, the matter will be remanded to her for further proceedings, which will probably include a jury trial. That will mean that a group of ordinary citizens will sit in judgment over this program and its constitutional implications. In some ways, THAT terrifies me. After all, a cynic once said that the modern America jury is made up of five men on Social Security and seven women whose toughest intellectual challenge each week is absorbing the Soap Opera Digest. Into the hands of twelve such Americans we will put the fate of issues of staggering importance. But frightening as that may be, it is the system which our Founding Fathers bequeathed to us. They believed that a jury of ordinary citizens was the proper body to decide many of these issues. This was one of the founding principles of America. If we are to remain true to those principles, it is into the hands of such a jury that we must, with however much trembling, pass this case.
david,
Are you conspiring with others inside or outside this country to overthrow the Governement or kill American civilians?
I do not think so. The Government does not have the time or personel to keep track of your conversations unless the answer to the above question is 'yes'.
The NSA program assisted in catching the suspected bombers by the UK.
The real issue here is not a rights one it is wheather or not we are at war.
From your view point no state of war exists.
From mine and lew's viewpoint a state of war exists.
Kodiak:
I disagreee with your assessment of the situation. Even if there is a state of war, the Bill of Rights still applies. There is no "wartime exception" that I can find in the Fourth Amendment, and I do not think that there is one. As i pointed out in my earlier comment, I believe that lew, and you, and many of those who support the NSA wiretap program believe that the presentisituation forces America as a nation to a choice: we can either fight the war on terror OR we can have the rights which the Constitution guarantees us. I reject this notion of a forced choice as artificial and unsound. The FISA court has hardly been resistant to issuing warrant for wiretaps, and Congress has not withheld authority from President Bush to carry out his policies. Yet this program has gone on in secret for more than five years, during which the administration sought neither judicial nor congressional approval for this program.
Why did the administration continue this program for so long without seeking the approval of either of the other two branches of government. I can think the only reasons: (1) that they believed that approval would be withheld; or (2) they wanted to establish that President had the inherent authoirity to carry out such a program.
If the administration believed that either the courts or the Congress would refuse to go along with this program, then the administration is effectively admitting that the program is illegal. The courts have the power to declare executive action unconstitutional. That rule was established in one of the earliest great Supreme Court cases, Marbury v. Madison (1803). Congress has the power to make law, a principle clearly set forth in the Constitution. The suggestion that the administration needed to proceed in secret to get away wioth this program suggests that this administration wishes to discard the Constitution. As Judge Taylor pointed out, it would indeed be ironic if a President claiming to protect the United States violated the very Constitution on which the United States is established.
The alternative view is that the administration wants to establish that the institution of programs such as this lies within the inherent power of the Presidency. If that is the case, I think it should be a matter of open debate and discussion rather than a repeated pattern of secret presidential orders about which most of the nation is deliberately kept ignorant. I do not believbe that such a policy is consistent with American ideas of government. It may be said that such ideas are outmoded, that the modern world can no longer afford the luxury of democracy. In that case, what are we trying to create in Afghanistan and Iraq? There is a Bush bashing joke that while we agreed with Mr. Bush when he talked about exporting Democracy, we did not think that he was goping to export so much democracy that we had no more here at home.
Finally, given that this program is carried on in secret, without any effective oversight, I am not confident that NSA is so benign as many supporters of this program believe. In this regard, I notice that any time the state of Oregon proposes any modification of the present tax system, conservatives rise in a rage, damning anyone who even mentions tax increases, no matter what safeguards are offered. Every offer of limitations is denounced as a lie or worse. Ms Taft has her colorful (and stupid) opening for every hour of her show that she is broadcasting from the People's Republic of Portland, where no tax is too large, no business too small to pay them [sic], and yur job is just to write the check and lay [sic] down by your bowl.
If Oregon taxing authorities are categorically incapable of telling the truth about tax programs, perhaps Ms Taft will answer the question that she has previously evaded: why does she believe that the NSA is categorically incapable of abusing its power? Until Ms Taft at least acknowleges this question AND the NSA provides clear and convincing evidence of its benignity, there remain topics which I will not discuss over any medium that the NSA might be monitorring.
Ms Taft:
The question you have so far evaded remains on the table.
She's good at evading questions, you know. I'm still waiting for a link to a credible blogger or website for an elected liberal (in any position, really) who said that American soldiers "deserve" to die overseas.
It's been, how long now? Three months or so? More? Long enough that I can't even remember.
I agree.
Another point that she rather fails to acknowledge: officials in the administration of Portland are much more easily voted out of office, because elections in Oregon are, by and large, very clean. Ms Taft made much of her "Operation ID" campaign, but managed to avoid a key question there: while there may be the hypothetical possibility of persons who are not entitled to vote registering, did she have any evidence that such illegal registrations were actually occurring? If they were occurring, did she have any eivdence that they were occurring in sufficient numbers in any locality in Oregon to make any substantial difference in any election, local or state-wide? I believe that the Secretary of State's office reported that it makes on-going efforts to investigate any claims of election fraud, and has not yet found sufficient evidence to warrant the costs and bureaucratic nightmares that may well be involved in a program such as the one Ms Taft proposed. So the voice which decries government waste and excessive taxation may well be fostering a program that would be quite costly, and of questionable value, and Ms Taft conveniently declines to acknowledge that these are issues that she may well be bringing upon her listeners.
And as time goes on, the silence is defeaning.
Too bad you failed to check the links and titles I listed for DemocraticUnderground nearly three months ago, iknow.
They are now buried in archives and frankly, I'm not searching for them.
Talk about being good at evading.
BTW, DU is a very prominent Liberal Forum nearly equal to the venom spewed at DailyKos.
If you aren't willing to look at what is supplied, stop acting as if none were. It is very unbecoming, even for you.
Lew:
I have asked Victoria Taft to respond to my question. That you posted items some months ago about these questions may be interesting, but it does not show tht Victoria Taft is willing to acknowledge or respond to my question. Or you may wish to respond for yourself. To repeat the question: why do Portland area conservatives consistently say that local government is overreaching and will abuse any poer that is ceded to it, regardless of safeguard, while these same Portland area conservatives allow the federal government uncontrolled power, insisting that there is no possibility that the federal government will abuse the power which it is seizing?
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