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Author Topic:   Spy - *Trapping*: American Phone - Tap
neptune5
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posted August 19, 2006 12:42 PM           Edit/Delete Message   Reply w/Quote
Is this something as serious as a daily governmental invasion of privacy or is it just a blast from the past?

'No hereditary kings'
A Register-Guard Editorial
Published: Saturday, August 19, 2006

A federal district judge in Detroit did Thursday what an invertebrate U.S. Congress has refused to do since The New York Times reported last December that the Bush administration was spying on Americans' telephone calls and e-mails without warrants.

Judge Anna Diggs Taylor stood up to the administration's trampling of the Bill of Rights. She ruled that warrantless wiretapping of U.S. citizens violates the Constitution and federal law. And she ordered the National Security Agency to shut it down. Now.

It was a courageous defense of the Constitution from a judge who as a young black attorney in 1964 helped face down an angry crowd outside a sheriff's office in Philadelphia, Miss., after three civil rights activists turned up missing.

That harrowing experience may have helped prepare Taylor for the task of rejecting the administration's specious yet intimidating argument that a lawsuit against the NSA operation should not go forward because it would damage national security by divulging state secrets.

The ruling came in a case brought by the American Civil Liberties Union on behalf of reporters, academics and researchers who claimed their overseas contacts have dried up as a result of the NSA wiretaps.

Taylor's ruling is merely the first step in a case that is likely to end up before the U.S. Supreme Court. Calling the program "an essential tool" in the war on terrorism, the administration promptly appealed the ruling and sought a stay to prevent it from being enforced.

It would have been shocking if the administration had done other- wise. Since shortly after the terrorist attacks of Sept. 11, 2001, the president and his minions have argued that the commander in chief has the wartime authority to override the law.

Taylor set that argument on its head, where it belongs. The president, the judge said, violated the Fourth Amendment and other constitutional protections, as well as federal statutes, when he authorized the military to wiretap the international calls and e-mails of Americans sans court oversight.

"It was never the intent of the Framers to give the president such unfettered control, particularly where his actions blatantly disregarded the parameters clearly enumerated in the Bill of Rights," Taylor wrote. She added: "There are no hereditary kings in America."

Bush has insisted that Congress gave tacit approval to such activities in 2001 when it authorized the president to use "all necessary and appropriate force" against those responsible for the Sept. 11 attacks.
http://www.registerguard.com/news/2006/08/19/ed.edit.nsa.phn.0819.p1.php?section=opinion

Have you been tapped?...

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Virgo Rising, Sagittarius Sun, Pisces Moon

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jwhop
Knowflake

Posts: 2787
From: Madeira Beach, FL USA
Registered: Apr 2009

posted August 19, 2006 05:03 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
EVERY US court, going back in history has ruled the President does have the INHERENT AUTHORITY under Article II to order surveillance, which would include wiretaps and eavesdropping to gather foreign intelligence...INCLUDING THE UNITED STATES SUPREME COURT

The United States Constitution and prior legal precedent is not to be used by politically motivated judges to arrive at a preconceived decision which fits their own political leanings.

This judge should be hauled before the House of Representatives and impeached for misconduct and incompetence.

Single handedly, this judge has just put the lives and safety of every person in America in jeopardy.

August 18, 2006, 3:47 a.m.
Amateur Hour?
A judge’s first-year failing-grade opinion.
By Bryan Cunningham

The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.

We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.

Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.

Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception” to FISA’s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.

More worrisome still are the judge’s breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an “F.” Here’s one of several examples: The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is “reasonable.” Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a “domestic” program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs, such as protecting us from attack, against other constitutional interests.

Lest there be any doubt as to whether Keith supported Judge Taylor’s view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that “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.”

While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge’s missive.

Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion.

Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.

Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention:

—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context (seizure of U.S. steel mills in the face of a union strike);

—that 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

most 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.

Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.

Trivial Pursuit. Perhaps most disturbing about the judge’s opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal “Schoolhouse Rock” episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP “regulates.” FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.

Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge’s oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.

Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2” British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

As Judge Taylor’s new favorite justice, Robert Jackson himself, warned, the courts should not “convert the constitutional Bill of Rights into a suicide pact.” I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor’s giant step in that direction to stand.

Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.
http://article.nationalreview.com/?q=OWVlOGNiZmIyMmZkYTg2OGFiYzM3ZGU4Nzc0MjFjNzQ=

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jwhop
Knowflake

Posts: 2787
From: Madeira Beach, FL USA
Registered: Apr 2009

posted August 19, 2006 05:19 PM     Click Here to See the Profile for jwhop     Edit/Delete Message   Reply w/Quote
Now, who are the F-ing idiots who are filing these federal lawsuits against the NSA program?

You might be surprised. You think it's the ACLU acting on behalf of civil liberties.

Wrong, it's terrorist supporters in the United States, funders of terrorist organizations and news services who talk to overseas foreign terrorists.

Judge Decides Defending Americans Unconstitutional
August 18th, 2006 4:25 am

It’s a shame that Jimmy Carter-appointee Anna Diggs Taylor saw fit to rule against a tool for defending citizens that has repeatedly proven successful… including this past week when thousands of innocent men, women and children were spared “The Big One“.

Let’s remember who the plaintiffs are in this case:

They include Noel Saleh, a man who has proudly admitted funding Hezbollah, Mohammed Abdrabboh, a Palestinian attorney who admits in this very lawsuit that he represents terrorism suspects (despite having sworn prior to the contrary), Nabih Ayad, whose friends “openly donated millions to HAMAS and privately raised money for Iraqi insurgents at a Los Angeles area fundraiser,” and Nazih Hassan, a member of a group founded with HAMAS money.

It’s interesting what these plaintiffs claimed about the surveillance program, too:

The ACLU filed the lawsuit in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors international phone calls and e-mails to or from the U.S. involving people the government suspects have terrorist links.

They “believe many of their overseas contacts are likely targets” of a program which monitors communications with people outside the U.S. suspected of having “terrorist links”? Well, no wonder they don’t want the government to know what they’re saying or plotting.

The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists.

In 1978, the 32-bit VAX systems were the industry standard (only being used by large institutions), and cell phones were used by less than 500 people around the world. A law established in that year to regulate the “electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power” is outdated in this day and age of instant messaging, disposable cell phones and an enemy who’s repeatedly tried to exploit our security gaps in furtherance of their declared goal to kill us all. Asking investigators to jump through hoops that could take hours or days when a lead could go cold in less than an hour is dangerous.

Opponents of this security program (which is supported by over 60% of Americans) paint it as a system designed by George W. Bush and a few buddies on the golf course in an attempt to install a fascist dictatorship in America. What they fail to acknowledge is the oversight of this system includes it being periodically reviewed by Congress (including Democrats like Nancy Pelosi).

To say nothing of what 5 former FISA judges have said about the program:

…a Foreign Intelligence Surveillance Act does not override the president’s constitutional authority to spy on suspected international agents under executive order.

“If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”

So bottom line, this case is about Carter appointee incorrectly ruling on an ACLU-concocted lawsuit on behalf of admitted anti-American terrorist sympathizers challenging a type of program that has succeeded in thwarting massive terror plots on multiple occasions, claiming the President is wilfully breaking the law, despite the program having Congressional oversight and overwhelming support in the Justice Department, the legal community and the American public.

While our minimum wage airport security officials are focusing on shaving cream and toothpaste, the terrorists are being handed a gaping loophole in security by the liberal Left and their terror-loving “plaintiffs”.
http://www.texasrainmaker.com/2006/08/18/judge-decides-defending-americans-unconst itutional/

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neptune5
unregistered
posted August 19, 2006 05:30 PM           Edit/Delete Message   Reply w/Quote
Wow, I had no idea about its true past. Your right, those terrorists just don't know the word "stop", they should all get the word lie pasted on their foreheads, but who would? Nobody knows who and what the REAL terrorists look or act or sound like, and we can't count on Bush because we still don't know where the WOMB are? Hmmm..I listen to those "end times" prophesies and they say that in the book of revelation that all those humans who accept the marking of the beast (or follow the beast and praise him) will be plagued with locusts. I wonder if the includes those terrorists (including Osama), but at any rate they wouldn't believe it anyway because they think what they are doing is right because they say it in the name of "allah". But in the truth it is a double wrong because they are not just doing a disfavour for themselves and their communities but they are taking their God's name in Vain , muderous, bloody, VAIN, so for them their is no hope. But i'm still shockingly upset about the tapping, i'll never be able to get over it, you don't see in the news about american citizens peeping in and listening to the next law the government is going to give out to us, because all that **** is censored. When FEMA director Michael Brown got the bad wrap and was scapegoated for something that Bush did, a commentator made a statement that said..."well the old saying goes...everything good comes from the white house..and everything bad comes from everywhere else". But jwhop your good at analyzing, you should have became a political analyst or at least a strategist.

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Virgo Rising, Sagittarius Sun, Pisces Moon

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