Decision in NSA Wiretapping case

[Philistine]

Apparently, a judge has ruled that the NSA warrentless wiretapping is illegal and ordered an immediate halt to it.

News Story

It's a pretty forgone conclusion that implementation of the halt will be stayed until the Appellate Court decides on it.

--Philistine

[Philistine]

Here is the Court's Opinion.

Here is the Injunction Order

From the Order:

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III;

--Philistine

[Morion]

Imagine that! The courts are actually trying to uphold the Constitution! I wonder how many shrill voices will start screaming that this is unpatriotic and a threat to national security?

[scrapinpeg]

I'm sure you'll hear people voicing concerns as to the effect on national security. Aren't there?

I'm not sure those are the same people who go on about being unpatriotic. The only people I've ever heard bring that up are folks on the left, who carp about having their patriotism questioned -- never hear anyone actually questioning it, though.

[scrapinpeg]

As I read the decision, I have a hard time seeing how it can withstand appeal.

The first argument is essentially: 1) The government secretly monitors some people's international calls to the Middle East; 2) Some people in the Middle East know about this secret monitoring; 3) Some people who know about the secret monitoring will no longer talk with certain Americans over the phone; 4) This affects those Americans, who now have to travel or incur some other expense to make up for the impediment to communication and free association; and therefore 5) This violates those Americans' rights and is unconstitutional.

That's just silly. It's not the actual monitoring of actual conversations that has the chilling effect, but is rather the awareness that such monitoring goes on that has the chilling effect. By the same argument, the awareness that certain people may be subject to lawful court-ordered wiretaps, which necessarily imposes hardships on people like the mafia and drug dealers who have to go out of their way to evade eavesdropping in order to associate and communicate, makes all wiretaps unconstitutional because of their chilling effect. Again, that's just silly.

I haven't scanned the rest of the decision as to the Fourth Amendment aspect yet, but given the silliness of the first part, I'm not too optimistic.

[TrainingDummy]

I'm sure you'll hear people voicing concerns as to the effect on national security. Aren't there?

I'm not sure those are the same people who go on about being unpatriotic. The only people I've ever heard bring that up are folks on the left, who carp about having their patriotism questioned -- never hear anyone actually questioning it, though.

Michelle Malkin, Ann Coulter, Rush Limbaugh, Michael Savage, David Horowitz, Bill O'Reilly, Sean Hannity (I think). Probably more.

[Feltan]

Imagine that! The courts are actually trying to uphold the Constitution! I wonder how many shrill voices will start screaming that this is unpatriotic and a threat to national security?

Probably some. And it will be a different subset of shrill voices you'll hear as a cloud of nerve and/or chlorine gas wafts down Wall Street -- they'll be the ones complaining and incredulous that the Government doesn't do more to protect them.

Regards,
Feltan

[Have At You]

As I read the decision, I have a hard time seeing how it can withstand appeal.

The first argument is essentially: 1) The government secretly monitors some people's international calls to the Middle East; 2) Some people in the Middle East know about this secret monitoring; 3) Some people who know about the secret monitoring will no longer talk with certain Americans over the phone; 4) This affects those Americans, who now have to travel or incur some other expense to make up for the impediment to communication and free association; and therefore 5) This violates those Americans' rights and is unconstitutional.

That's just silly. It's not the actual monitoring of actual conversations that has the chilling effect, but is rather the awareness that such monitoring goes on that has the chilling effect. By the same argument, the awareness that certain people may be subject to lawful court-ordered wiretaps, which necessarily imposes hardships on people like the mafia and drug dealers who have to go out of their way to evade eavesdropping in order to associate and communicate, makes all wiretaps unconstitutional because of their chilling effect. Again, that's just silly.

I haven't scanned the rest of the decision as to the Fourth Amendment aspect yet, but given the silliness of the first part, I'm not too optimistic.

The judge's opinion is full of editorializing comments about the administration and her disfavor of the war on terror, and it's clear she's got a bone to pick. So it's not a good example of blind justice.

Her arguments about infringement of free speech aren't exactly silly, they're just wrong. Nobody's speech is actually "chilled" by these wiretaps. And even if it were it's not the government's fault, because nobody would have even known about it if the newspapers hadn't blabbed. The chilling effect she discusses is caused by awareness of the secret program, so the chilling is caused by whoever created that awareness. If USA Today were to report that a similar program existed, but it didn't really exist, then is the government still going to be on the hook for any resulting chill of free speech? Of course not.

And as you point out, this argument would make all lawful wiretaps unconstitutional because of the potential that someone might not want to discuss things over the phone for fear of the possibility that they might perhaps be tapped. Which is of course wrong.

The Fourth Amendment argument is also pretty bad. She applies constitutional restrictions on search and seizure -- the only remedy for which is the exclusion of such evidence at a criminal trial -- to a situation that does not involve criminal law whatsoever. These are not wiretaps for the purpose of gathering evidence for criminal trial, these are wiretaps for intelligence, with full notification to Congress as required. The judge makes the common mistake of thinking of the war on terror in criminal-law civil-rights terms, rather than in simple intelligence terms.

And the precedent is strongly against her with respect to the President's power to order such wiretaps -- why, there was a case involving the one who appointed her, letting Jimmy Carter do it.

So this one is very likely going to be reversed on all points.

[Philistine]

{snip}
The Fourth Amendment argument is also pretty bad. She applies constitutional restrictions on search and seizure -- the only remedy for which is the exclusion of such evidence at a criminal trial

Not after Hudson v. Michicgan (or even before it, really--there's always been other remedies--they just haven't really been particularly effective).

These are not wiretaps for the purpose of gathering evidence for criminal trial, these are wiretaps for intelligence, with full notification to Congress as required.

In what sense has there been "full notification to Congress"?

And the precedent is strongly against her with respect to the President's power to order such wiretaps -- why, there was a case involving the one who appointed her, letting Jimmy Carter do it.

So this one is very likely going to be reversed on all points.

Could be. I'm a bit sceptical of the Constitutional arguments.

On the other hand, I think the argument that the wiretapping violates the law (as opposed to the Constitution) is a very strong one. It's not articulated particularly well in the Court's Opinion, but IMHO it's correct on result.

--Philistine

[RoninX]

Her arguments about infringement of free speech aren't exactly silly, they're just wrong. Nobody's speech is actually "chilled" by these wiretaps. And even if it were it's not the government's fault, because nobody would have even known about it if the newspapers hadn't blabbed.

Excuse me? You just said that your rights aren't being violated unless you know they are being violated. These wiretaps are clearly intended to be acted upon should the occasion arise, that is their reason for being. As such the parties must be informed or the wire taps must be ordered in the manner laid out under law. Law enforcement agencies are not above the law. If you truly feel unsafe without big brother monitoring everyone's (or a certain profiled group's) actions then you should work to change the law not make excuses for those who overstep its bounds.

[scrapinpeg]

Her arguments about infringement of free speech aren't exactly silly, they're just wrong. Nobody's speech is actually "chilled" by these wiretaps. And even if it were it's not the government's fault, because nobody would have even known about it if the newspapers hadn't blabbed.

Excuse me? You just said that your rights aren't being violated unless you know they are being violated. These wiretaps are clearly intended to be acted upon should the occasion arise, that is their reason for being. As such the parties must be informed or the wire taps must be ordered in the manner laid out under law. Law enforcement agencies are not above the law.

HAY can answer that, but I think what was being said was, the chilling effect complained of is that people are unable to talk to certain people in the middle east, because those people think they might be wiretapped and don't want the conversation overheard.

So the chilling effect is the result of people thinking they're being tapped.
And people wouldn't think that if the press hadn't "blabbed" about the program.

So the proper target for claims of "chilling speech" would be the press, because had they not "blabbed" the plaintiffs would be able to speak with their contacts in the middle east without difficulty.

That's not at all the same thing as saying your rights aren't violated unless you know they are. It's saying the government didn't restrict your freedom of speech, but rather the people you want to talk to don't want to talk on the phone because the press led them to believe they might be overheard by the government.


Which raises an interesting point.

To have standing, the plaintiffs had to show that they'd be talking to people of interest to FISA eavesdropping warrants. Does that give the government a basis to now apply to the FISA court for warrants to tap the plaintiffs' phones?

[umbrella]

I LOVE NSA.....I WANT THEM TO LISTEN TO ME.....LISTEN LISTEN\

\LISTEN,,LISTEN,,,,,LISTEN,,,,,,L;ISTEN,,LSLSLSLLI SISISTENS S



SLISISITNENSNTLISNELIGLS.SLALSLSDNGP


THAHK YOU.

[scrapinpeg]

Your meds are on the table, dear.

[TrainingDummy]

Yeah, calm down man. And peg, I'm still looking for a response to my post!

[umbrella]

My meds are on the table....ok, I'll take a dose. Don't answer me back.

or I'll sing like a canary.

[RoninX]

My meds are on the table....ok, I'll take a dose. Don't answer me back.

or I'll sing like a canary.

Look. Its just that nobody likes it when people use giant red font on forums. If nothing else it makes it hard to read. You are clearly passionate about certain issues. How 'bout channelling some of that passion into intelligently arguing in support of your position instead of using giant red letters?