18/08: Three Views on ACLU v. NSA
From the New York Times editorial, "Ruling for the Law":
"...with a careful, thoroughly grounded opinion, one judge in Michigan [Judge Anna Diggs Taylor of the United States District Court in Detroit] has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them."
From the Washington POST editorial, "A Judicial Misfire":
"Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful."
"The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality. Fortunately, as this case moves forward on appeal and as other cases progress in other courts, it won't be the last word."
From Wes Pruden and the Washington TIMES, "Zeal can be good, but it's dangerous":
"Before the Corporate Republicans in the government, whose instincts are to run the government as they would a large corporation where how secrecy is enforced is nobody else's business, ride off in three directions at once to denounce the ruling they should...[think of] Janet Reno, the attorney general under Bill Clinton, [who] rankled Republicans and other conservatives with imaginative assertions of dubious federal rights (think Waco, think Elian Gonzalez) to make the jobs of cops and government bureaucrats easier. Republicans, even Corporate Republicans, would rightly scream foul if a Democratic attorney general in the mold of Ramsey Clark or Janet Reno should assert the right to flout the requirement of obtaining a warrant because it was just too much trouble.
"It's not that the government has a shortage of lawyers, or a shortage of sympathetic judges. The Foreign Intelligence Surveillance Act created a secret court where the government can apply for warrants. The court has turned down government requests only three times in 30 years, and in the present climate where nobody -- well, almost nobody -- discounts the lethal threat of Islamic fascism it's difficult to imagine the court making it difficult for the president's men to get a warrant to protect American lives. "It's not the most difficult statute to comply with," says Evan Caminker, dean of the University of Michigan Law School, "but they do have to have some reasonable belief that the person may commit a crime." No fishing without a license, you might say."
For reference: the Post news story; bg and commentary from Powerline; Judge Taylor bio; the opinion.
Other good editorials: Opinion Journal; NRO.
More to come...
"...with a careful, thoroughly grounded opinion, one judge in Michigan [Judge Anna Diggs Taylor of the United States District Court in Detroit] has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them."
From the Washington POST editorial, "A Judicial Misfire":
"Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful."
"The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality. Fortunately, as this case moves forward on appeal and as other cases progress in other courts, it won't be the last word."
From Wes Pruden and the Washington TIMES, "Zeal can be good, but it's dangerous":
"Before the Corporate Republicans in the government, whose instincts are to run the government as they would a large corporation where how secrecy is enforced is nobody else's business, ride off in three directions at once to denounce the ruling they should...[think of] Janet Reno, the attorney general under Bill Clinton, [who] rankled Republicans and other conservatives with imaginative assertions of dubious federal rights (think Waco, think Elian Gonzalez) to make the jobs of cops and government bureaucrats easier. Republicans, even Corporate Republicans, would rightly scream foul if a Democratic attorney general in the mold of Ramsey Clark or Janet Reno should assert the right to flout the requirement of obtaining a warrant because it was just too much trouble.
"It's not that the government has a shortage of lawyers, or a shortage of sympathetic judges. The Foreign Intelligence Surveillance Act created a secret court where the government can apply for warrants. The court has turned down government requests only three times in 30 years, and in the present climate where nobody -- well, almost nobody -- discounts the lethal threat of Islamic fascism it's difficult to imagine the court making it difficult for the president's men to get a warrant to protect American lives. "It's not the most difficult statute to comply with," says Evan Caminker, dean of the University of Michigan Law School, "but they do have to have some reasonable belief that the person may commit a crime." No fishing without a license, you might say."
For reference: the Post news story; bg and commentary from Powerline; Judge Taylor bio; the opinion.
Other good editorials: Opinion Journal; NRO.
More to come...
11/08: Some Perspective...
"Tocqueville" writes today:
"I'm still waiting for the first "victim" of the Patriot Act to show up. This editorial in the WSJ says it all:" 'Mass Murder' Foiled:
A terror plot is exposed by the policies many American liberals oppose.
Thanks, "Tocqueville."
I encourage you to read the relatively long editorial in its entirety, but here is a powerful excerpt:
"Meanwhile, British antiterrorism chief Peter Clarke said at a news conference that the plot was foiled because "a large number of people" had been under surveillance, with police monitoring "spending, travel and communications."
"Let's emphasize that again: The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs."
Rhetorical Shift worth marking:
The Journal also notes that yesterday George Bush referred to these evil doers publicly as "Islamic fascists," which is a departure from his usual euphemistic discourse.
The language comes in the President's lead sentence: "The recent arrests that our fellow citizens are now learning about are a stark reminder that this nation is at war with Islamic fascists who will use any means to destroy those of us who love freedom, to hurt our nation."
Here is the President's brief statement in its entirety.
Racial Profiling
The Journal also asserts:
"Another issue that should be front and center again is ethnic profiling. We'd be shocked if such profiling wasn't a factor in the selection of surveillance targets that resulted in yesterday's arrests. Here in the U.S., the arrests should be a reminder of the dangers posed by a politically correct system of searching 80-year-old airplane passengers with the same vigor as screeners search young men of Muslim origin. There is no civil right to board an airplane without extra hassle, any more than drivers in high-risk demographics have a right to the same insurance rates as a soccer mom."
The above paragraph is a bit too cliche (with the "80-year-old grandma" and "soccer mom" conventions), but it is an issue that we must deal with immediately. More on why racial profiling makes sense to me in the days to come...
"I'm still waiting for the first "victim" of the Patriot Act to show up. This editorial in the WSJ says it all:" 'Mass Murder' Foiled:
A terror plot is exposed by the policies many American liberals oppose.
Thanks, "Tocqueville."
I encourage you to read the relatively long editorial in its entirety, but here is a powerful excerpt:
"Meanwhile, British antiterrorism chief Peter Clarke said at a news conference that the plot was foiled because "a large number of people" had been under surveillance, with police monitoring "spending, travel and communications."
"Let's emphasize that again: The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs."
Rhetorical Shift worth marking:
The Journal also notes that yesterday George Bush referred to these evil doers publicly as "Islamic fascists," which is a departure from his usual euphemistic discourse.
The language comes in the President's lead sentence: "The recent arrests that our fellow citizens are now learning about are a stark reminder that this nation is at war with Islamic fascists who will use any means to destroy those of us who love freedom, to hurt our nation."
Here is the President's brief statement in its entirety.
Racial Profiling
The Journal also asserts:
"Another issue that should be front and center again is ethnic profiling. We'd be shocked if such profiling wasn't a factor in the selection of surveillance targets that resulted in yesterday's arrests. Here in the U.S., the arrests should be a reminder of the dangers posed by a politically correct system of searching 80-year-old airplane passengers with the same vigor as screeners search young men of Muslim origin. There is no civil right to board an airplane without extra hassle, any more than drivers in high-risk demographics have a right to the same insurance rates as a soccer mom."
The above paragraph is a bit too cliche (with the "80-year-old grandma" and "soccer mom" conventions), but it is an issue that we must deal with immediately. More on why racial profiling makes sense to me in the days to come...
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