"Liberal Judge Backs Dem Agenda To Weaken National Security"

That's how the Republican National Committee, the folks who run gop.com, are spinning a federal judge's decision that the National Security Agency's warrantless surveillance program is against the law (a decision which Reason wrote up under the headline "Judge to NSA: Cut It Out"). The ruling came in response to a challenge brought by the ACLU.

Among the insidous black marks on Judge Anna Diggs Taylor's record? She campaigned for Jimmy Carter in the Bicentennial Year and was appointed by the sweater-wearing downer in 1979 (the same year, it should be pointed out, that Iranians--and Ted Koppel--first took American hostage).

More here.

I'm not one to be shocked by shrill partisan politics--I'm more likely to be entertained. But does anyone really believe that if, say, a President Gore or Kerry tried pulling something like the NSA program, Republicans wouldn't be up in arms? One of the oddest features of the current moment is how conservatives and liberals/Republicans and Democrats have switched on foreign policy and many privacy/anti-government issues--hell, even state's rights to a certain degree when you factor in the Gore v. Bush and Terri Schiavo matters--without really being held accountable.

One who did: Matt Welch, in "Temporary Doves: Why are the architects of Kosovo so down on Gulf War II?"

Comments

[Eric Atkinson]

Wonder if "those people" at the ACLU would support wire tapping by the Gov. to aid in the round up of gun owners.

[B.D.]

One of the oddest features of the current moment is how conservatives and liberals/Republicans and Democrats have switched on foreign policy and many privacy/anti-government issue

Yes. Because it's more important to be in opposition - to present some sort of contrast, however dim, to the voters - than it is to stand on principles.

[AndyP]

Also, this is not unique to the current moment. Sometime around 1930 Hotelling pointed out how in a two party competition, the second mover will always stand on the opposite side of the median...close but just far enough away to be distinguishable.

[de stijl]

Eric,

Actually, I am 100% positive that they would oppose it quite vigorously as it would be a blatant violation of the Fourth Amendment if conducted without a warrent.

BTW, what the f*ck do you mean by "those people?" Is it another code phrase along the lines of "Upper West Side liberals?" Please clarify.

[Ayn_Randian]

Atkinson, that siren you hear is the hyperbole police coming to take you away. Please don't be ridiculous.

When I attended CPAC 2004 (maybe 2005), the ACLU was there as a significant presence. I wore a button of their's and got all kinds of hell "The ACLU hates my god! They want to ban him from public schools!"

They absolutely went apopletic when I didn't bat an eye and said "So what?"

[Johnny]

Eric,

The ACLU has pretty firmly stood behind the fourth amendment. They have some problems with the 1st amendment as far as religion in public sponsered by government funds, but I have never heard them waver on the fourth. And they ignore the second, which is a shame, but there IS NO REASON TO SAY WHAT YOU SAID. Expect perhaps for the fever. Get treatment for your delusions.

Nick, did you just turn this all into a slam of democrats again? Nice move.

Maybe you should call this post "Kerry would have been worse."

[John]

Eugene Volk and Orin Kerr have a very good take on this decision. It is far from clear whether it will stand up to scrutiny on appeal.
They state:

"The NSA Eavesdropping Opinion and the Fourth Amendment: The district court, in a three-page analysis ? mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case ? concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that

the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and

Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power[s]" (a term that could encompass foreign nongovernmental organizations as well as foreign governments), as oppose to activities of domestic organizations (the matter that the Keith Court stressed was at issue in that case).

For more on these two arguments, see Orin's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):

On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument ? and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, 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. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law."

[joe]

"Wonder if "those people" at the ACLU would support wire tapping by the Gov. to aid in the round up of gun owners."

Wonder if "those people" who think libertarians should vote Republican would like to change the subject.

[ein]

"hell, even state's rights to a certain degree when you factor in the Gore v. Bush and Terri Schiavo matters--without really being held accountable."

A simple rule of politics...
States rights is the manna of the minority party.

[ajay]

So, let's see. Kosovo was a short air war with no US combat casualties. It was conducted with support from the whole of Nato but without a UN resolution authorising the use of force, as a response to genocidal attacks on a civilian population, which, it later turned out, actually existed. It was successful.

Iraq is a long ground war with high (in the tens of thousands) US combat casualties. It was conducted without support from most of Nato, and without a UN resolution authorising the use of force, as a response to a WMD development program which, it later turned out, did not exist. It has so far not been successful.

Matt's right - the similarity is uncanny.

[AndyP]

Wonder if "those people" who think libertarians should vote Republican would like to change the subject.

Wonder if "those people" still exist?

[Warren]

I was a little surprised at how quickly the GOP was corrupted, and abandoned all its precepts of small government (September 9th 1997 at 3:47 in the afternoon if I recall).

With over sixty years of being the party of 'a government solution to every problem', the Democrats are only slowly embracing the 'less is more' mantra.

What we have in 2006 is pretty much uncontested agreement between the two parties that the Government should have unlimited power. Of course everything the other party does is pure distilled evil (dispute the fact that it's exactly the same as they are doing). All political discourse amongst politicians now amounts to "we need to crown the 'right' tyrant".

[zwei]

"I was a little surprised at how quickly the GOP was corrupted, and abandoned all its precepts of small government"

Yeah, that kool-aide was good.

In all honesty were they really for small government, or were they just against Democrat run big government. Republican run big government is really o.k. though.

[Akira MacKenzie]

"President Gore or Kerry tried pulling something like the NSA program, Republicans wouldn't be up in arms? "

Oh hell yes they would. I seem to remember back in the Clinton years when socialized medicince was being considered conservatives screamed that it would give government the power to riffle through our medical records at will. Not to mention their hysteria over the FBI's Carnivore program and who it was going to be used against conservatives who opposed the administration, or rumor-mongering that Clinton was going to impose martial law because of the "Y2K bug."

Remember this isn't really about national security. It never was, it never will be. It's about keeping America's swaggering jingoists on the GOP reservation while trying the scare the undecideds into not voting Democratic this November and again in 2008. If a few civil liberties have to be scrafised to keep the "libruls" out of power, so be it, we didn't really believe in them anyway.

[R C Dean]

[The Iraq war]was conducted . . . without a UN resolution authorising the use of force

This is false. The UN passed a resolution that was as explicit as the UN ever gets in terms of authorizing the use of force.

The politics then changed, and a later resolution reaffirming the first didn't pass (due mostly to opposition from the French and the Russians, who by coincidence were profiting rather nicely from Saddam's regime).

Not that it matters anyway. A UN authorization has no legal standing anyway, and UN paper in general is only worth bothering with when the roll empties out.

[Herb Schaffler]

This is exactly why I can't take the Democrats seriously over their opposition to Bush's war. If this same war was started by Gore or Clinton or Kerry, they would be all for it.

[John]

"What we have in 2006 is pretty much uncontested agreement between the two parties that the Government should have unlimited power. Of course everything the other party does is pure distilled evil (dispute the fact that it's exactly the same as they are doing). All political discourse amongst politicians now amounts to "we need to crown the 'right' tyrant".

Warren you are absolutely right. The idea that a President Gore or a President Kerry would not have done pretty much the same thing as the Patriot Act in the aftermath of 9-11 is laughable. The Patriot Act passed with something 90+ percentage support in the Congress. The same Democrats who now want to make "civil liberties" the center piece of their 06 campaign, were voting for the now "evil" Patriot Act when they thought their political hides depended on it. Make no mistake, let another major terrorist attack happen and we will get Patriot Act squared regardless of who is in power.

I of course agree with the Patriot Act, but that is besides the point. I don't agree with the Republicans who say the Democrats would give away the country to the Islamists anymore than I believe the Democrats who are convinced that Republicans are going to end the Republic. It is all just politcal prattle.

[Aresen]

John, you wrote:

"I of course agree with the Patriot Act, but that is besides the point."

I hope there is a 'don't' missing there.

[Herb Schaffler]

I don't know if Ajay is a Democrat or not, but his argument is typical of Democrats who try to point out how invading Kosovo was right and invading Iraq was wrong. I believe we had no business invading either. It just goes to show how there isn't much difference in both major parties. They both to varying degrees support the warfare-welfare state. I feel vindicated in having voted Libertarian all these years.

[John]

Aresen,

My only problem with the Patriot Act was that it didn't properly provide for military tribunals and didn't rewrite FISA. There is a don't in my statement but not for the reason that most reasonites would agree with.

[Gene Berkman]

If the federal government has the power to wiretap international communications without a warrant, then you should make sure your ISP has not outsourced Tech Support to India before you make a call to Tech Support.

If our rights end at the border, and we are living in a globalized world, then free trade might lead to less freedom.

I never thought I would be forced to make this point.

[thoreau]

Gene Berkman, that's something I never thought of before.

I wonder, if the gov't claims the right to toss aside the Bill of Rights when dealing with a non-state group, what happens when an employee of a foreign corporation is investigated for a crime?

Can they tap, without a warrant, phone calls between a US office and an office overseas? What if the content of those confidential conversations just happened to have information that would be useful for politically connected US corporations?

What if the feds have an eye on some property that you own, and you've been fighting them in court? What if you take a vacation overseas? And they claim to have caught you in your hotel room with a map showing the location of the US Consulate, some matches, one of those untraceable prepaid cell phones, and some cleaning products that could plausibly be used to make a bomb?

Just some of the implications when our rights end at the border...

[LoafingOaf]

While it may have looked like spin to someone who hasn't read the opinion but loves the result (as is apparently the case with you), it totally was fair and accurate of the GOP to characterize the ruling the way they did. It may very well be that the appellate courts should arrive at the same result (I'm agnostic for now), but this particular opinion has been met with widespread condemnation and mockery by legal scholars of all political stripes.

Here's how one law professor, political independent Ann Althouse, put it:

======
I'm truly shocked. It's like the feeling you have when you're grading blue books and you realize this one's going to have to get an F.

***

How do you ever get to the level of arrogance that keeps you from seeing when an opinion is this patently deficient? Where do you acquire the vaulting imagination that allows you think an opinion in this form will even help the side you're rushing to hand a victory to?

***

That's not analysis. That's a petulant refusal to take the task of judging seriously.... The judge is so hot to hold the President to what she sees as his constitutional obligations. You'd think she'd take a little more care to give the appearance of adhering to hers.
=====

Sometimes "GOP spin" is correct. Whether they are correct or not about the NSA program, they are indeed correct about this judge. But you leapt to say otherwise due to your own political biases. You apparently just like the result and don't care how the judge arrived at it, apparently unconcerned about a judge abusing her power.

[Xrlq]

If the federal government has the power to wiretap international communications without a warrant, then you should make sure your ISP has not outsourced Tech Support to India before you make a call to Tech Support.

Either that, or you might want to think twice before discussing your terrorist plans with your ISP's tech support guy. Then again, the same advice would apply to any business in the U.S. who informs you that your phone may be monitored or recorded "for quality purposes." Whether we're operating under FISA or the Fourth Amendment, you either have a reasonable expectation of privacy or you don't.

[Xrlq]

Among the insidous black marks on Judge Anna Diggs Taylor's record? She campaigned for Jimmy Carter in the Bicentennial Year and was appointed by the sweater-wearing downer in 1979 (the same year, it should be pointed out, that Iranians--and Ted Koppel--first took American hostage).

You neglected to mention attempting to snatch away a key affirmative action case from another judge she considered "biased" against reverse discrimination.

[joe]

"political independent Ann Althouse"

Bwah-hah-hah-hah-hah-hah-hah!!!!!!!

Loafing Oaf looked around as hard as could for a critic of the decision who isn't literally working for the RNC, and the most neutral-seeming commentator he could find to be his sock puppet is ANN FREAKING ALTHOUSE?

LOL

[joe]

Here's a link to the results of a Google search for "Ann Althouse Iraq."

http://www.google.com/search?hl=en&q=ann+althouse+Iraq&btnG=Google+Search

Wow, that's quite the "political independent" you've got there, Oaf. And you tell me she's attacking a judge who ruled against the Bush administration? And deriding her as a partisan liberal who's engaged in misconduct in doing so?

You don't say.

[whit]

there's a frigging dailykos diarist who is critizcizing this decision. it is not JUST rightwing spin. i, due to forces beyond my control, end up reading a metric assload of caselaw and court decisions. this is arguably the worst.

i'm not expecting hardcore ideologues like laurence tribe to criticize this decision

but many are, and a suprising # of them are people who are against bush's NSA program and/or think it *is* unconstitutional

that is rather telling

[LoafingOaf]

Joe: "Loafing Oaf looked around as hard as could for a critic of the decision who isn't literally working for the RNC, and the most neutral-seeming commentator he could find to be his sock puppet is ANN FREAKING ALTHOUSE?"

I grabbed excerpts from her because I had them handy and assumed that readers of a blog like Hit & Run tend to read newspapers and would be aware of the almost universal attacks being hurled at this judge from legal experts across the spectrum.

You don't have to take my word for it. Here's what the left-leaning, anti-Bush NY Times said:

Even legal experts who agreed with a federal judge's conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision's reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government's major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

"It does appear," Mr. Bashman said, "that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority."

http://www.nytimes.com/2006/08/19/washington/19ruling.html?

And if we go over to the hard Left of the Townhouse bloggers in the Cult of DailyKos, we find Glenn Greenwald conceding (on his own site and at Salon.com):

Although I agree with all of the conclusions the court reached, the opinion is horrible....

And:

[C]ommentators of every ideological stripe have quickly agreed that this opinion is argumentatively weak....

And:

[T]he judicial opinion issued yesterday is very weak, in places borderline incoherent, in its reasoning with regard to some issues. Anyone can see that. Most everyone who commented on it, including me, pointed that out.

And:

Sure, Judge Taylor's NSA opinion is poorly reasoned dreck.

I don't cite Greenwald because I consider him a worthy expert on anything. But he's an extreme Bush-hating partisan who feels strongly that the result in this holding is correct, but who points out that people of all stripes are correctly slamming this judge.

I'm sorry your failure to be up on things forced me to dig up more quotes. I could find many more but hopefully you'll concede the point that I was not being deceitful by picking Althouse's opinion and presenting it as representative of legal experts across the spectrum.

As for my characterization of her as a political independent, I do think that's the truth to anyone who regularly reads her blog, and she writes about this here:

http://althouse.blogspot.com/2005/01/right-and-left-my-sad-experience.html

Her blog is not about pushing a political agenda, and her positions on various issues do not follow a party loyalty or a loyalty to Right or Left.

Yes, she voted for Bush. When an independent votes they do have to make a choice on the ballot.

Her support for the Iraq war does not mean she's unable to be fair in assessing a judge's ruling on the NSA issue. Perhaps you noticed that one of the bigger pundits in favor of the Iraq liberation is Christopher Hitchens who also happens to be a plaintiff in the NSA case.

As for my original point of posting in this thread, I think I made a justified hit on the Hit & Run guy. I wouldn't be surprised if the GOP spin would've been similar even if the judge's opinion hadn't been "poorly reasoned dreck," but as it turned out the GOP spin is backed up by a consensus of legal experts, including those who feel the NSA program is unconstitutional.

The Hit & Run spin in this post, OTOH, looks like someone who ran to defend the judge and attack the GOP without even reading the opinion, and doesn't even present a fair representation of the GOP attacks on the judge's partisanship. Perhaps when he's done being "entertained" by those he's attacking in the GOP he'll look in the mirror.

As for me, I'd have to study the NSA issue in depth for a week before I'd claim to have anything other than a half-baked opinion, although if I have any bias it is for the Fourth Amendment.

[ajay]

RC Dean:This is false. The UN passed a resolution that was as explicit as the UN ever gets in terms of authorizing the use of force.

Liar. Did it include "all necessary means" language? 678 did to authorise the 1991 war. 1441 didn't. It warned about "serious consequences" but it didn't authorise force. When UNSC wants to authorise force, it says so. The closest it came was saying that breaches of 1441 were to be referred back to UNSC.

RC Dean:Not that it matters anyway. A UN authorization has no legal standing anyway

Liar. The UN Charter was signed by the US and ratified by Congress, making it part of US law under the Constitution. And the Charter says that Chapter VII resolutions are binding on members. Therefore US law says that Chapter VII resolutions are binding on the US government.

[Herb Schaffler]

ajay,

If the UN Charter was only ratified by Congress, it seems to me that the US Constitution would still trump it unless the states ratified it into the Constitution.