NSA's program unconstitutional per Fed. Dist. Judge

[Rob Graff]

http://www.cnn.com/2006/POLITICS/08/17/domesticspying.lawsuit/index.html

Some quotes:

[T]he program "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."

And the judge also held:

The president of the United States ... has undisputedly violated the Fourth in failing to procure judicial orders."

Ok, line up in your respective corners and let's get it on boys....

[OAKS]

I'm hoping I'm wrong, but the issue will probably just be forgotten after something else comes up.

[Campbell]

with all this stuff, as president what the hell do you really have to worry about. I dont think the president should go to jail, get impeached, or anything like that, but he certainly needs to be punished. How do you punish the president? Its not like censure really goes far, hes not up for reelection, and he probably wont be applying for any jobs down the road where any of it will matter. It is just crazy when you think that the president has broken the law and violated the constitution and I dont really see anything coming of it. This isn't directed at Bush so much as the nature of our government.

[Sonny]

I'm no lawyer (at least not yet). But I think it's safe to say that this decision will be appealed.

[Rob Graff]

Sonny is correct - I have no doubt it will be appealed. But in my experience, Federal District judges are very, very sharp individuals. The fact that it is appealed doesn't lessen it's effect to spur conversation.

[Sonny]

Sonny is correct - I have no doubt it will be appealed. But in my experience, Federal District judges are very, very sharp individuals. The fact that it is appealed doesn't lessen it's effect to spur conversation.

All very true. I yield to the legal scholar from the Twin Cities.

[Sonny]

Rob,

What is your take on the criticism that organizations like the ACLU can "judge-shop" for a favorable district or judge - and how that impacts our overall judicial system in the US?

In this case - the state of Michigan. I understand that this female judge was involved in the case regarding race discrimination/admissions at the Univ. of Michigan where her husband is on the board of regents. Serious conflict of interest, no?

[Sonny]

And another side question - Do non-US Citizens get the benefits of US Citizenship (i.e. the bill of rights) when they are here in this country? (legally or illegally)??

[DanGenck]

Valuing the rights of an immigrant less than the rights of a citizen is disappointing. It's like saying, "We don't value your life and values the same as an American's life and values".

I find this to be unsettling and a poor example to set.

[Sonny]

Valuing the rights of an immigrant less than the rights of a citizen is disappointing. It's like saying, "We don't value your life and values the same as an American's life and values".

I find this to be unsettling and a poor example to set.

I find it far more unsettling to apply rights and privileages of US Citizenship to non citizens. It has nothing to do with the "value of your life."

[Rob Graff]

IMHO -Judge-shopping is a myth. Venue shopping is not. And if you are not considering Venue when you are putting together your plan, you are doing your client a disservice. Thus such an allegation is basically accusing the ACLU of having competent attorneys.

You don't get to select your judge if you file a suit* - you do get to pick your venue and it is true that some venues have a particular reputation. Defense lawyers publish a list of "judicial hellholes" that are perceived to be pro-plaintiff. I can think of many venues where I've been the benefit of a pro-business jurist.

My general rule, based upon 16 years of litigating civil matters across the country is that state trial courts are slightly more plaintiff oriented, where federal district (trial) courts are disliked by most civil plaintiffs (i.e more conservative.) And with reference to Michigan, I've litigated in Fed. Dist. Ct in Michigan. And I can tell you that I had a VERY CONSERVATIVE judge in that case. Obviously there are exceptions to these general rules.


It will be fascinating to see what the appeals court does, and who hears the case. I will tell you that in my opinion, Alberto Gonzalez is over-matched by some of the legal talent the other side will muster...

*The defendant can "remove" the case to Federal court - which is historically more conservative than many state courts - if certain conditions are met. It is also true that a party in many jurisdictions can request a judge be removed. But they cannot select the replacement. But a reputation for doing this will hurt you in the long run - the judge that replaces the original will know that you asked his/her brethren struck - not a good position to be.... In a "conflict" situation a judge that is assigned a case and has a conflict will recuse him/herself before a motion need be brought.

[Campbell]

Valuing the rights of an immigrant less than the rights of a citizen is disappointing. It's like saying, "We don't value your life and values the same as an American's life and values".

I find this to be unsettling and a poor example to set.

I find it far more unsettling to apply rights and privileages of US Citizenship to non citizens. It has nothing to do with the "value of your life."

I guess it depends on how you look at our rights Sonny. Are the Bill of Rights and the Constitution just the benefits of membership in the US? Or are they paradigms of how we view human rights? To treat non citizens any differently than we do our own citizens is hypocritical. Even more so when we parade our policies all over the world while grasping a sword in the other hand.

I can see where certain rights, like the right to bear arms, the right to petition YOUR government, right to vote, and maybe some others are kind of specific to US citizenship. Take away free speech, freedom of religion, the right to a fair trial, freedom from cruel and unusual punishment, etc. and you lose the whole intent of why this country was created.

There have been occasions where the US has insisted that foreign governments return American citizens because we have felt that their legal system will not allow for a fair trial. Yet we turn around and do the exact opposite in Guantanamo. If we cant practice what we preach, how can we expect China and the newly formed governments of Iraq and Afghanistan (as examples) to change their policies on human rights or to create fair and impartial judicial systems?

[mholtz]

I have never been a big fan of the ACLU but I also believe the this is a slippery slope that we're treading down. Someone has to have checks and balances on the president or he becomes no more than a monarch, or dictator.

I know he can't create laws, but by interpriting laws in their own way and the hiding behind national security, they've managed to manipulate laws to their own means. We have to be careful with that.

[Zeuslax]

Mholtz wrote:

but by interpriting laws in their own way and the hiding behind national security, they've managed to manipulate laws to their own means. We have to be careful with that.

Exactly!!!

[Riss]

The key issue here is warranted vs warantless wiretapping. Conservative proponents of the program would have you believe that its a matter of national security vs. protecting the civil rights of suspected terrorists: not true.

No one is saying that the NSA cannot listen to suspected terrorists' phone calls. All that the constitution demands is a warrant and some oversight. Basically the president is saying that its a carefully crafted program and only used for suspected terrorists. Fine, no problem, why not let a judge oversee it? The concern is that Bush can call anyone a terrorist he wants and then listen to his phone calls without any challenge. Checks and balances is fundamental to our democracy, lets not abandon it in the false claim of national security.