Idiot Judge Declares NSA Program Unconstitutional

Thursday, August 17, 2006
A Carter appointee to the federal bench orders an immediate halt to the NSA surveillance program. This lifelong Democrat couldn't be acting solely for political purposes, could she? Her bio (via Protein Wisdom) reveals the paucity of talent (other than political) that one would expect from a Carter appointee and refutation of the folk saying that 'with age comes wisdom'.

She'll be smacked down on appeal very quickly but she managed to grab a headline - which is the sole purpose in this fraudulent exercise.

Here is the opinion in all its stunning ignorance - try and follow the tortured logic involving the repudiation of the governments claim of state secrets. It gives new meaning to 'risible'.

This will be heard in the Sixth Circuit - I hope that the language used when it is overturned is commensurate with the lack of intelligence shown by this judge. She needs to stay home and nap.

Sixth Circuit

Update 12:32 MDT StY: It'll be worth following the discussion on Volokh Conspiracy

SECOND UPDATE:(3:10PM MDT) White House Response:
Statement on the Terrorist Surveillance Program

Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people. Today a federal judge in Michigan has ruled that the Terrorist Surveillance Program ordered by the President to detect and prevent terrorist attacks against the American people is unconstitutional and otherwise illegal. We couldn't disagree more with this ruling, and the Justice Department will seek an immediate stay of the opinion and appeal. Until the Court has the opportunity to rule on a stay of the Court's ruling in a hearing now set for September 7, 2006, the parties have agreed that enforcement of the ruling will be stayed.

United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives. The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government, and it is the President's most solemn duty to ensure their protection.

The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties. The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program.


David Thomson said...

More good news for Republicans. Karl Rove is having a good day. With friends like Anna Diggs Taylor, the Democrats don’t need any enemies.

David Thomson said...

Instapundit does not agree with me:

"A MAJOR DEFEAT FOR THE BUSH ADMINISTRATION in the NSA communications intercept case, as District Judge Anna Diggs Taylor finds the program unconstitutional. No doubt it will be appealed, but the Bush Administration, in its usual summer slump, doesn't need any more bad news right now.

posted at 01:46 PM by Glenn Reynolds"

We will soon find out for sure.

Knucklehead said...

This baby is 44 pages so it'll take some time to wade through. But it didn't take long to find

Each Plaintiff has alleged a "well founded belief" that he, she, or it, has been subjected to Defendants’ interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications.

I can hardly wait to discover which plaintifs (US Persons) fail to fall into the classification of "he" or "she" and require, instead, "it".

"Substantially chills" their communications, heh. What, is Mother-in-law even more frosty than usual?

Peter UK said...

"The American Civil Liberties Union filed the lawsuit 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 involves secretly taping conversations between people in the U.S. and people in other countries."

That this was brought by ACLU,goes without saying,but who on earth were these people talking to?

I have to say,that,it is dangerous for America to keep thinking of these things in political terms,"a setback for Bush" etc,resulting in eldrich exhultation by the left.This was a setback for the struggle against terrorism and a gift for the terrorists and their fellow travelers.

Morgan said...


I couldn't agree more.

Seneca the Younger said...

I can hardly wait to discover which plaintifs (US Persons) fail to fall into the classification of "he" or "she" and require, instead, "it".

Corporate ones, Knuck.

Rick Ballard said...


This is pure politics disguised as law. A stay of the order will be issued immediately and the program will continue as before. The Sixth Circuit will reverse the jerk and my bet is that the USSC will uphold the reversal by refusing to hear another appeal.

I would be unsurprised to find out that this decision was written by someone on Conyer's staff.

Knucklehead said...

Defendants’ argument with respect to Plaintiffs’ claims challenging the TSP. The court, however, agrees with Defendants with respect to Plaintiffs’
data- mining claim and grants Defendants’ motion for summary judgment on that claim.

Haven't reached the argumentation re: the "data mining" stuff but the above suggests that if the "surveillance" bit of this case is a "big defeat" for the administration that at least the "data mining" bit is a "big victory".

Then we go through the federal case law and the government's (defendent's) case for dismissal seems pretty darned strong. How does the esteemed judge turn this around for this case? Ought to be interesting...

The state secrets privilege belongs exclusively to the Executive Branch and thus, it is appropriately
invoked by the head of the Executive Branch agency with control over the secrets involved. Reynolds, 345 U.S. at 1. In the instant case, the court is satisfied that the privilege was properly invoked.

Hopefully Clarice will drop by but I read that to say that while the government's case may or may not be legally sound the executive behaved well, rather than nefariously.

In any case the stuff following that tells us the plaintifs (even "it"?) concede that the executive properly invoked the state secrets privilege. Whatever their flaws, McChimpy's brownshirts get their legal procedures done correctly!

The “next step in the judicial inquiry into the validity of the assertion of the privilege is to
determine whether the information for which the privilege is claimed qualifies as a state secret.”
El Masri, 2006 WL 1391390, at 4. Again, the court acknowledges that it has reviewed all of the
materials Defendants submitted ex parte and in camera. After reviewing these materials, the court
is convinced that the privilege applies "because a reasonable danger exists that disclosing the
information in court proceedings would harm national security interests, or would impair national
defense capabilities, disclose intelligence-gathering methods or capabilities, or disrupt diplomatic
relations with foreign governments."
Tenenbaum, 372 F.3d at 777.

I'm only 12 pages in and need to do some other stuff for a while, but so far I've got the judge who issued this "defeat" (an injunction against the NSA surveillance program) telling us that case law is in the executive's favor, that the states secret privilege was properly invoked, and that the material in question qualifies for the privilege.

It will be fun to return later to see how the Plaintif's came back and won the contest after getting clobbered 21-0 in the first quarter.

lurker said...

One poster at AJStrata says that since NSA is a military operation, Bush can continue this operation while under appeal.


terrye said...


You are right and I think that in the end the program will survive for that very reason. In fact I would not be surprised if some lawyers in DC, maybe even in the Senate, were not thinking of ways to protect this even now.

I do think that mose Americans expect the government to do these kinds of things. Despite the chill felt by some journalists, most people I know were outraged that the 9/11 hijackers were able to operate with virtual impunity right here in the US before the attack. The truth is they were safer here than almost anywhere.

But Rick is right, this judge is an idiot. No doubt the ACLU went judge shopping before they brought the case to her court.

Knucklehead said...


Nor furry or feathered critters? Darn!

terrye said...


I saw that too. I think they can continue while it is on appeal anyway.

Could "it" be the NYT?

lurker said...

" In fact I would not be surprised if some lawyers in DC, maybe even in the Senate, were not thinking of ways to protect this even now."

Arlen Specter had been thinking of a bill and I'm not thrilled about Arlen Specter getting involved with it again.

Maybe John Cornyn?

And the fact that the Senate is rather inactive and ineffective on very important issues, such as military tribunals, it would be difficult in getting a bill passed. Besides, why legalize and already legal program?

If an appeal is guaranteed with the sixth court and USSC not wanting to get involved, then this may be the best route.

Boy, I had to ask SDModerate why he never asked about this NSA terrorist surveillance program while Clinton was in the office.

Ah...macranger just reported:

"In meetings right now, but three DOJ attorney’s I talked to involved in the case are not worried. Says a lot, and an appeal has already been filed."

terrye said...


They may be a pain in the ass, but they do know how to make laws and they are Republicans. Even if the programs are legal, it does not hurt to have a law protecting them.

Hopefully. In terms of military tribunals etc I have been under the impression that they are near to a bill on this subject. But I would not be surprised if most of the people don't end up facing a court martial.

JB said...


Yeah, whatever. Again, Glenn Reynolds is not the most insightful political observer around.

Hi, we're the Democrats. We appoint judges that will let you get vaporized by Islamofascists. Turnout in droves to make sure we don't take back congress.

terrye said...


I guess it depnds on whether or not you look at just from a political perspective, in that regard I would agree with you. Glenn should have said it was a defeat for anyone serious about catching terrorists.

Knucklehead said...


Other than various hand-wringing and gnashing of teeth about how much more inconvenient airline travel would be for a while the single most common commentary I heard following the London "liguid bomb" plot stuff was along the lines of, "THAT is exactly why the government should be eavesdropping on terrorists' communications!"

I'm not the most astute political analyst in the world (I have a hard time being the most astute one in my own home) but as far as I can tell the Dems are badly misreading the public sentiment on the NSA eavesdropping program. I think I'm safely with about 60+% of My Fellow Citizens who would be downright pissed off if Uncle wasn't doing a whole lotta eavesdropping on with anyone and everyone who even twitched like a mass murdering scumbag or the horses they rode in on.

Rick Ballard said...

Glenn should consider much longer vacations. He refers to a "summer slump" that, according to Rasmussen is not occuring.

Watching the initial comments over at Volokh's confirms the assessment that this judge's claim to fame is that she gives hope to the less than mediocre.

Peter UK said...

Ah Well! Whilst the blood pressure is up, a word from The Father of the Iranian Revolution

JB said...


The sense of timing on this decision is nothing short of comical. Way to link the reality of the Jihadist threat and leftist fecklessness on national security in a voter's mind.

CF said...

I have a splitting headache and I don't think it will be improved by reading this nonsense.
Nevertheless, I am certain Rove wrote the opinion and sat on it until after the London plot was announced.

Rick Ballard said...


Proposed Republican ad:

"Scotland Yard recently foiled a plot that would have killed 4,000 British and American citizens with help from an NSA surveillance operation that Democrats claim is illegal - even unconstitutional.

The next time you hear a Democrat claim that they can "make you safer" ask them about their stand on NSA surveillance of known terrorists. Their silence speaks volumes."

If Mehlman doesn't have a similiar ad up by tomorrow night, he needs a swift kick.


My 'hope for less than the mediocre' remark goes in spades for Jimmuh. He's a very bitter old weasel. The book on the Peter Principle should have his picture on the cover.

chuck said...

...but as far as I can tell the Dems are badly misreading the public sentiment on the NSA eavesdropping program.

Replace "public" by "Democratic" and it all makes sense.

Rick Ballard said...

From a comment at Volokh's:

"After years of having the professional opportunity to read her opinions, I am not afraid to say, she may very well be the least competent, least intelligent, dimmest hack in the federal judiciary. Her opinions sometimes verge on the incoherent and at best aspire to the sub-literate. She could not construe a statute, much less a constitution, to save her life. In short, in the basic non-ideological judicial craftsmanship department, she is in my experience the worst on the federal bench."

I hope the Sixth slaps her around a bit when they overturn this farce. If the ACLU did shop this to her they got what they deserve.

Peter UK said...

In the light of the recently discovered airline death plot an now this,this isn't stupidity,it is criminal insanity.

Knucklehead said...


I'm continuing to wade through it. I am not a lawyer nor do I play one on TV. I didn't even stay at a Holiday Inn last night.

I've just begun wading into the section ruling that the plaintifs have standing which, of course, includes the little matter of demonstrating that they suffer harm in some real rather than hypothetical way and that the harm can be rectified if the judgement they seek is granted. Fine and dandy.

Plaintifs' claim that they are harmed in a real way is they can't conduct their work because their sources and clients won't talk to them electronically and they are incurring increased travel bills.

Then I hit this little tidbit in the decision (page 17-18):

Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations. In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, and must discuss confidential information over the phone and email with their international clients. All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.15 They also allege injury based on the increased financial
burden they incur in having to travel substantial distances to meet personally with their clients and
others relevant to their cases.

Holy Mother of All Chutzpah! These assholes contend that the executive branch of the US government doesn't have the right to conduct electronic surveillance of people suspected of having ties to mass murdering fascists because they have scholarly papers and magazine articles to write and it's costing them extra time and money!

And this shitferbrains judge agrees with them that this represents concrete harm!

I just got your headache.

Peter UK said...

Rick,The Judge is eighty,they won't even let you drive without a test at that age.

terrye said...

Well if they are not afraid of ending up llike Pearl I guess they could do a face to face interview. Heaven forbid some freaking reporter might be inconvenienced.

CF said...

Why do you suppose both Gonzales and the President responded today to this ruling? It's a gift to the Administration.

I have been pursuaded for years that God so loves GWB he sucks the brains out of his opponents at critical moments.

David Thomson said...

“And this shitferbrains judge agrees with them that this represents concrete harm!”

Anna Diggs Taylor speaks for a large percentage of the Democratic Party. They don’t take the war on terror seriously. It’s just a scam operation conceived by Dick Cheney and his pals in the oil industry. Do the majority of Democrats agree with these fools? Maybe not. Still, their power to intimidate the more moderate Dems must not be underestimated. Already someone like Jane Harmon is apparently capitulating to their demands.

lurker said...

NSA-Opposing Judge Engaged in Misconduct in another case by Debbie Schlussel.

After her recent ruling PLUS her judge shopping, raising her recognition and awareness, there may be new efforts in getting her impeached.

We shall see.

lurker said...

"Anna Diggs Taylor speaks for a large percentage of the Democratic Party. They don’t take the war on terror seriously. It’s just a scam operation conceived by Dick Cheney and his pals in the oil industry."

Yeah, just like Andrew Sullivan.

The appeal has been filed along with the stand on the ruling agreed upon by both parties.

That's fine and dandy but the problem is that this appeal will take a year. In the meantime, we have the elections in November. So this has given the democrats some ammunition that Bush is a lawless president, dictator, King George.

It may be wise if the appeal occurs as soon as possible and that the ruling be overturned.

Judge's ruling that was based on addressing the concerns of a terrorist physically outside USA is really bizarre.

Rick Ballard said...


The appeal will be heard September 7th. The Appeals Court will have subsided to chuckling by the 10th and the reversal will soon follow. I imagine the ACLU doofii will drag out the filing of the SCOTUS appeal until mid-October - or whenever the filing seems most politically advantageous. It doesn't really matter - the "Dems are soft on terrorism" drum is going to be beaten at the same tempo regardless.

chuck said...

Yeah, just like Andrew Sullivan.

Andrew Sullivan is a scam operation conceived by Dick Cheney and his pals in the oil industry? That explains much.

Knucklehead said...

Anna Diggs Her Tailor should be shown the door just after she's smacked upside her head wit 'er gavel.

The "professional convenience" "Academics/Scholars", "Journalists", and "Lawyers" to conduct their seditionist enterprises with legitimate terrorism suspects does not outweigh the constitutional right of the rest of We Americans to be afforded reasonable protections for lunatic, mass-murdering, fascist, moslem splodeydopes.

I've read this ruling and as far as I can tell Detroit Diggs Shitferbrains said nothing short of, "The caselaw supports the feds, the claim of 'state secret privilege' was properly made and the evidentiary materials are legitimate state secrets but that doesn't matter 'cause scholars, journalists, and lawyers have constitutional rights under the 4th and 1st amendments, to conduct their professional business in the safest and least expensive methods possible and the Executive Branch has trampled those rights."

If the 6th Circuit Court of Appeals decision says one word more than, "Anna, you ignorant slut, STFU!" I will be sorely disappointed.

Rick Ballard said...


It makes you wonder how many ballot boxes you have to stuff to get a gig like that. I've read the comment threads over at Volokh's and you can tell that the lefty legal Lilliputians are embarassed by this clown. I've made a couple passes through the decision and the lack of logic is incredible - this is a political statement made by an idiot whose voluminous robes do not mask the fact of her incompetence. I really hopes the Sixth gives her a solid smack for this, she dishonors the bench and needs to go.

lurker said...

Rick, sounds like Ronnie Earle all over again if ACLU tries to postpone it. If ACLU knows it will be overturned by the Sixth Circuit, they will try the delay tactics until after November elections.

If that is the case, then it's up to GOP to play the "soft on terrorism" card and sooner, better.

Hope Sixth Circuit sees through them and decide against postponement.

Syl said...

All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.

Then why don't the Plaintiffs sue the New York Times instead?!?!?!??!?

Yes, I know the answer. But the proximate cause of their difficulties in communication is not the government, it's Keller and Co for revealing the program and putting their contacts on alert.

Redneck Texan said...
This comment has been removed by a blog administrator.