Today From Thinkprogress.

Yesterday, lawyers for Guantanamo Bay detainees asked a federal judge in San Francisco to invalidate the recently-passed FISA law that lets the Bush administration conduct warrantless surveillance on suspected terrorists without first getting court-approved warrants.

"We are asking your honor, as swiftly as possible, to declare this statute unconstitutional," said Michael Avery, a lawyer for the Center for Constitutional Rights. ... "Neither Congress nor the president has the power to repeal the Fourth Amendment’s warrant requirements," Avery said.

Oh boy, it's on now.

The U.S. Circuit Court of Appeals for the 6th Circuit has ordered the ACLU's lawsuit seeking to end the NSA's warrantless domestic surveillance program remanded to Judge Anna Diggs Taylor -- who had ruled the program unconstitutional in August of last year -- with instructions to dismiss the case for lack of standing.

Is the program still unconstitutional? Yes, but only in theory. Because the 6th Circuit says the ACLU didn't prove it was directly injured by the violation, and therefore has no standing to bring the suit in the first place.

Sorry, everyone!

Hope some nice censure fixes your Constitution for you!

And remember, if the subpoenas don't work, there's always the courts, right?

Right?

The community is discussing impeachment proceedings against the president and possibly vice president, and it has become evident to me that the full text of Judge Anna Diggs Taylor's ruling from this summer is not widely known.  I believe it is important to the community to have this information.  Geek that I am, I believe the full decision is breathtaking reading.  I quote the decision here, and encourage Kossacks to read it in full from the pdf link at the ACLU's site:
http://www.aclu.org/...

In the first case testing the legality of the NSA's domestic spying program since Judge Anna Diggs Taylor declared it to be both illegal and unconstitutional, the "administration" has apparently decided to take a new tack on the the question of whether or not the program violates FISA.

Whereas the "administration" previously conceded that the program appeared to be a facial violation of the statute, they nevertheless argued that it was within the president's "inherent authority" under the Constitution to order the surveillance, nonetheless.

And today?

Well, sit down.

August 15th - Boulder DA issues arrest warrant for John Karr for the murder of Jon Bonet Ramsey.

August 16th - Boulder DA begins coordinating with the Homeland Security's Immigration and Customs Enforcement to begin the process of bringing John Karr back to Boulder.

August 16th - Within two hours, the ICE leaks the information to the media and all hell breaks loose.  We have another dead blond white girl story to occupy the MSM until further notice.

August 17th - Judge Taylor rules the NSA Warrantless Wiretapping program illegal and unconstitutional.

Vice President Dick Cheney predicted Monday that a recent federal court ruling finding a warrantless surveillance program unconstitutional will be overturned on appeal..."It's hard to think of any category of information that would be more important to the safety and security of the United States...The recent ruling by a federal judge ordering an end to this program is just dead wrong. We are confident it will be reversed on appeal.

Back then, the NSA spying story had just broken -- though now we know that the New York Times had actually been sitting on the story since well before the 2004 elections. (Thanks, fellas!)

Reading that story was transformative for me. That's the moment I knew that the "I word" had to be liberated from all its fringe-y connotations, and that a serious case for this most serious Constitutional remedy could be made out.

So we came up with a way to lift the veil, and put the word back in the public eye.

Pretty soon, everybody was talking about it, if only in hushed tones.

What you might not know is what even  Bush's lawyers at the Department of Justice refused to do in that case to protect our Dear President. To find out just follow me below the fold ...

Posting at Crooks & Liars, Glenn Greenwald takes on these critics, with an assist from Lawrence Tribe:

Harvard Law Professor and constitutional scholar Laurence Tribe has written a superb e-mail to New York Times reporter Adam Liptak (in response to Liptak's front-page Times story which focused not on the decision itself or what it means for the country, but instead, on the supposed consensus of "experts" that the opinion lacked "scholarly depth" and used language that was too strident and disrespectful in condemning the President).  While Professor Tribe makes clear that he shares many of the technical, legalistic criticisms of the court's written opinion, he eloquently points out that compared to the radical law-breaking of the Bush administration -- which the court correctly ruled is without any legal justification whatsoever -- such criticisms are petty and even inconsequential.  As Tribe notes: "while her reasoning is bound not to be embraced, her bottom line [that the President broke the law and violated Americans' constitutional rights] is very likely to survive appellate review" (emphasis Greenwald's).

Greenwald continues with the Tribe letter:

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But it's those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab. . . .

When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow. Taking that tack is likely to play into the hands of the administration that was caught red-handed.

Our president broke the law. So many of the legal experts trotted out by the traditional media seem to miss that larger point, obfuscating by focusing on the judge rather than the judgment. And, by extension, shifting attention away from the fact that, as Greenwald says, "we have a President who breaks the law at will because his administration has adopted the theory that he has the power to do so. . . ." Any judge worthy of the title will be able to review the case and come to the same conclusion. It's unfortunate that legal pundits rely so heavily on administration talking points that they can't review the case on its merits.

e.g. "These secret authorization orders must, like the executive order in that case, fall.  They violate the Separation of Powers ordained by the very Constitution of which this President is a creature."(Case 06-CV-10204, Hon Anna Diggs Tayor, page 37)
BTW, this is my first post and I can't figure out why I can't get my link to work. Sorry for the annoyance. Advise would be appreciated.

*"WHEN STRUCTURE FAILS, LIBERTY IS ALWAYS IN PERIL" Justice Kennedy*

This decision[1] is virtually a one-hundred percent victory for the plaintiffs.[2]  While President Bush has already dismissed this opinion seeking solace in his hope that the 6th Circuit Court of Appeals will reverse this decision[3], Judge Taylor has written a basic civics lesson within this decision.  She explains to President Bush that the document his administration has ignored in exercising these powers, the US Constitution, is the very same document that creates the Presidency of the United States[4].

Unsurprisingly, this decision is incredibly well-written and well-researched.  The lawyering performed on behalf of the plaintiffs in this matter must be commended, as my first-year law professor, Walt Oberer, taught the most important thing a lawyer can do when arguing his case to the Court is provide the Court with an easy peg to hang their hat on.

Again! Osama's sat phone, than Plamegate, and then this.

Seems to me the argument is a distraction from the obvious, that many of our national security issues would be taken care of simply by getting rid of our primary threat to national security.  

This week's federal court ruling that declared the president's warrantless wiretapping program unconstitutional was a blow to the Bush administration and a victory for its critics. But in a reversal, it is Republicans who are highlighting the decision and Democrats who are sidestepping it. [snip]

"The Republicans are celebrating it secretly, even though it went against them," said Marshall Wittmann, a former aide to Sen. John McCain (R-Ariz.) who is now senior fellow at the center-left Progressive Policy Institute. "My guess is that Democrats won't touch it.... To embrace the decision would underscore Democratic vulnerabilities, especially the charge that they are not tough enough on national security."

From time to time, the preservation of Liberty requires that American patriots demonstrate extraordinary courage in the face of oppressive circumstances.