Naughty NSA nixed by fed judge (and stupid web coding)

TERRORISM! Got your attention? It's IT Blogwatch, in which the NSA's wiretapping program is ruled unconstitutional. Not to mention the stupidest web redirect code ever...

Grant Gross explains:

A federal judge has ruled that a U.S. National Security Agency program to wiretap telephone and Internet traffic of U.S. residents is unconstitutional, illegal and must be stopped ... The program allowed the NSA to monitor communications between U.S. residents and people in other countries with suspected ties to terrorist group al Qaeda, without getting court-ordered warrants. The program, authorized by President George W. Bush in 2002 in the wake of the Sept. 11, 2001, terrorist attacks, violates the U.S. Constitution's guarantees of freedom of speech and association and its prohibitions against unreasonable searches and seizures ... violates the separation of powers clause in the Constitution ... as well as the Foreign Intelligence Surveillance Act, which set courts to issue warrants for wiretaps focused on counterintelligence.

...

Bush has defended the program as a valuable tool used to track down potential terrorists. The program is "firmly grounded in law" and only targets international phone calls in which one participant is suspected to be linked to al Qaeda ... U.S. Department of Justice said it has already appealed Taylor's order ... NSA, claiming it could not argue the case without disclosing state secrets, asked Taylor to dismiss a lawsuit brought by the American Civil Liberties Union and U.S. Islamic groups. Taylor rejected the NSA's request. The ACLU and other plaintiffs argued the NSA's program made it difficult for U.S. residents such as scholars, lawyers and journalists to communicate internationally without government monitoring.

CJ Kelly colors our world:

Help me understand this:  If the government cannot monitor conversations between suspected terrorists, then how can the government uncover plots (bombing airplanes in flight) like those recently discovered in the U.K.? ... Terrorists are not all middle Eastern.  Terrorists are twisted, tortured souls who will stop at nothing to destroy your way of life ... this really gets my goat ... If I were President and it was my responsibility to protect American citizens from terrorist, you'd better believe I would pull out all the stops to do so.  Why would any President be misdirected, arrogant or stupid about this?  Why does the Senator have to turn this debate into a personal and political attack against the current President?  Why can't he just state the facts? The facts being that we are really struggling in America to define the fine line between protecting our citizens' privacy and protecting our country's security. I wonder how they do it in other free countries ... please post your responses here.  I'm sure a little comparison wouldn't hurt any of us.

But ex-1st Amendment litigator Glenn Greenwald disagrees:

Even with this Order, the Bush administration is free to continue to do all the eavesdropping on terrorists they want to do. They just have to do so with approval of the FISA court -- just like all administrations have done since 1978, just as the law requires, and just as they did when eavesdropping as part of the surveillance they undertook on the U.K. terror plot.

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The judge was, at the very least, intent on scrutinizing, rather than blindly accepting, the Bush administration's claims. This also means, presumably, that this is now the second consecutive federal court to reject the Bush administration's invocation of the "state secrets" doctrine as a means of avoiding judicial review. This is huge news, obviously ... It is a very strong opinion in some places, weak in others, but is rather straightforward -- and sometimes eloquent -- in its almost always unequivocal rejection of the Bush administration's arguments:

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Plaintiffs ... suffering actual harm in their ability to carry out their professional duties ... warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures ... violates the plaintiffs' First Amendment rights ... the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution ... rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA ... even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions ... really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

Martin McKeay tries to help

there is nothing about Judge Diggs Taylor's ruling that is going to prevent the NSA from doing their job; they just have to start doing so in a manner that is consistent with our Constitution and the law of the land. ... I don't, not even for an instant, propose that we stop using wiretapping as a tool in the arsenal of law enforcement around the country. It's just that I want to see judicial oversight of any wiretapping that goes on, no matter who authorized it. Our government was set up with a series of checks and balances exactly to prevent the abuse of power, or potential abuse if you prefer, that we've experienced with the NSA wiretapping.

Angela Gunn nails her colors to the mast:

If anybody has a spare Medal of Freedom around, can we ship it to U.S. District Court judge Anna Diggs Taylor? Her ruling on the constitutionality of the NSA wiretaps -- in a word, FEH -- is a great and patriotic act. That's the ACLU suit; meanwhile, the EFF suit we talked about a few weeks back underwent the consolidation process and goes back to the court that's been hearing it all year. A wonderful week for the Constitution and privacy ... the decision [is] a fun read, too, as you might expect from a legal document that includes the phrase "there are no hereditary Kings in America."
Susan Crawford sums it up:

The bottom line:  There is no such thing as "inherent power" to violate the Constitution or the laws of Congress ... This may be too plain and workmanlike an opinion to survive the intellectual legerdemain of the best hired-gun appellate lawyer -- but it's right.  It's a good day for the rule of law. [Your humble blogwatcher had to look that word up]
Patterico, a prosecutor in LA County, visibly fizzles:

the NSA’s controversial surveillance program has been ruled unconstitutional by Judge Anna Diggs Taylor, an ideologue Carter-appointed judge who has a documented history of bending the rules to obtain the leftist result ... It is one of the most embarrassing pieces of garbage I have ever read. The idea that a sitting federal judge wrote such a shoddy piece of junk in a high-profile case should make even the most rabid Bush-hater squirm. The word “indisputably” is repeated again and again as a substitute for any effort at analysis or argument. The judge leaps to decide the constitutional issue ahead of the statutory one, in contravention of well-accepted principles mandating the opposite approach. She fails to perform balancing tests, or to address solid arguments for a warrant exception -- like the border search exception to the warrant requirement.
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Richi Jennings is an independent technology and marketing consultant, specializing in email, blogging, Linux, and computer security. A 20 year, cross-functional IT veteran, he is also an analyst at Ferris Research. Contact Richi at blogwatch@richi.co.uk.

Copyright © 2006 IDG Communications, Inc.

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