Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

Who are we? We're a married couple who has a passion for politics and current events. That's what this site is about. If you read us, you know what we stand for.

Thursday, July 5, 2007

Sixth Circuit Court Reverses NSA Decision

In 2006, Judge Anna Diggs Taylor made headlines by ruling that the NSA's Terrorist Surveillance Program was illegal and unconstitutional. The Sixth Circuit Court of Appeals slapped a stay on that decision until they could review it. Today, they issued their decision and I do hope Judge Taylor follows their instructions:

A sharply divided federal appeals court in Cincinnati handed the Bush administration's warrantless surveillance program a major legal victory today, ruling that the American Civil Liberties Union and several other plaintiffs did not have standing to challenge the program.

The 2-1 decision by the U.S. 6th Circuit Court of Appeals sent the case back to a federal trial judge in Detroit and ordered her to dismiss the case, reversing a ruling the judge had issued last year that the program was unconstitutional.

Justice Department lawyers had urged the panel to throw out the case, saying that a full-fledged review of the government initiative launched after the Sept. 11 attacks would violate the "state secrets" doctrine. Established in 1953, it bars the discovery or admission of evidence that would expose information that the government maintains would harm national security.

At oral arguments in late January, Justice Department lawyer Gregory Garre argued that without such privileged information, none of the plaintiffs could establish standing to sue.

U.S. District Judge Anna Diggs Taylor had rejected the argument, saying that three publicly acknowledged facts about the governments' surveillance program were sufficient to establish standing.

Taylor noted the government had acknowledged, after the program was disclosed in a New York Times article in 2005, that it was eavesdropping on international telephone and e-mail communications in which at least one of the parties was suspected of having ties to Al Qaeda and that the surveillance was being conducted without warrants.

Taylor also ruled that the 4th Amendment prohibition against illegal searches and seizures was an absolute rule that required the government to obtain a warrant before conducting such surveillance.

But the 6th Circuit Court ruled that the plaintiffs had failed to show that they had been individually injured by the program, and therefore did not have standing to challenge the program in court.

Judge Alice Batchelder said the plaintiffs, who also included several lawyers and writers, could not "produce any evidence that any of their own communications have ever been intercepted" by the National Security Agency under the surveillance program.

Rather, Batchelder said, the plaintiffs had asserted "a mere belief" that their overseas contacts were the types of people being targeted by the NSA and consequently they had been subjected to illegal eavesdropping, and that the surveillance had led the NSA to discover and possibly disclose privileged information.

Justice Department lawyers also argued that the program was legal. They contended that when Congress authorized the use of military force after Sept. 11, it clearly contemplated that the president could conduct counter-intelligence surveillance of the type used in the NSA program.

Garre asserted at the Jan. 31 oral argument in the 6th Circuit Court that it would be unprecedented for a U.S. court to say that a president did not have such power.

It would be unprecedented as all other court cases that have challenged the president's authority to do things like this, in the name of national security, have struck down the plaintiff's complaints. And in each case, they have cited national security concerns.

Of course the ACLU, which broght that case forward to begin with, was not happy with the decision. Senator Leahy weighed in on it, stating that he was "concerned" and "troubled" with the decision. What neither is willing to admit, and Senator Leahy should know this as he is privy to such information, is that the NSA TSP does not target American citizens. It targets overseas communications, which is under the purview of the NSA itself. And this is hardly the sort of eavesdropping that these people are making it out to be. This is more like data-mining; searching for key words, phrases, names, etc., to locate and track terrorist movements.

The Sixth Circuit Court of Appeals did it's job. They followed the law, and could not find the "harm" the plaintiffs claimed they sustained. The program is legal, as we have argued before today, and it does pass the Constitutional scrutiny of the Appeals court.



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