King George vs Judge Taylor

Yesterday, in a ruling in the 6th Circuit, a federal judge, Anna Diggs Taylor, ruled the NSA’s eavesdropping program (TSP) illegal. Her opinion, link here, makes for interesting reading. This non-lawyer cannot pretend to understand the fine points of case law, precedent, standing, and the rest, but I, lke the judge, also have an opinion.

All of the case law seems to discuss the rights of US citizens to be protected from abuses at the hands of the government. Criminal activity, while illegal, does not allow the government, in its prosecution or investigations, to ignore the basic rights of the citizen. A presumption of innocence is paramount. No argument from this citizen.

To me, the key question should be whether or not an American citizen, or legal alien, who collaborates with a foreign terrorist organization, is guilty of a criminal act or an act of war.  This question goes directly to the issue of how our nation chooses to fight terrorism.  The Clinton administration took the view that the attacks of Al-Qaeda were criminal in nature, although I fail to understand how robbery, kidnapping, theft, et cetera equate with a para-military group bombing US facilities in foreign countries and killing US soldiers. Further, I fail to understand how the same terrorist organization can bomb and kill US citizens in this country without such actions being considered an act of war.

The Bush administration, after September 11, considered the nation to be at war with Al-Qaeda.  As such, Mr. Bush has the authority, as commander-in-chief, to conduct a war against that enemy and its allies, using the full range of powers vested in the Commander-in-Chief, as granted by the Constitution.

Are we at war, or we are combatting crime?  Should Al-Qaeda and its minions have the same rights and protections as a 4th generation Italian-American member of the Mafia, whose primary goal is to hijack trucks loaded with cargo leaving JFK airport?

Lastly, was the FISA law enacted because civil libertarians were concerned that our police were abusing their powers in criminal investigations; or was it a political reaction to presidential abuse of wiretapping aimed at political opponents?  I think the latter.

I think we are at war with an implacable enemy that does not recognize the Rule of Law, the Geneva Conventions, and will, in fact, use any technique, no matter how heinous, to do further harm to our country and our people.  In my opinion, to think otherwise is naive, short-sighted, and ultimately dangerous.

Therefore, it is the order of this Pundit that the motions of the plaintiffs be dismissed without prejudice, with the understanding that the actions of "this president" are "indisputably" legal, correct, and authorized under the Constitutution of these United States.

Under My Hand,



5 thoughts on “King George vs Judge Taylor

  1. daniel

    A sincere question: Since the operative issue here is whether or not we’re going to require warrants for international survelliance of communications between persons in the US and persons in other countries, shouldn’t you bear the burden of first proving that the Foreign Intelligence Surveillance Act of 1978 (amended in 2004 to clarify the inclusion of terrorism) is insufficient to the task?

    It might not be, but it seems to me that if it isn’t, the proper way to deal with that problem is to amend it until the system works. The President has had five years to work with his allies in Congress to achieve that solution, but chose instead to continue secretly work around the FISA. Why?

    The fact that our enemies don’t recognize the rule of law doesn’t make me want to emulate them. If anything, it makes me want to uphold those things that explicitly make us better than them. I don’t think we have to lower our standards to beat these guys.

    Anyway, this Michigan ruling doesn’t mean much. The SUPCO ruling will. My hope is that if the Michigan judge is upheld, we’ll be able to turn the debate to how to be most effective in our efforts, not over whether the President has the right ignore both explicit US law and centuries of common-law tradition on the subject of warrants.

  2. Agricola


    On the first point in your remarks, which asks me to consider first whether FISA is insufficient to the task at hand, I would simply say that FISA is a peace-time Congressional solution intended to control surveillance of political enemies by Nixon. Its purpose is to impose controls on the executive branch in its attempts to collect intelligence on foreign powers, be they state or non-state actors during peacetime. FISA did not address, nor could it, under Article II of the Constitution, the power of the Executive to act as Commander-in-Chief of the military in time of war. The administration contends that Congress authorized the use of military force against Al-Qaeda, in effect a declaration of war, and that authorization triggered the President’s ability to collect intelligence. There is no language in the AUMF restricting any power of the President afforded under the Constitution. As others have said, if Congress now thinks a state of war does not exist, terminate the AUMF and let the two branches resolve the issue.

    Let’s face it: the tension between the executive and legislative branches did not start with GWB, no matter what some want us to believe. My reading on the matter of surveillance (neither complete nor authoratative) shows that Presidents use warrantless surveillance from at least 1946 until FISA was enacted in 1978, against foreign powers working against the US, in the US, with the aid of US citizens. The zenith of this activity was Nixon’s use of such techniques against his political enemies. In the inevitable backlash, Congress, with the gentle urging of the Supreme Court, enacted FISA to control this kind of over-reach. President Carter, unable and unwilling to resist, signed the legislation. I will say again, the original intent of FISA was not to hinder or restrict in any way the powers given to the Executive under Article II.

    I do not suggest that we should stoop to the same level as our Islamo-Fascist enemies. I simply point out that they are not bound, morally, intellectually, or culturally, to act according to our accepted norms of conduct, and that we should go against them with that understanding.

    Lastly, I would urge you to research (since I cannot link to the article) situations where warrants are NOT required by civil authorities in the pursuit of their responsibilities. See National Review, dated December 20, 2005, article by Andrew C. McCarthy, wherein he lists many instances where warrantless searches are allowed.

  3. Agricola

    As an update to my comments, a copy of an email sent to Daniel:

    “For some damned reason my laptop will not allow me to access tinyurl, which I need to use in comments to provide links.

    Here is the link on permitted warrantless searches:

    Here is some more light reading on FISA: This is the meme from this link:

    “The Foreign Intelligence Surveillance Act (FISA) was first enacted in 1978 (Public Law 95-511 ) and later amended by the Patriot Act. It is at the center of the controversy concerning domestic spying by the NSA. It was passed after revelations of massive domestic spying abuses by the FBI, CIA and NSA were documented in reports issued by the Church Committee in the 1970s. In 1972 , the United States Supreme Court had reviewed some of those abuses and declared that warrantless wiretaps of domestic groups for national security reasons were a violation of the Fourth Amendment . United States v. United States District Court (Keith), 407 U.S. 297 (1972).

    I am not for one minute suggesting a backwards step in terms of our personal freedoms. On the other hand, in our war against the enemy, we should not be bound by constraints intended to safeguard our internal rights. And please do not take this to mean I condone torture.”

  4. chip

    Thought 1- learn how to use anchor tags and href and youy won’t need tinyurl.

    Thought 2- It’s SCOTUS, not SUPCO.

    Thought 3- I think the best thing that I’ve heard, and where this ruling will be overturned, is on the standing; that is, do the plaintiffs have the right to bring the case? The judge granted them standing with no basis, just to make her argument legit (so I hear, anyway, but I heard it a bunch today).


    The overly simple answer is that Judge Diggs Taylor is yet another Carter appointee. One of a President’s longest lasting legacies is the appointment of Federal Judges.


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