| Topic: |
Politics > Politics-USA |
| User: |
"Harry Hope" |
| Date: |
18 Aug 2006 10:07:16 AM |
| Object: |
Judge's ruling may provide grounds to impeach Bush. |
http://www.capitolhillblue.com/artman/publish/article_9365.shtml
Judge's ruling may provide grounds to impeach Bush
By CHB Staff
Aug 18, 2006
If a judge's ruling that declares President George W. Bush's domestic
spying program unconstitutional holds up under appeal, the President
will be guilty of violating federal law at least 30 times and that
could provide grounds for impeachment, says a leading Constitutional
scholar.
Jonathan Turley, law professor at George Washington University and a
recognized expert on constitutional law, says the ruling Thursday by a
federal judge in Detroit raises "serious implications for the Bush
administration" and indicates that the President "could well have
committed a federal crime at least 30 times."
"This ruling is a bad situation that just got worse for the White
House," says Turley.
"These crimes could constitute impeachable offenses."
Turley knows a thing or two about the impeachment process.
He worked with Special Prosecutor Ken Starr on the investigation that
led to impeachment proceedings against former President Bill Clinton.
U.S. District Judge Anna Diggs Taylor, in a stinging indictment of
Constitutional abuse by the Bush Administration over its use of
warrantless wiretaps of American citizens by the National Security
Agency, ruled the program violates the Administrative Procedures Act,
the doctrine of separation of powers, and the First and Fourth
amendments to the Constitution and ordered an immediate halt to the
practice.
"There are no hereditary Kings in America and no powers not created by
the Constitution. So all 'inherent powers' must derive from that
Constitution," Taylor wrote in her lengthy opinion.
The White House went into immediate attack mode, claiming Taylor is an
activist judge appointed by a Democratic president (Jimmy Carter) and
vowing to appeal the ruling all the way to the Supreme Court.
A Republican National Committee press release declared:
Liberal judge backs Dem agenda to weaken national security.
Turley says such tactics are typical for the Bush White House.
"That's what's really distasteful," Turley said Thursday night on
MNBC's Countdown with Keith Olbermann show.
"This is not the first judge to rule against the administration.
But every time a judge rules against the administration, they're
either too Democratic or they're too tall or too short, or they're
Pisces.
I mean, it, you can, all this spin, this effort to personalize it is
really doing a great injustice to our system.
If you look at this opinion, it's a very thoughtful opinion.
The problem is not the judge.
The problem is a lack of authority.
You know, when Gonzales says I've got something back in my safe, and
if you could see it, you'd all agree with me, well, unless there's a
federal statute in his safe, then it's not going to make a
difference."
The judge's order to halt the program is stayed during the appeal
process and Attorney General Alberto Gonzales vowed the domestic
spying program will continue during those appeals, which could extend
well beyond the end of Bush's final term in office.
_____________________________________________________
I get the sneaky feeling that, at this point, the Republicans wouldn't
mind Bush's impeachment.
Harry
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| User: "Mark Fox" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
09 Sep 2006 10:55:32 PM |
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Lefty wrote:
"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157805624.289043.163980@b28g2000cwb.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157691931.720963.114470@e3g2000cwe.googlegroups.com...
Wow, Lefty.
First, thanks for responding point-by-point. Irrespective of the
fact
that I agree with very little you write, I do appreciate your
responses. I will respond in kind, and not delete anything that
you
have included in your post.
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157191004.379134.311850@m73g2000cwd.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1156813347.796765.213830@b28g2000cwb.googlegroups.com...
Lefty wrote:
Of what do you "think" the left is intolerant?
Incompetence?
Incondign smugness?
The left is intolerant of anyone who disagrees with its
weltanschauung,
its presumptions, and (where it has any) its proposals.
The right is intolerant of anyone who has the temerity to point
out
they're solipsistic, corrupt, and anti-social.
Yes, there is intolerance on the right, but in my experience, not
as
much as there is on the left. My conservative friends are more
tolerant
than are my liberal friends.
Andy Coulter.
Do you try and turn a woman into a man because you are gay and you
are
in love with her?
There's no need to give evidence of your ignorance, Fox. It's public
knowledge.
The concept must have gone soaring right over your pea sized mind once
again.
Sean Hannity. Bill O'Reilly. ***** Cheney. Rush
Limbaugh. Karl Rove. Katherine Harris. Barbara Bush. Anyone
who
equates disagreement with treason.
Speaking of treason, are you still calling for the arrest of Carl
Rove
for outing Valerie Plame during a war? I'm looking forward to
watching
the CIA put you in those plastic hand cuffs and ship you off to
gitmo.
When did I call for the arrest of Rove?
Oh please.
Why would anyone be subject to arrest for such a belief?
Its not your beliefs that get you in trouble. its your mouth.
Unfortunately, there is corruption on both sides of the aisle. It
should not be tolerated.
Absurd.
The current crop of scandals are concentrated on one side of the
aisle. That is the only reason any rightwinger will so much as
venture the lie you did is that the right is in it up to their
armpits.
LOL! This is rich. Notice the reference to "Solipsism" and
"dissociative disorder" below. Nothing could be more appropriate or
entertaining.
You should check for the cash in your freezer before you tell
amusing
lies like that.
You are such an amazing imbecile living in a little paranoid fantasy
world of your own making.
Where is your rebuttal?
One doesn't rebut stupidly vague claims such as "The current crop of
scandals ". One only needs to laugh at you for saying it.
Do you deny that numerous Republicans are involved, seperately and
together, in numerous scandals?
You are such a funny little idiot.
Typical Fox. Say nothing, then claim to have a corner on the truth.
You are whining that I have said nothing?? LOL! That's a hoot.
.
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| User: "Lefty" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
10 Sep 2006 10:12:39 AM |
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"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157860532.361917.157630@d34g2000cwd.googlegroups.com...
Lefty wrote:
"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157805624.289043.163980@b28g2000cwb.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157691931.720963.114470@e3g2000cwe.googlegroups.com...
Wow, Lefty.
First, thanks for responding point-by-point. Irrespective of
the
fact
that I agree with very little you write, I do appreciate your
responses. I will respond in kind, and not delete anything
that
you
have included in your post.
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157191004.379134.311850@m73g2000cwd.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1156813347.796765.213830@b28g2000cwb.googlegroups.com...
Lefty wrote:
Of what do you "think" the left is intolerant?
Incompetence?
Incondign smugness?
The left is intolerant of anyone who disagrees with its
weltanschauung,
its presumptions, and (where it has any) its proposals.
The right is intolerant of anyone who has the temerity to
point
out
they're solipsistic, corrupt, and anti-social.
Yes, there is intolerance on the right, but in my experience,
not
as
much as there is on the left. My conservative friends are more
tolerant
than are my liberal friends.
Andy Coulter.
Do you try and turn a woman into a man because you are gay and
you
are
in love with her?
There's no need to give evidence of your ignorance, Fox. It's
public
knowledge.
The concept must have gone soaring right over your pea sized mind
once
again.
Jesus, Fox.
As if you've ever stumped anyone.
Sean Hannity. Bill O'Reilly. ***** Cheney. Rush
Limbaugh. Karl Rove. Katherine Harris. Barbara Bush. Anyone
who
equates disagreement with treason.
Speaking of treason, are you still calling for the arrest of Carl
Rove
for outing Valerie Plame during a war? I'm looking forward to
watching
the CIA put you in those plastic hand cuffs and ship you off to
gitmo.
When did I call for the arrest of Rove?
Oh please.
Why would anyone be subject to arrest for such a belief?
Its not your beliefs that get you in trouble. its your mouth.
Unfortunately, there is corruption on both sides of the aisle.
It
should not be tolerated.
Absurd.
The current crop of scandals are concentrated on one side of the
aisle. That is the only reason any rightwinger will so much as
venture the lie you did is that the right is in it up to their
armpits.
LOL! This is rich. Notice the reference to "Solipsism" and
"dissociative disorder" below. Nothing could be more appropriate
or
entertaining.
You should check for the cash in your freezer before you tell
amusing
lies like that.
You are such an amazing imbecile living in a little paranoid
fantasy
world of your own making.
Where is your rebuttal?
One doesn't rebut stupidly vague claims such as "The current crop of
scandals ". One only needs to laugh at you for saying it.
Do you deny that numerous Republicans are involved, seperately and
together, in numerous scandals?
You are such a funny little idiot.
Typical Fox. Say nothing, then claim to have a corner on the
truth.
You are whining that I have said nothing?? LOL! That's a hoot.
.
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| User: "Mark Fox" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
10 Sep 2006 11:46:52 AM |
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Lefty wrote:
"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157860532.361917.157630@d34g2000cwd.googlegroups.com...
Lefty wrote:
"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157805624.289043.163980@b28g2000cwb.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157691931.720963.114470@e3g2000cwe.googlegroups.com...
Wow, Lefty.
First, thanks for responding point-by-point. Irrespective of
the
fact
that I agree with very little you write, I do appreciate your
responses. I will respond in kind, and not delete anything
that
you
have included in your post.
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157191004.379134.311850@m73g2000cwd.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1156813347.796765.213830@b28g2000cwb.googlegroups.com...
Lefty wrote:
Of what do you "think" the left is intolerant?
Incompetence?
Incondign smugness?
The left is intolerant of anyone who disagrees with its
weltanschauung,
its presumptions, and (where it has any) its proposals.
The right is intolerant of anyone who has the temerity to
point
out
they're solipsistic, corrupt, and anti-social.
Yes, there is intolerance on the right, but in my experience,
not
as
much as there is on the left. My conservative friends are more
tolerant
than are my liberal friends.
Andy Coulter.
Do you try and turn a woman into a man because you are gay and
you
are
in love with her?
There's no need to give evidence of your ignorance, Fox. It's
public
knowledge.
The concept must have gone soaring right over your pea sized mind
once
again.
Jesus, Fox.
Having a religious experience, are we?
As if you've ever stumped anyone.
As if!
QED.
LOL!
Where is your rebuttal?
One doesn't rebut stupidly vague claims such as "The current crop of
scandals ". One only needs to laugh at you for saying it.
You are such a funny little idiot.
.
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| User: "Lefty" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
10 Sep 2006 11:55:26 AM |
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"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157906812.832335.223920@b28g2000cwb.googlegroups.com...
Lefty wrote:
"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157860532.361917.157630@d34g2000cwd.googlegroups.com...
Lefty wrote:
"Mark Fox" <thufir_dufas.hawat@yahoo.com> wrote in message
news:1157805624.289043.163980@b28g2000cwb.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157691931.720963.114470@e3g2000cwe.googlegroups.com...
Wow, Lefty.
First, thanks for responding point-by-point. Irrespective
of
the
fact
that I agree with very little you write, I do appreciate
your
responses. I will respond in kind, and not delete anything
that
you
have included in your post.
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1157191004.379134.311850@m73g2000cwd.googlegroups.com...
Lefty wrote:
<Tolepaintingmom@yahoo.com> wrote in message
news:1156813347.796765.213830@b28g2000cwb.googlegroups.com...
Lefty wrote:
Of what do you "think" the left is intolerant?
Incompetence?
Incondign smugness?
The left is intolerant of anyone who disagrees with its
weltanschauung,
its presumptions, and (where it has any) its proposals.
The right is intolerant of anyone who has the temerity to
point
out
they're solipsistic, corrupt, and anti-social.
Yes, there is intolerance on the right, but in my
experience,
not
as
much as there is on the left. My conservative friends are
more
tolerant
than are my liberal friends.
Andy Coulter.
Do you try and turn a woman into a man because you are gay and
you
are
in love with her?
There's no need to give evidence of your ignorance, Fox. It's
public
knowledge.
The concept must have gone soaring right over your pea sized mind
once
again.
Jesus, Fox.
Having a religious experience, are we?
As if you've ever stumped anyone.
As if!
QED.
Sic demonstratum.
LOL!
Where is your rebuttal?
One doesn't rebut stupidly vague claims such as "The current crop
of
scandals ". One only needs to laugh at you for saying it.
You are such a funny little idiot.
.
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| User: "The Bonesman" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
21 Aug 2006 11:45:03 AM |
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There is lots of ground to impeach him with or without the judges ruling.
But it aint gonna happen with republican house majority. If they lose
majority after elections, you will probably see impeachment proceedings.
"Lefty" <someone@sbcglobal.net> wrote in message
news:rKjGg.16350$gY6.10733@newssvr11.news.prodigy.com...
<Tolepaintingmom@yahoo.com> wrote in message
news:1156154553.668935.11000@m73g2000cwd.googlegroups.com...
JCM wrote:
Any feeling you have is bound to be sneaky. And you're wrong. I'd
vote
for Bush again if he could run.
Yours in Christ,
Lisa Lundgren
If your sentiment is with Bush may the tens of thousands of
innocents
he's murdered get ahold of you as well in your ::ahem:: afterlife
Oh, God...Please, if You truly care for us, Your poor servants; if
our
devotions to You mean anything to You, then please, Father, grant
this
one request from a humble servant: Please let the voting public of
this
great land hear JCM's opinion and believe that he represents the
Democrat Party. And please let them vote accordingly.
You probably don't even remember how poorly your jejune view about
immigration fared here. Remember this; you have no viable ideas, just
as the crypto-fascist losers you call leaders have none. If "people"
like you have their way, the US will suffer. We will endure more
needless and counter-productive wars. We will continue to be alone in
the world, and we will fight the putative "war on terror" for
generations.
In Jesus' name,
Lisa Lundgren
Jesus was a peacemaker, not a warmonger.
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| User: "JCM" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
21 Aug 2006 01:02:31 PM |
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According to your religion, Lisa, you should just keep your mouth shut:
"The letter quoted the first epistle to Timothy: "I do not permit a
woman to teach or to have authority over a man; she must be silent." "
http://www.cnn.com/2006/US/08/21/menonly.sundayschool.ap/index.html
Now, you won't find me arguing that point .. .
Tolepaintingmom@yahoo.com wrote:
JCM wrote:
Any feeling you have is bound to be sneaky. And you're wrong. I'd vote
for Bush again if he could run.
Yours in Christ,
Lisa Lundgren
If your sentiment is with Bush may the tens of thousands of innocents
he's murdered get ahold of you as well in your ::ahem:: afterlife
Oh, God...Please, if You truly care for us, Your poor servants; if our
devotions to You mean anything to You, then please, Father, grant this
one request from a humble servant: Please let the voting public of this
great land hear JCM's opinion and believe that he represents the
Democrat Party. And please let them vote accordingly.
In Jesus' name,
Lisa Lundgren
.
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| User: "" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
02 Sep 2006 04:28:22 AM |
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JCM wrote:
According to your religion, Lisa, you should just keep your mouth shut:
"The letter quoted the first epistle to Timothy: "I do not permit a
woman to teach or to have authority over a man; she must be silent." "
http://www.cnn.com/2006/US/08/21/menonly.sundayschool.ap/index.html
Now, you won't find me arguing that point .. .
JCM, I'm so glad that your liberalism prevents you from arguing that
point! Whew! What a relief...
You know, there are those who say that the only difference between a
liberal and a communist is that the communist knows what he's doing.
Others have said that liberals are so open-minded that their brains
leak out of their heads. Still others have stated that if you're not a
liberal at age 20 you have no heart; but if you're still a liberal at
age 40 you have no brain.
Now, you won't find me arguing those points...
Yours in Christ,
Lisa Lundgren
.
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| User: "Lefty" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
02 Sep 2006 01:08:51 PM |
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<Tolepaintingmom@yahoo.com> wrote in message
news:1157189302.530144.154040@h48g2000cwc.googlegroups.com...
JCM wrote:
According to your religion, Lisa, you should just keep your mouth
shut:
"The letter quoted the first epistle to Timothy: "I do not permit a
woman to teach or to have authority over a man; she must be
silent." "
http://www.cnn.com/2006/US/08/21/menonly.sundayschool.ap/index.html
Now, you won't find me arguing that point .. .
JCM, I'm so glad that your liberalism prevents you from arguing that
point! Whew! What a relief...
You are better educated than than to commit the error above.
A small "l" liberal is a person who believes in free-market
economics - the "invisible hand" Adam Smith, etc.
A large "L" Liberal is a person, chiefly from the US, of the near
left.
You know, there are those who say that the only difference between a
liberal and a communist is that the communist knows what he's doing.
Others have said that liberals are so open-minded that their brains
leak out of their heads. Still others have stated that if you're not
a
liberal at age 20 you have no heart; but if you're still a liberal
at
age 40 you have no brain.
Now, you won't find me arguing those points...
Yours in Christ,
Lisa Lundgren
.
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| User: "Fact Attack" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
19 Aug 2006 02:09:58 AM |
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wel let's impeach Bush then re-instutitute the wiretapping program.
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| User: "Speeders & Drunk Drivers are MURDERERS" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
22 Aug 2006 01:27:40 PM |
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On Fri, 18 Aug 2006 15:07:16 GMT, Harry Hope <rivrvu@ix.netcom.com>
wrote:
http://www.capitolhillblue.com/artman/publish/article_9365.shtml
Judge's ruling may provide grounds to impeach Bush
By CHB Staff
Aug 18, 2006
If a judge's ruling that declares President George W. Bush's domestic
spying program unconstitutional holds up under appeal, the President
will be guilty of violating federal law at least 30 times and that
could provide grounds for impeachment, says a leading Constitutional
scholar.
Lying us into a war is plenty of grounds for impeachment. No need for
any more evidence of wrongdoing by bush. What's lacking is an honest
congress. They are completely bought off (both parties) and will let
bush get away with anything.
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| User: "Nostrafuckingdamus" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
19 Aug 2006 11:54:00 PM |
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Take it one thing at a time, Harry. We have to find some way to get the
Senate and House out of Republican/Diebold's hands. No easy task there.
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| User: "Bill Habr" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
19 Aug 2006 04:50:05 AM |
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The 'ruling' is all spice and no meat, it will be overturned.
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| User: "ZenIsWhen" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
19 Aug 2006 05:52:03 AM |
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"Bill Habr" <billhabr@sbcglobal.net> wrote in message
news:h9BFg.9202$%j7.575@newssvr29.news.prodigy.net...
The 'ruling' is all spice and no meat, it will be overturned.
Dream on.
.
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| User: "Bill Habr" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
19 Aug 2006 02:58:54 PM |
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Standing was granted on First Amendment grounds not Fourth Amendment
grounds, that is, the suit can proceed not because the people suing were
wiretapped but because they said that some people from overseas were afraid
to talk to them because of what was reported in the press about the program
therefore their freedom of speech was violated.
That is not Mort Sahl, George Carlin, the Onion, Scrapple Face, Saturday
Night Live or MadTV but the Judge.
"ZenIsWhen" <ZenIsWhen@MYOB.com> wrote in message
news:12edrajmk7v64b4@corp.supernews.com...
"Bill Habr" <billhabr@sbcglobal.net> wrote in message
news:h9BFg.9202$%j7.575@newssvr29.news.prodigy.net...
The 'ruling' is all spice and no meat, it will be overturned.
Dream on.
.
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| User: "Fredric L. Rice" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
20 Aug 2006 11:55:58 AM |
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"Bill Habr" <billhabr@sbcglobal.net> wrote:
The 'ruling' is all spice and no meat, it will be overturned.
Translation: The rightard traitor didn't even read it.
---
"I've stood with President Bush in the war on terrorism."
Minnesota Representative Mark Kennedy, baby killing traitor.
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| User: "Bill Habr" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
20 Aug 2006 12:49:25 PM |
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"Fredric L. Rice" <frice@skeptictank.org> wrote in message
news:12eh4rtt6l6pq9a@corp.supernews.com...
"Bill Habr" <billhabr@sbcglobal.net> wrote:
The 'ruling' is all spice and no meat, it will be overturned.
Translation: The rightard traitor didn't even read it.
I read it and moreover I understand it. It certainly is in the 10 worst
reasoned in United States history.
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| User: "Kevin Cunningham" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
20 Aug 2006 03:16:04 PM |
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"Bill Habr" <billhabr@sbcglobal.net> wrote in message
news:Fg1Gg.16599$o27.2284@newssvr21.news.prodigy.com...
"Fredric L. Rice" <frice@skeptictank.org> wrote in message
news:12eh4rtt6l6pq9a@corp.supernews.com...
"Bill Habr" <billhabr@sbcglobal.net> wrote:
The 'ruling' is all spice and no meat, it will be overturned.
Translation: The rightard traitor didn't even read it.
I read it and moreover I understand it. It certainly is in the 10 worst
reasoned in United States history.
The judge wrote a quite sharp decision. Try learning some law.
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| User: "Bill Habr" |
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| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
20 Aug 2006 05:27:48 PM |
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From the Washington Post editorial:
THE NATION would benefit from a serious, scholarly and hard-hitting judicial
examination of the National Security Agency's program of warrantless
surveillance. The program exists on ever-more uncertain legal ground; it is
at least in considerable tension with federal law and the Bill of Rights.
Careful judicial scrutiny could serve both to hold the administration
accountable and to provide firmer legal footing for such surveillance as may
be necessary for national security.
Unfortunately, the decision yesterday by a federal district court in
Detroit, striking down the NSA's program, is neither careful nor scholarly,
and it is hard-hitting only in the sense that a bludgeon is hard-hitting.
The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt
grab headlines. But as a piece of judicial work -- that is, as a guide to
what the law requires and how it either restrains or permits the NSA's
program -- her opinion will not be helpful.
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081701540.html
"Kevin Cunningham" <smskjd@mindspring.com> wrote in message
news:8q3Gg.10135$xp2.8054@newsread1.news.pas.earthlink.net...
"Bill Habr" <billhabr@sbcglobal.net> wrote in message
news:Fg1Gg.16599$o27.2284@newssvr21.news.prodigy.com...
"Fredric L. Rice" <frice@skeptictank.org> wrote in message
news:12eh4rtt6l6pq9a@corp.supernews.com...
"Bill Habr" <billhabr@sbcglobal.net> wrote:
The 'ruling' is all spice and no meat, it will be overturned.
Translation: The rightard traitor didn't even read it.
I read it and moreover I understand it. It certainly is in the 10 worst
reasoned in United States history.
The judge wrote a quite sharp decision. Try learning some law.
.
|
|
|
| User: "Bill Habr" |
|
| Title: Re: Judge's ruling may provide grounds to impeach Bush. |
20 Aug 2006 05:41:10 PM |
|
|
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 06-CV-10204
Hon. Anna Diggs Taylor
Plaintiffs,
v.
Defendants.
SOUTHERN DIVISION
AMERICAN CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; AMERICAN CIVIL
LIBERTIES UNION OF MICHIGAN;
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS; COUNCIL ON AMERICAN
ISLAMIC RELATIONS MICHIGAN;
GREENPEACE, INC.; NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS; JAMES BAMFORD; LARRY
DIAMOND; CHRISTOPHER HITCHENS;
TARA MCKELVEY; and BARNETT R. RUBIN,
NATIONAL SECURITY AGENCY / CENTRAL
SECURITY SERVICE; and LIEUTENANT
GENERAL KEITH B. ALEXANDER, in his official
capacity as Director of the National Security Agency
and Chief of the Central Security Service,
_______________________________________________________/
MEMORANDUM OPINION
I. Introduction
This is a challenge to the legality of a secret program (hereinafter "TSP")
undisputedly
inaugurated by the National Security Agency (hereinafter "NSA") at least by
2002 and continuing
today, which intercepts without benefit of warrant or other judicial
approval, prior or subsequent,
the international telephone and internet communications of numerous persons
and organizations
1
within this country. The TSP has been acknowledged by this Administration to
have been
authorized by the President's secret order during 2002 and reauthorized at
least thirty times since.1
Plaintiffs are a group of persons and organizations who, according to their
affidavits, are
defined by the Foreign Intelligence Surveillance Act (hereinafter "FISA") as
"U.S. persons."2 They
conducted regular international telephone and internet communications for
various uncontestedly
legitimate reasons including journalism, the practice of law, and
scholarship. Many of their
communications are and have been with persons in the Middle East. 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. Persons abroad who
before the program
spoke with them by telephone or internet will no longer do so.
Plaintiffs have alleged that the TSP violates their free speech and
associational rights, as
guaranteed by the First Amendment of the United States Constitution; their
privacy rights, as
guaranteed by the Fourth Amendment of the United States Constitution; the
principle of the
Separation of Powers because the TSP has been authorized by the President in
excess of his
Executive Power under Article II of the United States Constitution, and that
it specifically violates
the statutory limitations placed upon such interceptions by the Congress in
FISA because it is
conducted without observation of any of the procedures required by law,
either statutory or
Constitutional.
Before the Court now are several motions filed by both sides. Plaintiffs
have requested a
1Available at
http://www.white-house.gov//news/releases/2005/12/20051219-2.html
2Pub. L. 95-511, Title I, 92 Stat 1976 (Oct. 25, 1978), codified as amended
at 50 U.S.C. §§ 1801 et seq.
2
permanent injunction, alleging that they sustain irreparable damage because
of the continued
existence of the TSP. Plaintiffs also request a Partial Summary Judgment
holding that the TSP
violates the Administrative Procedures Act ("APA"); the Separation of Powers
doctrine; the First
and Fourth Amendments of the United States Constitution, and the statutory
law.
Defendants have moved to dismiss this lawsuit, or in the alternative for
Summary Judgment,
on the basis of the state secrets evidentiary privilege and Plaintiffs' lack
of standing.
II. State Secrets Privilege
Defendants argue that the state secrets privilege bars Plaintiffs' claims
because Plaintiffs
cannot establish standing or a prima facie case for any of their claims
without the use of state
secrets. Further, Defendants argue that they cannot defend this case without
revealing state secrets.
For the reasons articulated below, the court rejects 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.
The state secrets privilege is an evidentiary rule developed to prevent the
disclosure of
information which may be detrimental to national security. There are two
distinct lines of cases
covering the privilege. In the first line of cases the doctrine is more of a
rule of "non-justiciability
because it deprives courts of their ability to hear suits against the
Government based on covert
espionage agreements." El-Masri v. Tenet, 2006 WL 1391390 at 7 (E.D.Va.,
2006). The seminal
decision in this line of cases is Totten v. United States 92 U.S. 105
(1875). In Totten, the plaintiff
brought suit against the government seeking payment for espionage services
he had provided during
the Civil War. In affirming the dismissal of the case, Justice Field wrote:
The secrecy which such contracts impose precludes any action for
their enforcement. The publicity produced by an action would itself
3
be a breach of a contract of that kind, and thus defeat a recovery.
Totten, 92 U.S. at 107.
The Supreme Court reaffirmed Totten in Tenet v. Doe, 544 U.S. 1, (2005). In
Tenet, the
plaintiffs, who were former Cold War spies, brought estoppel and due process
claims against the
United States and the Director of the Central Intelligence Agency
(hereinafter "CIA") for the CIA's
alleged failure to provide them with the assistance it had allegedly
promised in return for their
espionage services. Tenet, 544 U.S. at 3. Relying heavily on Totten, the
Court held that the
plaintiffs claims were barred. Delivering the opinion for a unanimous Court,
Chief Justice
Rehnquist wrote:
We adhere to Totten. The state secrets privilege and the more
frequent use of in camera judicial proceedings simply cannot provide
the absolute protection we found necessary in enunciating the Totten
rule. The possibility that a suit may proceed and an espionage
relationship may be revealed, if the state secrets privilege is found not
to apply, is unacceptable: "Even a small chance that some court will
order disclosure of a source's identity could well impair intelligence
gathering and cause sources to 'close up like a clam.'" (citations
omitted). Tenet, 544 U.S. at 11.
The second line of cases deals with the exclusion of evidence because of the
state secrets
privilege. In United States v. Reynolds, 345 U.S. 1 (1953), the plaintiffs
were the widows of three
civilians who died in the crash of a B-29 aircraft. Id. at 3-4. The
plaintiffs brought suit under the
Tort Claims Act and sought the production of the Air Force's official
accident investigation report
and the statements of the three surviving crew members. Id. The Government
asserted the states
secret privilege to resist the discovery of this information, because the
aircraft in question and those
aboard were engaged in a highly secret mission of the Air Force. Id. at 4.
In discussing the state
secrets privilege and its application, Chief Justice Vinson stated:
The privilege belongs to the Government and must be asserted by it;
4
it can neither be claimed nor waived by a private party. It is not to be
lightly invoked. There must be formal claim of privilege, lodged by
the head of the department which has control over the matter, after
actual personal consideration by that officer. The court itself must
determine whether the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a disclosure of the very thing
the privilege is designed to protect. Reynolds, 345 U.S. at 8.
The Chief Justice further wrote:
In each case, the showing of necessity which is made will determine
how far the court should probe in satisfying itself that the occasion
for invoking the privilege is appropriate. Where there is a strong
showing of necessity, the claim of privilege should not be lightly
accepted, but even the most compelling necessity cannot overcome
the claim of privilege if the court is ultimately satisfied that military
secrets are at stake. Reynolds, 345 U.S. at 11.
The Court sustained the Government's claim of privilege, finding the
plaintiffs' "necessity" for the
privileged information was "greatly minimized" by the fact that the
plaintiffs had an available
alternative. Reynolds, 345 U.S. at 11. Moreover, the Court found that there
was nothing to suggest
that the privileged information had a "causal connection with the accident"
and that the plaintiffs
could "adduce the essential facts as to causation without resort to material
touching upon military
secrets." Id.
In Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (Halkin I ), the District of
Columbia Circuit
Court applied the holding in Reynolds in a case in which the plaintiffs,
Vietnam War protestors,
alleged that the defendants, former and present members of the NSA, the CIA,
Defense Intelligence
Agency, the Federal Bureau of Investigation and the Secret Service engaged
in warrantless
surveillance of their international wire, cable and telephone communications
with the cooperation
of telecommunications providers. Id. at 3. The telecommunications providers
were also named as
defendants. Id. The plaintiffs specifically challenged the legality of two
separate NSA surveillance
5
operations undertaken from 1967 to 1973 named operation MINARET and
operation SHAMROCK.3
Id. at 4.
The Government asserted the state secrets privilege and moved for dismissal
for the
following reasons: (1) discovery would "confirm the identity of individuals
or organizations whose
foreign communications were acquired by NSA"; (2) discovery would lead to
the disclosure of
"dates and contents of such communications"; or (3) discovery would "divulge
the methods and
techniques by which the communications were acquired." Halkin, 598 F.2d at
4-5. The district
court held that the plaintiffs' claims against operation MINARET had to be
dismissed "because the
ultimate issue, the fact of acquisition, could neither be admitted nor
denied." Id. at 5. The district
court, however, denied the Government's motion to dismiss the plaintiffs'
claims regarding
operation SHAMROCK, because it "thought congressional committees
investigating intelligence
matters had revealed so much information about operation SHAMROCK that such
a disclosure
would pose no threat to the NSA mission." Id. at 10.
On appeal, the District of Columbia Circuit Court affirmed the district
court's dismissal of
the plaintiffs' claims with respect to operation MINARET but reversed the
court's ruling with
respect to operation SHAMROCK. In reversing the district court ruling
regarding SHAMROCK,
the circuit court stated:
.. . . we think the affidavits and testimony establish the validity of the
state secrets claim with respect to both SHAMROCK and MINARET
acquisitions; our reasoning applies to both. There is a "reasonable
danger", (citation omitted) that confirmation or denial that a
particular plaintiff's communications have been acquired would
3Operation MINARET was part of the NSA's regular intelligence activity in
which foreign electronic
signals were monitored. Operation SHAMROCK involved the processing of all
telegraphic traffic leaving or
entering the United States. Hepting v. AT & T Corp 2006 WL 2038464
(N.D.Cal.2006) quoting Halkin.
6
disclose NSA capabilities and other valuable intelligence information
to a sophisticated intelligence analyst. Halkin, 598 F.2d at 10.
The case was remanded to the district court and it dismissed the plaintiffs'
claims against the NSA
and the individuals connected with the NSA's alleged monitoring. Halkin v.
Helms, 690 F.2d 977,
984 (D.C. Cir.1982) (Halkin II).
In Halkin II, 690 F.2d 977, the court addressed plaintiffs' remaining claims
against the CIA,
which the district court dismissed because of the state secrets privilege.
In affirming the district
court's ruling, the District of Columbia Circuit stated:
It is self-evident that the disclosures sought here pose a "reasonable
danger" to the diplomatic and military interests of the United States.
Revelation of particular instances in which foreign governments
assisted the CIA in conducting surveillance of dissidents could strain
diplomatic relations in a number of ways-by generally embarrassing
foreign governments who may wish to avoid or may even explicitly
disavow allegations of CIA or United States involvements, or by
rendering foreign governments or their officials subject to political
or legal action by those among their own citizens who may have been
subjected to surveillance in the course of dissident activity. Halkin
II, 690 F.2d at 993.
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir.1983) was yet another case where
the District
of Columbia Circuit dealt with the state secrets privilege being raised in
the defense of a claim of
illegal wiretapping. In Ellsberg, the plaintiffs, the defendants and
attorneys in the "Pentagon
Papers" criminal prosecution brought suit when, during the course of that
litigation, they discovered
"that one or more of them had been the subject of warrantless electronic
surveillance by the federal
Government." Id. at 51. The defendants admitted to two wiretaps but refused
to respond to some
of the plaintiffs' interrogatories, asserting the state secrets privilege.
Id. at 54. The plaintiffs sought
an order compelling the information and the district court denied the
motion, sustaining the
Government's assertion of the state secrets privilege. Id. at 56. Further,
the court dismissed the
7
plaintiffs' claims that pertained "to surveillance of their foreign
communications." Ellsberg v.
Mitchell, 709 F.2d at 56.
On appeal, the District of Columbia Circuit reversed the district court with
respect to the
plaintiffs' claims regarding the Government's admitted wiretaps, because
there was no reason to
"suspend the general rule that the burden is on those seeking an exemption
from the Fourth
Amendment warrant requirement to show the need for it." Ellsberg, 709 F.2d
at 68. With respect
to the application of the state secrets privilege, the court stated:
When properly invoked, the state secrets privilege is absolute. No
competing public or private interest can be advanced to compel
disclosure of information found to be protected by a claim of
privilege. However, because of the broad sweep of the privilege, the
Supreme Court has made clear that "[i]t is not to be lightly invoked."
Thus, the privilege may not be used to shield any material not strictly
necessary to prevent injury to national security; and, whenever
possible, sensitive information must be disentangled from
nonsensitive information to allow for the release of the latter.
Ellsberg, 709 F.2d at 56.
In Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998), the plaintiffs, former
employees at a
classified United States Air Force facility, filed suit against the Air
Force and the Environmental
Protection Agency under the Resource Conservation and Recovery Act, alleging
violations at the
classified facility. Id. at 1162. The district court granted summary
judgment against the plaintiffs,
because discovery of information necessary for the proof of the plaintiffs'
claims was impossible
due to the state secrets privilege. Id. In affirming the district court's
grant of summary judgment
against one of the plaintiffs, the Ninth Circuit stated:
Not only does the state secrets privilege bar [the plaintiff] from
establishing her prima facie case on any of her eleven claims, but any
further proceeding in this matter would jeopardize national security.
No protective procedure can salvage [the plaintiff's] suit. Kasza, 133
F.3d at 1170.
8
The Kasza court also explained that "[t]he application of the state secrets
privilege can have
.. . . three effects." Kasza, 133 F.3d at 1166. First, when the privilege is
properly invoked "over
particular evidence, the evidence is completely removed from the case." Id.
The plaintiff's case,
however, may proceed "based on evidence not covered by the privilege." Id.
"If . . . the plaintiff
cannot prove the prima facie elements of her claim with nonprivileged
evidence, then the court may
dismiss her claim as it would with any plaintiff who cannot prove her case."
Id. Second, summary
judgement may be granted, "if the privilege deprives the defendant of
information that would
otherwise give the defendant a valid defense to the claim." Id. Lastly,
"notwithstanding the
plaintiff's ability to produce nonprivileged evidence, if the 'very subject
matter of the action' is a
state secret, then the court should dismiss the plaintiff's action based
solely on the invocation of the
state secrets privilege." Id.
The Sixth Circuit delivered its definitive opinion regarding the states
secrets privilege, in
Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004). In that case, the
plaintiffs sued the United
States and various employees of federal agencies, alleging that the
defendants engaged in criminal
espionage investigation of the plaintiff, David Tenenbaum, because he was
Jewish. Id. at 777. The
defendants moved for summary judgment, arguing that they could not defend
themselves against the
plaintiffs' "claims without disclosing information protected by the state
secrets doctrine." Id. The
district court granted the defendants' motion and the Sixth Circuit affirmed
stating:
We further conclude that Defendants cannot defend their conduct
with respect to Tenenbaum without revealing the privileged
information. Because the state secrets doctrine thus deprives
Defendants of a valid defense to the Tenenbaums' claims, we find
that the district court properly dismissed the claims. Tenenbaum, 372
F.3d at 777.
Predictably, the War on Terror of this administration has produced a vast
number of cases,
9
in which the state secrets privilege has been invoked.4 In May of this year,
a district court in the
Eastern District of Virginia addressed the state secrets privilege in
El-Masri v. Tenet, 2006 WL
1391390, (E.D. Va. May 12, 2006). In El Masri, the plaintiff, a German
citizen of Lebanese
descent, sued the former director of the CIA and others, for their alleged
involvement in a program
called Extraordinary Rendition. Id. at 1. The court dismissed the plaintiff'
s claims, because they
could not be fairly litigated without the disclosure of state secrets.5 Id.
at 6.
In Hepting v. AT & T Corp., 2006 WL 2038464, (E.D. Cal. June 20, 2006),
which is akin to
our inquiry in the instant case, the plaintiffs brought suit, alleging that
AT & T Corporation was
collaborating with the NSA in a warrantless surveillance program, which
illegally tracked the
domestic and foreign communications and communication records of millions of
Americans. Id.
at 1. The United States intervened and moved that the case be dismissed
based on the state secrets
privilege. Id. Before applying the privilege to the plaintiffs' claims, the
court first examined the
information that had already been exposed to the public, which is
essentially the same information
that has been revealed in the instant case. District Court Judge Vaughn
Walker found that the
Government had admitted:
.. . . it monitors "contents of communications where * * * one party
to the communication is outside the United States and the
government has a reasonable basis to conclude that one party to the
communication is a member of al Qaeda, affiliated with al Qaeda, or
a member of an organization affiliated with al Qaeda, or working in
support of al Qaeda." (citations omitted). Hepting, 2006 WL
4In Terkel v. AT & T Corp., 2006 WL 2088202 (N.D. Ill. July 25, 2006), the
plaintiffs alleged that AT&T
provided information regarding their telephone calls and internet
communications to the NSA. Id. at 1. District
Court Judge Matthew F. Kennely dismissed the case because the state secrets
privilege made it impossible for the
plaintiffs to establish standing. Id. at 20.
5Further, the court was not persuaded by the plaintiff's argument that the
privilege was negated because the
Government had admitted that the rendition program existed because it found
the Government's admissions to be
without details.
10
2038464, at 19.
Accordingly Judge Walker reasoned that "[b]ased on these public
disclosures," the court could not
"conclude that the existence of a certification regarding the 'communication
content' program is a
state secret." Id.
Defendants' assertion of the privilege without any request for answers to
any discovery has
prompted this court to first analyze this case under Totten/Tenet, since it
appears that Defendants
are arguing that this case should not be subject to judicial review. As
discussed supra, the
Totten/Tenet cases provide an absolute bar to any kind of judicial review.
Tenet, 544 U.S. at 8. This
rule should not be applied in the instant case, however, since the rule
applies to actions where there
is a secret espionage relationship between the Plaintiff and the Government.
Id. at 7-8. It is
undisputed that Plaintiffs' do not claim to be parties to a secret espionage
relationship with
Defendants. Accordingly, the court finds the Totten/Tenet rule is not
applicable to the instant case.
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. Defendants' publicly-filed affidavits from Director of National
Intelligence John D.
Negroponte and Signal Intelligence Director, NSA Major General Richard J.
Quirk, set forth facts
supporting the Government's contention that the state secrets privilege and
other legal doctrines
required dismissal of the case. Additionally, Defendants filed classified
versions of these
declarations ex parte and in camera for this court's review. Defendants also
filed ex parte and in
camera versions of its brief along with other classified materials, further
buttressing its assertion of
the privilege. Plaintiffs concede that the public declaration from Director
Negroponte satisfies the
11
procedural requirements set forth in Reynolds. Therefore, this court
concludes that the privilege has
been appropriately invoked.
Defendants argue that Plaintiffs' claims must be dismissed because
Plaintiffs cannot establish
standing or a prima facie case for any of its claims without the disclosure
of state secrets. Moreover,
Defendants argue that even if Plaintiffs are able to establish a prima facie
case without revealing
protected information, Defendants would be unable to defend this case
without the disclosure of
such information. Plaintiffs argue that Defendants' invocation of the state
secrets privilege is
improper with respect to their challenges to the TSP, since no additional
facts are necessary or
relevant to the summary adjudication of this case. Alternatively, Plaintiffs
argue, that even if the
court finds that the privilege was appropriately asserted, the court should
use creativity and care to
devise methods which would protect the privilege but allow the case to
proceed.
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.
Plaintiffs, however, maintain that this information is not relevant to the
resolution of their
claims, since their claims regarding the TSP are based solely on what
Defendants have publicly
admitted. Indeed, although the instant case appears factually similar to
Halkin, in that they both
12
involve plaintiffs challenging the legality of warrantless wiretapping, a
key distinction can be drawn.
Unlike Halkin or any of the cases in the Reynolds progeny, Plaintiffs here
are not seeking any
additional discovery to establish their claims challenging the TSP.6
Like Judge Walker in Hepting, this court recognizes that simply because a
factual statement
has been made public it does not necessarily follow that it is true.
Hepting, 2006 WL 2038464 at
12. Hence, "in determining whether a factual statement is a secret, the
court considers only public
admissions or denials by the [G]overnment." Id. at 13. It is undisputed that
Defendants have
publicly admitted to the following: (1) the TSP exists; (2) it operates
without warrants; (3) it targets
communications where one party to the communication is outside the United
States, and the
government has a reasonable basis to conclude that one party to the
communication is a member of
al Qaeda, affiliated with al Qaeda, or a member of an organization
affiliated with al Qaeda, or
working in support of al Qaeda. As the Government has on many occasions
confirmed the veracity
of these allegations, the state secrets privilege does not apply to this
information.
Contrary to Defendants' arguments, the court is persuaded that Plaintiffs
are able to establish
a prima facie case based solely on Defendants' public admissions regarding
the TSP. Plaintiffs'
declarations establish that their communications would be monitored under
the TSP.7 Further,
Plaintiffs have shown that because of the existence of the TSP, they have
suffered a real and
concrete harm. Plaintiffs' declarations state undisputedly that they are
stifled in their ability to
6In Halkin, the plaintiffs were requesting that the Government answer
interrogatories and sought to depose
the secretary of defense. Halkin, 598 F.2d at 6.
7See generally, in a Declaration, attorney Nancy Hollander stated that she
frequently engages in
international communications with individuals who have alleged connections
with terrorist organizations. (Exh. J,
Hollander ). Attorney William Swor also provided a similar declaration.
(Exh. L, Swor Decl. ). Journalist Tara
McKelvey declared that she has international communications with sources who
are suspected of helping the
insurgents in Iraq. (Exh. K, McKelvey Decl.).
13
vigorously conduct research, interact with sources, talk with clients and,
in the case of the attorney
Plaintiffs, uphold their oath of providing effective and ethical
representation of their clients.8 In
addition, Plaintiffs have the additional injury of incurring substantial
travel expenses as a result of
having to travel and meet with clients and others relevant to their cases.
Therefore, the court finds
that Plaintiffs need no additional facts to establish a prima facie case for
any of their claims
questioning the legality of the TSP.
The court, however, is convinced that Plaintiffs cannot establish a prima
facie case to support
their data- mining claims without the use of privileged information and
further litigation of this issue
would force the disclosure of the very thing the privilege is designed to
protect. Therefore, the
court grants Defendants' motion for summary judgment with respect to this
claim.
Finally, Defendants assert that they cannot defend this case without the
exposure of state
secrets. This court disagrees. The Bush Administration has repeatedly told
the general public that
there is a valid basis in law for the TSP.9 Further, Defendants have
contended that the President has
the authority under the AUMF and the Constitution to authorize the continued
use of the TSP.
Defendants have supported these arguments without revealing or relying on
any classified
information. Indeed, the court has reviewed the classified information and
is of the opinion that this
information is not necessary to any viable defense to the TSP. Defendants
have presented support
8Plaintiffs' Statement of Undisputed Facts (hereinafter "SUF") SUF 15 (Exh.
J, Hollander Decl. 12, 16,
25; Exh. L, Swor Decl. 9, 11-12, 14-16);Plaintiffs;' Reply Memorandum in
Support of Plaintiffs' Motion for
Partial Summary Judgment (hereinafter "Pl.'s Reply") (Exh. P, Dratel Decl.
9-11; Exh. Q, Abdrabboh Decl.
7-8; Exh. R. Ayad. Decl. 4, 6-8); (Exh. M Niehoff Decl. 12 ).
9On December 17, 2005, in a radio address, President Bush stated:
In the weeks following the terrorist attacks on our nation, I authorized the
National Security Agency, consistent with U.S. law and the Constitution, to
intercept the international communications of people with known links to al
Qaeda and related terrorist organizations.
http://www.whitehouse.gov/news/releases/2005/12/20051217.html
14
for the argument that "it . . is well-established that the President may
exercise his statutory and
constitutional authority to gather intelligence information about foreign
enemies."10 Defendants cite
to various sources to support this position. Consequently, the court finds
Defendants' argument that
they cannot defend this case without the use of classified information to be
disingenuous and without
merit.
In sum, the court holds that the state secrets privilege applies to
Plaintiffs' data-mining claim
and that claim is dismissed. The privilege, however, does not apply to
Plaintiffs' remaining claims
challenging the validity of the TSP, since Plaintiffs are not relying on or
requesting any classified
information to support these claims and Defendants do not need any
classified information to mount
a defense against these claims.11
III. Standing
Defendants argue that Plaintiffs do not establish their standing. They
contend that Plaintiffs'
claim here is merely a subjective fear of surveillance which falls short of
the type of injury necessary
to establish standing. They argue that Plaintiffs' alleged injuries are too
tenuous to be recognized,
not "distinct and palpable" nor "concrete and particularized."
Article III of the U.S. Constitution limits the federal court's jurisdiction
to "cases" and
"controversies". Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
To have a genuine case
or controversy, the plaintiff must establish standing. "[T]he core component
of standing is an
essential and unchanging part of the case-or-controversy requirement of
Article III." Lujan v.
10Defendants' Brief in Support of Summary Judgment pg. 33.
11Defendants also contend that Plaintiffs' claims are barred because they
properly invoked statutory
privileges under the National Security Agency Act of 1959, 50 U.S.C. § 402
and the Intelligence Reform and
Terrorism Prevention Act of 2004, 50 U.S.C. § 403-(i)(1). Again, these
privileges are not availing to Defendants
with respect to Plaintiffs' claims challenging the TSP, for the same reasons
that the state secrets privilege does not
bar these claims.
15
Defenders of Wildlife, 504 U.S. at 560. To establish standing under Article
III, a plaintiff must
satisfy the following three requirements: (1) "the plaintiff must have
suffered an injury in fact - an
invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or
imminent, not conjectural or hypothetical"; (2) "there must be a causal
connection between the
injury and the conduct complained of", and (3) "it must be likely, as
opposed to merely speculative,
that the injury will be redressed by a favorable decision." Id. at 560-561.
The party invoking
federal jurisdiction bears the burden of establishing these elements. Id. at
561.
"An association has standing to bring suit on behalf of its members when its
members would
otherwise have standing to sue in their own right, the interests it seeks to
protect are germane to the
organization's purpose, and neither the claim asserted nor the relief
requested requires the
participation of individual members in the lawsuit." Friends of the Earth,
Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v.
Washington State
Apple Advertising Comm'n, 432 U.S. 333, 342 (1977)).
"At the pleading stage, general factual allegations of injury resulting from
the defendant's
conduct may suffice, for on a motion to dismiss we 'presume that general
allegations embrace those
specific facts that are necessary to support the claim.' " Id. at 561
(quoting Lujan v. National
Wildlife Federation, 497 U.S. 871, 889 (1990)). "In response to a motion for
summary judgment,
however, the plaintiff can no longer rest upon such 'mere allegations,' but
must 'set forth' by
affidavit or other evidence 'specific facts' Fed.R.Civ.Proc. 56(e), which
for purposes of the summary
judgment motion will be taken to be true." Id. This court is persuaded that
Plaintiffs in this case
have set forth the necessary facts to have satisfied all three of the
prerequisites listed above to
establish standing.
16
To determine whether Plaintiffs have standing to challenge the
constitutionality of the TSP,
we must examine the nature of the injury-in-fact which they have alleged.
"The injury must be ...
'distinct and palpable,' and not 'abstract' or 'conjectural' or
'hypothetical.'" National Rifle
Association of America v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997) (citing
Allen v. Wright, 468 U.S
737, 751 (1982)).
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.12 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,13 and must discuss confidential
information over the phone
and email with their international clients.14 All of the Plaintiffs contend
that the TSP has caused
clients, witnesses and sources to discontinue their communications with
plaintiffs out of fear that
12SUF 15B (Exh. I, Diamond Decl. 9; Exh. K, McKelvey Decl. 8-10).
13SUF 15B (Exh. J, Hollander Decl. 12-14, 17-24; Exh. L, Swor Decl. 5-7,
10);Pl.'s Reply ( Exh. M,
Dratel Decl. 5-6; Exh. Q, Abdrabboh Decl. 3-4; Exh. R, Ayad Decl. 5, 7-9).
14SUF 15 (Exh. J, Hollander Decl. 12, 16, 25; Exh. L, Swor Decl. 9, 11-12,
14-16); Pl.'s Reply (Exh.
P, Dratel Decl. 5-6; Exh. Q, Abdrabboh Decl. 3-4; Exh. R, Ayad Decl. 6-7).
17
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.16
The ability to communicate confidentially is an indispensable part of the
attorney-client
relationship. As University of Michigan legal ethics professor Leonard
Niehoff explains, attorneyclient
confidentiality is "central to the functioning of the attorney-client
relationship and to effective
representation."17 He further explains that Defendants' TSP "creates an
overwhelming, if not
insurmountable, obstacle to effective and ethical representation" and that
although Plaintiffs are
resorting to other "inefficient" means for gathering information, the TSP
continues to cause
"substantial and ongoing harm to the attorney-client relationships and legal
representations."18 He
explains that the increased risk that privileged communications will be
intercepted forces attorneys
to cease telephonic and electronic communications with clients to fulfill
their ethical
responsibilities.19
Defendants argue that the allegations present no more than a "chilling
effect" based upon
purely speculative fears that the TSP subjects the Plaintiffs to
surveillance. In arguing that the
injuries are not constitutionally cognizable, Defendants rely heavily on the
case of Laird v. Tatum,
408 U.S. 1 (1972).
15SUF 15 (Exh. J, Hollander Decl. 12, 16, 25; Exh. L, Swor Decl. 9, 11-12,
14-16);Pl.'s Reply (Exh. P,
Dratel Decl. 9-11; Exh. Q, Abdrabboh Decl. 7-8; Exh. R. Ayad. Decl. 4,
6-8).
16SUF 15 (Exh. J, Hollander Decl. 20, 23-25; Exh. L, Swor Decl. 13-14); Pl.'
s Reply (Exh. P, Dratel
Decl. 9-11; Exh. Q, Abdrabboh Decl. 7-8; Exh. R, Ayad Decl. 6-8).
17Pl.'s Reply (Exh. M Niehoff Decl. 12 )
18Pl.'s Reply (Exh. M Niehoff Decl. 19-20 )
19Pl.'s Reply (Exh. M Niehoff Decl. 15-20 )
18
In Laird, the plaintiffs sought declaratory and injunctive relief on their
claim that their rights
were being invaded by the Army's domestic surveillance of civil disturbances
and "public activities
that were thought to have at least some potential for civil disorder." Id.
at 6. The plaintiffs argued
that the surveillance created a chilling effect on their First Amendment
rights caused by the
existence and operation of the surveillance program in general. Id. at 3.
The Supreme Court
rejected the plaintiffs' efforts to rest standing upon the mere "chill" that
the program cast upon their
associational activities. It said that the "jurisdiction of a federal court
may [not] be invoked by a
complainant who alleges that the exercise of his First Amendment rights is
being chilled by the mere
existence, without more, of a governmental investigative and data-gathering
activity." Id. (emphasis
added)
Laird, however, must be distinguished here. The plaintiffs in Laird alleged
only that they
could conceivably become subject to the Army's domestic surveillance
program. Presbyterian
Church v. United States, 870 F.2d 518, 522 (1989) (citing Laird v. Tatum,
408 U.S at 13) (emphasis
added). The Plaintiffs here are not merely alleging that they "could
conceivably" become subject
to surveillance under the TSP, but that continuation of the TSP has damaged
them. The President
indeed has publicly acknowledged that the types of calls Plaintiffs are
making are the types of
conversations that would be subject to the TSP.20
Although Laird establishes that a party's allegation that it has suffered a
subjective "chill"
alone does not confer Article III standing, Laird does not control this
case. As Justice (then Judge)
20In December 2005, the President publicly acknowledged that the TSP
intercepts the contents of certain
communications as to which there are reasonable grounds to believe that (1)
the communication originated or
terminated outside the United States, and (2) a party to such communication
is a member of al Qaeda, a member of a
group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates.
Available at http://www.whitehouse.
gov//news/releases/2005/12/20051219-2.html.
19
Breyer has observed, "[t]he problem for the government with Laird . . . lies
in the key words
'without more.'" Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984). This
court agrees with
Plaintiffs' position that "standing here does not rest on the TSP's 'mere
existence, without more.'"
The Plaintiffs in this case are not claiming simply that the Defendants'
surveillance has "chilled"
them from making international calls to sources and clients. Rather, they
claim that Defendants'
surveillance has chilled their sources, clients, and potential witnesses
from communicating with
them. The alleged effect on Plaintiffs is a concrete, actual inability to
communicate with witnesses,
sources, clients and others without great expense which has significantly
crippled Plaintiffs, at a
minimum, in their ability to report the news and competently and effectively
represent their clients.
See Presbyterian Church v. United States, 870 F.2d 518 (1989) (church
suffered substantial decrease
in attendance and participation of individual congregants as a result of
governmental surveillance).
Plaintiffs have suffered actual concrete injuries to their abilities to
carry out their professional
responsibilities. The direct injury and objective chill incurred by
Plaintiffs are more than sufficient
to place this case outside the limitations imposed by Laird.
The instant case is more akin to Friends of the Earth, in which the Court
granted standing
to environmental groups who sued a polluter under the Clean Water Act
because environmental
damage caused by the defendant had deterred members of the plaintiff
organizations from using and
enjoying certain lands and rivers. Friends of the Earth, 528 U.S. at
181-183. The Court there held
that the affidavits and testimony presented by plaintiffs were sufficient to
establish reasonable
concerns about the effects of those discharges and were more than "general
averments" and
"conclusory allegations." Friends of the Earth, 528 U.S. at 183-184. The
court distinguished the
case from Lujan, in which the Court had held that no actual injury had been
established where
20
plaintiffs merely indicated "'some day' intentions to visit endangered
species around the world."
Friends of the Earth, 528 U.S. at 184 (quoting Lujan, 504 U.S. at 564). The
court found that the
affiants' conditional statements that they would use the nearby river for
recreation if defendant were
not discharging pollutants into it was sufficient to establish a concrete
injury. Id. at 184.
Here, Plaintiffs are not asserting speculative allegations. Instead, the
declarations asserted
by Plaintiffs establish that they are suffering a present concrete injury in
addition to a chill of their
First Amendment rights. Plaintiffs would be able to continue using the
telephone and email in the
execution of their professional responsibilities if the Defendants were not
undisputedly and
admittedly conducting warrantless wiretaps of conversations. As in Friends
of the Earth, this
damage to their interest is sufficient to establish a concrete injury.
Numerous cases have granted standing where the plaintiffs have suffered
concrete
profession-related injuries comparable to those suffered by Plaintiffs here.
For example, the First
Circuit conferred standing upon claimants who challenged an executive order
which required
applicants for employment with the World Health Organization to undergo a
"loyalty" check that
included an investigation into the applicant's associations and activities.
The court there determined
that such an investigation would have a chilling effect on what an applicant
says or does, a sufficient
injury to confer standing. Ozonoff, 744 F.2d at 228-229. Similarly, the
District of Columbia Circuit
Court of Appeals granted standing to a reshelver of books at the Library of
Congress who was
subjected to a full field FBI investigation which included an inquiry into
his political beliefs and
associations and subsequently resulted in his being denied a promotion or
any additional
employment opportunities; the court having determined that plaintiff had
suffered a present
objective harm, as well as an objective chill of his First Amendment rights
and not merely a
21
potential subjective chill as in Laird. Also, the Supreme Court in
Presbyterian Church v. United
States, granted standing to a church which suffered decreased attendance and
participation when the
government actually entered the church to conduct surveillance. Presbyterian
Church, 870 F.2d
at 522. Lastly, in Jabara v. Kelley, 476 F.Supp. 561 (E.D. Mich. 1979), vac'
d on other grounds
sub. nom. Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982), the court held
that an attorney had
standing to sue to enjoin unlawful FBI and NSA surveillance which had
deterred others from
associating with him and caused "injury to his reputation and legal
business." Id. at 568.
These cases constitute acknowledgment that substantial burdens upon a
plaintiff's
professional activities are an injury sufficient to support standing.
Defendants ignore the significant,
concrete injuries which Plaintiffs continue to experience from Defendants'
illegal monitoring of
their telephone conversations and email communications. Plaintiffs
undeniably have cited to
distinct, palpable, and substantial injuries that have resulted from the
TSP.
This court finds that the injuries alleged by Plaintiffs are "concrete and
particularized", and
not "abstract or conjectural." The TSP is not hypothetical, it is an actual
surveillance program that
was admittedly instituted after September 11, 2001, and has been
reauthorized by the President more
than thirty times since the attacks.21 The President has, moreover,
emphasized that he intends to
continue to reauthorize the TSP indefinitely.22 Further, the court need not
speculate upon the kind
of activity the Plaintiffs want to engage in - they want to engage in
conversations with individuals
abroad without fear that their First Amendment rights are being infringed
upon. Therefore, this
court concludes that Plaintiffs have satisfied the requirement of alleging
"actual or threatened
21Available at
http://www.white-house.gov//news/releases/2005/12/20051219-2.html
22Id.
22
injury" as a result of Defendants' conduct.
It must now be determined whether Plaintiffs have shown that there is a
causal connection
between the injury and the complained of conduct. Lujan, 504 U.S. at
560-561. The causal
connection between the injury and the conduct complained of is fairly
traceable to the challenged
action of Defendants. The TSP admittedly targets communications originated
or terminated outside
the United States where a party to such communication is in the estimation
of Defendants, a member
of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al
Qaeda or its affiliates.23
The injury to the Plaintiffs stems directly from the TSP and their injuries
can unequivocally be
traced to the TSP.
Finally, it is likely that the injury will be redressed by the requested
relief. A determination
by this court that the TSP is unconstitutional and a further determination
which enjoins Defendants
from continued warrantless wiretapping in contravention of FISA would assure
Plaintiffs and others
that they could freely engage in conversations and correspond via email
without concern, at least
without notice, that such communications were being monitored. The requested
relief would thus
redress the injury to Plaintiffs caused by the TSP.
Although this court is persuaded that Plaintiffs have alleged sufficient
injury to establish
standing, it is important to note that if the court were to deny standing
based on the unsubstantiated
minor distinctions drawn by Defendants, the President's actions in
warrantless wiretapping, in
contravention of FISA, Title III, and the First and Fourth Amendments, would
be immunized from
judicial scrutiny. It was never the intent of the Framers to give the
President such unfettered control,
particularly where his actions blatantly disregard the parameters clearly
enumerated in the Bill of
23Available at
http://www.white-house.gov//news/releases/2005/12/20051219-2.html
23
Rights. The three separate branches of government were developed as a check
and balance for one
another. It is within the court's duty to ensure that power is never
"condense[d] ... into a single
branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)
(plurality opinion). We must
always be mindful that "[w]hen the President takes official action, the
Court has the authority to
determine whether he has acted within the law." Clinton v. Jones, 520 U.S.
681, 703 (1997). "It
remains one of the most vital functions of this Court to police with care
the separation of the
governing powers . . . . When structure fails, liberty is always in peril."
Public Citizen v. U.S. Dept.
of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
Because of the very secrecy of the activity here challenged, Plaintiffs each
must be and are
given standing to challenge it, because each of them, is injured and chilled
substantially in the
exercise of First Amendment rights so long as it continues. Indeed, as the
perceived need for
secrecy has apparently required that no person be notified that he is
aggrieved by the activity, and
there have been no prosecutions, no requests for extensions or retroactive
approvals of warrants, no
victim in America would be given standing to challenge this or any other
unconstitutional activity,
according to the Government. The activity has been acknowledged,
nevertheless.
Plaintiffs have sufficiently alleged that they suffered an actual, concrete
injury traceable to
Defendants and redressable by this court. Accordingly, this court denies
Defendants' motion to
dismiss for lack of standing.
IV. The History of Electronic Surveillance in America
Since the Court's 1967 decision of Katz v. U.S., 389 U.S. 347 (1967), it has
been understood
that the search and seizure of private telephone conversations without
physical trespass required
24
prior judicial sanction, pursuant to the Fourth Amendment. Justice Stewart
there wrote for the Court
that searches conducted without prior approval by a judge or magistrate were
per se unreasonable,
under the Fourth Amendment. Id. at 357.
Congress then, in 1968, enacted Title III of the Omnibus Crime Control and
Safe Streets Act
(hereinafter "Title III")24 governing all wire and electronic interceptions
in the fight against certain
listed major crimes. The Statute defined an " aggrieved person",25 and gave
such person standing
to challenge any interception allegedly made without a judicial order
supported by probable cause,
after requiring notice to such person of any interception made.26
The statute also stated content requirements for warrants and applications
under oath therefor
made,27 including time, name of the target, place to be searched and
proposed duration of that search,
and provided that upon showing of an emergency situation, a
post-interception warrant could be
obtained within forty-eight hours.28
In 1972 the court decided U.S. v. U.S. District Court, 407 U.S. 297 (1972)
(the Keith case)
and held that, for lawful electronic surveillance even in domestic security
matters, the Fourth
Amendment requires a prior warrant.
In 1976 the Congressional "Church Committee"29 disclosed that every
President since 1946
24Pub. L. 90-351, 82 Stat. 211, codified as amended at 18 U.S.C. §§ 2510 et
seq.
2518 U.S.C. § 2510(11) ("aggrieved person" means a person who was a party to
any intercepted wire, oral,
or electronic communication or a person against whom the interception was
directed.)
2618 U.S.C. § 2518
2718 U.S.C. § 2518(1)
2818 U.S.C. § 2518(7)
29The "Church Committee" was the United States Committee to Study
Governmental Operations with
Respect to Intelligence Activities.
25
had engaged in warrantless wiretaps in the name of national security, and
that there had been
numerous political abuses30, and in 1978 Congress enacted the FISA.31
Title III specifically excluded from its coverage all interceptions of
international or foreign
communications; and was later amended to state that "the FISA of 1978 shall
be the exclusive
means by which electronic surveillance of foreign intelligence
communications may be
conducted."32
The government argues that Title III's disclaimer language, at 18 U.S.C. §
2511(2)(f), that
nothing therein should be construed to limit the constitutional power of the
President (to make
international wiretaps). In the Keith case, Justice Powell wrote that
"Congress simply left
Presidential powers where it found them", that the disclaimer was totally
neutral, and not a grant of
authority. U.S. v. U.S. District Court, 407 U.S. at 303.
The FISA defines a "United States person"33 to include each of Plaintiffs
herein and requires
a prior warrant for any domestic international interception of their
communications. For various
exigencies, exceptions are made. That is, the government is granted fifteen
days from Congressional
Declaration of War within which it may conduct intercepts before application
for an order.34 It is
also granted one year, on certification by the Attorney General,35 and
seventy-two hours for other
30S. REP. NO. 94-755, at 332 (1976)
31Pub. L. 95-511, Title I, 92 Stat 1976 (Oct. 25, 1978), codified as amended
at 50 U.S.C. §§ 1801 et seq.
3218 U.S.C. §2511(2)(f)
3350 U.S.C. § 1801(h)(4)(i)("United States person) means a citizen of the
United States, an alien lawfully
admitted for permanent residence, an unincorporated association a
substantial number of members of which are
citizens of the United States or aliens lawfully admitted for permanent
residence, or a corporation which is
incorporated in the United States which is not a foreign power.
3450 U.S.C. § 1811
3550 U.S.C. § 1802
26
defined exigencies.36
Those delay provisions clearly reflect the Congressional effort to balance
executive needs
against the privacy rights of United States persons, as recommended by
Justice Powell in the Keith
case when he stated that:
Different standards may be compatible with the Fourth Amendment
if they are reasonable both in relation to the legitimate need of
Government for intelligence information and the protected rights of
our citizens.. U.S. v. U.S. District Court, 407 U.S. at 322-323.
Also reflective of the balancing process Congress pursued in FISA is the
requirement that
interceptions may be for no longer than a ninety day duration, minimization
is again required37, and
an aggrieved person is again (as in Title III) required to be notified of
proposed use and given the
opportunity to file a motion to suppress.38 Also again, alternatives to a
wiretap must be found to
have been exhausted or to have been ineffective.39
A FISA judicial warrant, moreover, requires a finding of probable cause to
believe that the
target was either a foreign power or agent thereof,40 not that a crime had
been or would be
committed, as Title III's more stringent standard required. Finally, a
special FISA court was
required to be appointed, of federal judges designated by the Chief
Justice.41 They were required
to hear, ex parte, all applications and make all orders.42
3650 U.S.C. § 1805(f)
3750 U.S.C. § 1805(e)(1)
3850 U.S.C. § 1806(c)
3950 U.S.C. § 1804(a)(7)(E)(ii), § 1805(a)(5)
4050 U.S.C. § 1805(b)
4150 U.S.C § 1803
4250 U.S.C § 1805
27
The FISA was essentially enacted to create a secure framework by which the
Executive
branch may conduct legitimate electronic surveillance for foreign
intelligence while meeting our
national commitment to the Fourth Amendment. It is fully described in United
States v. Falvey, 540
F. Supp. 1306 (E.D.N.Y. 1982), where the court held that FISA did not
intrude upon the President's
undisputed right to conduct foreign affairs, but protected citizens and
resident aliens within this
country, as "United States persons." Id. at 1312.
The Act was subsequently found to meet Fourth Amendment requirements
constituting a
reasonable balance between Governmental needs and the protected rights of
our citizens, in United
States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and United States v.
Duggan,743, F.2d 59 (2d Cir.
1984).
Against this background the present program of warrantless wiretapping has
been authorized
by the administration a | | | | | | |
