Administration Gets Stay Of Execution, Pending Appeal; Meanwhile They're Trying To Pass A New Law To Make It Legal
But The Tricky Little Question Never Mentioned In Today's News Has Not Escaped This Nearly Frozen Blogger
By Winter Patriot on 8/17/2006, 10:55pm PT  

Guest blogged by Winter Patriot

Today (Thursday), in Detroit, a federal judge ruled that the illegal covert spying program put in place by the Bush administration is unconstitutional and ordered the administration to stop it immediately. But the administration has given every possible indication of its unwillingness to comply.

According to an article by Tom Brune, in Newsday this evening:

U.S. District Judge Anna Diggs Taylor ruled that the controversial program violates privacy and free speech rights, the separation of powers, and the law passed to govern domestic surveillance.

Brune also reports:

White House spokesman Tony Snow said, "We couldn't disagree more with this ruling."

If you remember pre-totalitarian America, you'll recall that court rulings were once considered the law of the land, regardless of whether or not the White House agreed. But things are very different now. So different, in fact, that Attorney General Alberto Gonzales, who is theoretically in charge of seeing that justice is done in this country, heaped contempt on Judge Taylor's ruling, saying:

"We will continue to utilize the program to ensure that America is safer."

Safer from what? Our Constitutionally-protected freedoms?

According to the decision rendered by Judge Anna Diggs Taylor,

"The public interest is clear, in this matter ... It is the upholding of our Constitution."


"There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution," she wrote.

"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 Rights."

Ahhh, the Bill of Rights. How quaint. Right, Alberto?

Brune points out that the administration may be able to wiggle out of the ruling by using a very shifty strategy for their appeal.

[S]ome constitutional experts questioned whether Taylor's ruling will survive the government's appeal to the 6th Circuit in Cincinnati, Ohio, and possibly to the Supreme Court.

Those courts could simply reject the case by saying the plaintiffs lack standing to bring the lawsuit, since they cannot prove the government eavesdropped on them because it is a state secret, the experts said.

If they can't get the case dismissed on that technicality, they will most likely be forced to fall back on their favorite time-tested techniques: denial and obfuscation.

According to David Stout in the New York Times,

Mr. Gonzales said he remained confident that the program was constitutional, and that Congress had given the president all the authority he needed when it authorized the use of military force after the Sept. 11 attacks.

Thus covert spying is conflated with the use of military force, allegedly to protect the country.

The dirty little secret in all this has been protected by the mainstream media, but as Abraham Lincoln so correctly said, "You can't fool all the people all the time."

Tom Brune:

The New York Times revealed in December that after the Sept. 11 attacks President George W. Bush had authorized the National Security Agency to intercept the international calls and e-mails of suspected terrorists between contacts here and abroad.

David Stout:

The judge’s ruling is the latest chapter in the continuing debate over the proper balance between national security and personal liberty since the attacks of Sept. 11, 2001, which inspired the eavesdropping program and other surveillance measures that the administration says are necessary and constitutional and its critics say are intrusive.

I've read many other accounts telling essentially the same tale: that the administration initiated this covert illegal spying program after September 11, 2001; that the program is essential to preventing "another 9/11"; and that we might have been able to avoid 9/11 altogether if the program had been in place before then.

But can we be so sure?

Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say

The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court.

The allegation is part of a court filing adding AT&T, the nation's largest telephone company, as a defendant in a breach of privacy case filed earlier this month on behalf of Verizon Communications Inc. and BellSouth Corp. customers. The suit alleges that the three carriers, the NSA and President George W. Bush violated the Telecommunications Act of 1934 and the U.S. Constitution, and seeks money damages.

"The Bush Administration asserted this became necessary after 9/11,"' plaintiff's lawyer Carl Mayer said in a telephone interview. "This undermines that assertion."'

Consider the implications: If the secret illegal spying program was in place before 9/11, then it could not have been instituted in response to the attacks of that day. And therefore it can't properly be called part of the War on Terror.

What, then, could be its purpose?

If it's not part of the so-called War on so-called Terror, then what is it part of?

The undeclared War on Political Dissent in America?

I'm just asking!

NOTES: Both Tom Brune's piece in Newsday and David Stout's report in the New York Times have been changed since I first read them.

Unlike what happened to the New York Times article which I quoted in a piece yesterday, these changes are superficial and do not significantly change the meaning of the report. Or do they?

Newsday has changed its headline from "Judge orders halt to Bush's domestic spying" to "Domestic spying declared unconstitutional", and clarified a few phrases. You can find the text of the previous version here.

The NYT piece has the same headline as before, but four paragraphs have been added at the end. Maybe it's an insignificant thing, but the previous version left the last word with Judge Taylor:

“Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this nation apart.”

And the newer version ends on a much different note, from Republican Senator Bill Frist:

“We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm,” he said. “I encourage swift appeal by the government and quick reversal of this unfortunate decision."

You can find the original text of that article here.

UPDATE 1: In the interests of full disclosure: This is not the original version of this article. I have removed one passage and changed the wording of another, upon being advised that a source I had quoted was unreliable. I apologize to anyone who read the previous version.

I admire the writers and editors who update their writing in the interests of clarity and/or truth. I think that's what happened to the Newsday article. I know that's what happened to this one.

UPDATE 2: Let's look at the NYT piece again. After their first posting, they added two paragraphs of comments from each side, and they just happened to quote the Republicans last.

Democrats said Judge Taylor saw things the right way. “Today’s district court ruling is a strong rebuke of this administration’s illegal wiretapping program,” said Senator Russell D. Feingold of Wisconsin. “The president must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so.”

Representative Ed Markey of Massachusetts, a senior Democrat on the House Homeland Security Committee, said the administration should stop “poking holes in the Constitution” and concentrate on “plugging holes in homeland security.”

But Republicans lined up behind the administration. "America cannot stop terrorists while wearing blinders,” said House Speaker J. Dennis Hastert. “We stop terrorists by watching them, following them, listening in on their plans, and then arresting them before they can strike. Our terrorist surveillance programs are critical to fighting the war on terror and saved the day by foiling the London terror plot.”

Senator Bill Frist of Tennessee, the majority leader, agreed. “We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm,” he said. “I encourage swift appeal by the government and quick reversal of this unfortunate decision."

Two Democrats, then two Republicans.

Does that matter?

The Newsday piece only has one paragraph of comments from each side, but it also quotes the Republican last.

The ruling also touched off partisan political sniping. Sen. Harry Reid (D-Nev.), the Senate Democratic leader, charged, "The administration's decision to ignore the Constitution and the Congress has come at the expense of the security of the American people."

Republican National Committee Chairman Ken Mehlman responded in a statement attacking Democrats and the 73-year-old judge, who was appointed by President Jimmy Carter: "Liberal judge backs Dem agenda to weaken national security."

What do you think? Do you think that matters?

I can remember reports from the fall of 2004 about "John Kerry for President" rallies where the last paragraph consisted of quotes from Karl Rove.

Does that matter?

When I was debating I always wanted the last word.

Was that stupid?

UPDATE 3: Now that I've been thinking about balance and fairness and so on, I've decided to leave you with two more links --- editorials from USA TODAY:

James S. Robbins, NSA program is vital tool; and

USA TODAY Editors, Wiretap ruling affirms that presidents aren't monarchs.