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Thursday, August 24, 2006

Judicial Indiscretion

The right the of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fourth Amandment to the United States Constitution

Like so many other legal decisions, the ruling of Federal Circuit Judge Diggs Taylor depends upon a definition of a word - in this case, the word 'unreasonable'. Is it unreasonable for the government, in the form of the Terrorist Surveillance Program, to monitor cell phone and Internet communications of suspected Muslim activists in the United States in order to learn of and thwart terrorist plots, much in the way Great Britain recently discovered twenty suicide bombers planning to board airplanes and blow them over populated areas with liquid explosives? Judge Diggs Taylor thinks it is’.

The defendants – the government - "are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program in any way, including, but not limited to, conducting warrant less wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III," she wrote. Press Secretary Tony Snow rebutted, "The program is carefully administered and targets only international phone calls coming into or out of the United States where one of the parties on the call is a suspected al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out," said the White House statement. Despite blazing headlines that the program was deemed ‘illegal’, it is important to note that Judge Diggs Taylor is a single Federal judge, and that the decision has already been appealed by the Attorney General. To put this in perspective, she has the same authority as the California Federal judge who rued that the words ‘Under God’ should be removed from the Pledge of Allegiance.

Interestingly, one of the precedents cited was Clinton vs. Jones, which compelled former President Clinton to respond to charges by the woman he assaulted, Paula Jones, while he was still in office. Judge Diggs Taylor wrote, “…the separation of powers doctrine is again discussed and, again, some overlap of the authorities of two branches is permitted. In that case, although Article III jurisdiction of the federal courts is found intrusive and burdensome to the Chief Executive it did not follow, the court held, that separation of powers principles would be violated by allowing a lawsuit against the Chief Executive to proceed.” In other words, Judge Diggs finds equivalent the refusal of a Chief Executive to provide salacious information that might be personally embarrassing to the refusal of a Chief Executive to provide specific information that might compromise national security.

Porcupine is a great believer in allowing people to make up their own minds, so a link to the text of Judge Diggs Taylor's decision is provided

The Judge’s finale reads, “As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967): Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile.” Porcupine thinks it would be equally ironic if we are able to momentarily reflect upon our strong resistance to the conservative subversion of our liberties in the very moment we are blown to smithereens by a suitcase nuke.

Naturally enough, the decision had its fans. "Today's ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush Administration," said Anthony D. Romero, the ACLU's executive director. Interestingly, Judicial Watch has revealed that the relationship between the ACLU and the Judge may be more than one of ideological agreement. It seems that Judge Diggs Taylor served as a decision-making Trustee for the Community Foundation for Southeastern Michigan (CFSEM). The official CFSEM website states that the foundation made a “recent grant” of $45,000 over two years to the American Civil Liberties Union () of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision. The group also made a grant of $180,000 to an Arab rights group which is also appearing in her courtroom.

Even the sere Gray Lady, the New York Times, condemns this activity HERE. Porcupine wonders what Justice Earl Warren would have thought of a judge who felt that her activities were so morally superior that mere conflict of interest considerations should not intrude upon her rulings or activities.


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