Tête-à-Tête-Tête

What’s next? VP can’t shoot people in the face?
link.

Update (of sorts):

I’ve been amusing myself watching the heads explode over where the Tories live.

Check them out:

However, Judge Taylor is undeterred by such precedent. First, she notes that certain basic outlines of the program have been made public and confirmed by the Administration (gliding over who forced this issue into the public eye), and notes that the plaintiffs are asking for a permanent injunction solely on the basis of the facts publicly admitted — utterly ignoring the possibility that more detailed discovery (if such a thing were not unduly intrusive of national security, which it obviously is) would bear on such things as the reasonableness of the government’s need to conduct such surveillance. As we shall see below, once Judge Taylor gets past the state secrets issue, she repeatedly rejects the government’s defenses precisely on the grounds that they are not supported by sufficient evidence. She simply assumes that, just because the government is unwilling to disclose additional facts, they must not exist. {emphasis mine}

Versus the actual decision:

Defendants also filed ex parte and in camera versions of its brief along with other classified materials, further buttressing its assertion of the privilege.
[...]
Again, the court acknowledges that it has reviewed all of the
materials Defendants submitted ex parte and in camera.
[...]
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 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.

So much for that, huh?

It goes on and on… Mainly harping on how the .gov just can’t reveal all the state secrets that would transform the program that so obviously breaks the letter and spirit of FISA and that so obviously proceeds without any means of ensuring probable cause as required by the fourth amendment into a program that is quite legal and constitutional. And it’s unfair to rule it illegal and constitutional without hearing this imaginary evidence.

So, anyway… I’ll be interested to see how the 6th Circuit decides the inevitable appeal. It seems true that there are some weaknesses in the decision as handed down by Hon. Anna Diggs Taylor… even our lefties think so. However, on the pivotal points, the judgment is sound, and represents the only rational response. The FISA act is very clearly in both letter and intent – to bar this sort of program. The AUMF quite clearly did not implicitly or otherwise repeal FISA – the administration asked Congress to do that in the AUMF, and Congress refused. The Fourth Amendment requires probable cause, and the Courts have long wisely held that the burden of probable cause cannot be met without warrants, with some tiny exceptions like “exigencies” – which have not been shown to exist here, and which, by definition would not cover ongoing programs. (Hell, FISA provides for exigencies, itself). The case is pretty damn clear cut, and the decision is pretty obviously right (just ask all the legal scholars who have been saying so all along). If the courts don’t overturn it on a technicality – like the “state secrets” defense that Red State is carrying wood for – then they don’t have any room to overturn it.

The stakes are pretty big – even if it is overturned on the state secrets technicality, that still sets a precedent that a spying program need have zero oversight. The program itself exists outside of Judicial and Congressional review in the first place, and if the courts unilaterally declare a lack of jurisdiction, then there is no other oversight. Period. That’s bad. Even worse would be a decision that such a program does not violate FISA or the fourth amendment – which would make FISA – and any other legislation meant to regulate spying against Americans – and the Fourth Amendment itself – meaningless.

There is hope… if the 6th Circuit overturns (or even if it affirms) this decision, the matter will likely go before a Supreme Court that made the right decision on a case where similar defenses were offered not too long ago. This one is up in the air… I hope it lands well.