I certainly hope you will agree that the presence of evidence of wrong doing to the party bringing suit is a requirement under our judicial system. The court does not grant standing based upon future potential harm. They must prove that they are targets--the existence of the program alone is not grounds enough to grant them standing. We've been over this before.

The plaintiffs have failed (in my eyes) to prove with any reasonableness that they have been affected here, let alone harmed. They cannot know that they have been targets or would be future targets unless they concede and present evidence they are speaking with the enemies of this country. The plaintiffs have asserted that they may be subjects of this TSP, but have made no effort to prove it. They cannot claim that because they may be subject to wiretapping because of the TSP that they will be (or have been) harmed. They must prove that they are indeed subjects of it. The defendants in this case (the government) are under no burden to bolster the plaintiffs argument by demonstrating that they have been subjects of the TSP.

The judge relies solely on hearsay evidence (inadmissable) of public statements by administration officials to determine that the plaintiffs are indeed targets and thus harmed. The administration's secrecy regarding this program was violated by a leak--something the judge does not take into consideration. The government was not forthcoming about this program before the NY Times leaked it. To then latch onto the public statements after the fact by the administration as the full and complete truth seems a bit ludicrous, not to mention inadmissible.

This doesn't really answer the question. Did the Executive Branch explain the program on television – specifically indicating that the type of communications made by the plaintiffs would, specifically, be subject to the TSP? Did the Executive Branch explain that only these types of communications would be subject to the TSP? Did the Executive Branch have to go on television and give that explanation? Are you now claiming that the types of communication made by the plaintiffs were somehow not subject to the TSP? Are you claiming that the Executive Branch's explanations were not true?

So, adjusting the question... if the INS went on television after their secret bugging program involving Churches was exposed and stated that they were only bugging Presbyterian Churches and that the bugging would continue, the plaintiff wouldn't have standing? The same harm, but lack of physical presence by federal agents means no standing?

Standing would not be granted to any Presbyterian Church, since those churches would have only been harmed by the existence of the program (not a grounds for suit). If a particular Presbyterian Church (or an organization representing that particular church), the one doing the suing, was actually targeted by the INS, then they would indeed have standing.

So to answer your (off topic) question: yes the lack of physical presence of agents (and hence, bugs) would mean that the church would have no standing, as they were not directly harmed by the action.

In this case, the plaintiffs have not shown that they have been targets of the case. What they are saying is akin to the above case with a suit being brought by Mormons. "You've targeted Presbyterians and our parishioners think we are next. We have been damaged!!" That type of case would be tossed out for lack of standing, as the Mormons had not been harmed directly.

Amlord,

I agree with you that the warrantless wiretaps are not necessarily unconstitutional in the broad sense of national security--which actually contradicts something I said earlier in the debate. However, having listened to the Diane Rehm (Rhem?) show today, there was plenty said about this program, both in terms of legality and ethics. One of the primary points was brought up that the program itself is not unconstitutional since the information gathered from the wiretap is used for national security purposes, not criminal cases. That said, if information is learned via the wiretap which leads investigators to apprehend the criminal, the wiretap can not be used in the courtroom. However, what is to prevent the government from arguing that probable cause was enough to justify the tap sans warrant?

The problem with this whole situation, and ironically argued by the limited government Republicans vs. the big government Democrats, is that Democrats seem to feel the warrantless wiretaps ingores the Constitution's separation of powers dictatum (particularly in the face of the Congress-approved FISA). Republicans feel that the safety of our nation trumps the right of the citizenry to privacy, specifically declared protected from the government by the government. Both are noble in their intent, but I personally fall in step with the Democrats on this issue. I feel that the privacy of Americans far supercedes the government's role of protection.

Like I said previously, the use of such wartime powers has no end in an endless war on terror (just as there will be no end to the war on drugs). The government has been capable of warding off attacks and, in fact, the 9/11 attack was learned prior to 9/11 without these wiretaps. Negligence and lack of attention resulted in the clues being missed or overlooked. If this was possible before, it is possible now without infringing on the citizenry's right to privacy. As someone highly skeptical of government as a whole, I would prefer liberty over security. The track record of the government's honesty is not very good (Nixon's Watergate, Carter/Reagan's Iran-Contra affair, Clinton's sex scandal, Bush's ... everything). It may sound pessimistic of me, but I'm not buying into the Bush administration's requests. Anything could be classified a "state secret" and nobody would be able to do anything about it. It's downright scary.

The lack of physical presence does not mean a lack of bugs, Amlord. It is possible to surveil a location from a distance.

Amlord, even the case you cited that referenced Presbyterian Church v. United States states very clearly that the Church had standing – not because of the physical presence of agents – but because the plaintiffs "alleged actual injuries as the result of the INS' conduct." A chilling effect plus actual injury as a result... that is the more. So, the plaintiffs have to prove that there has been more than a chilling effect on rights.



Not true at all, Amlord. The Executive Branch made it very clear that they were targeting communications between known terrorists and individuals in the United States. These are the exact types of communication that the plaintiffs proved use. I mean, I don't personally know if I'm talking to a known terrorist on the phone. I might not recognize a known terrorist if he stood right in front of me. But the plaintiffs do. So it wasn't a matter of "we think we're next," it's a matter of "the government is, specifically, targeting our communications... the government publicly made statements to that effect." The plaintiffs then need only show, not just how there was a chilling effect – a supression or limitation of the plaintiffs First Amendment rights out of fear of being subjected to the TSP, but how there was actual harm as a result of having their communications targeted by the TSP:



These injuries were not hypothetical or conjectural... they actually occurred.

And then it must be determined if the injury will be redressed by a favorable decision, which it will.

It seems to me that they have standing.

The judge would have been more correct if she said that the plaintiffs assert that they are stifled blah blah blah.

The plaintiffs have not shown that they are specifically targeted. Period. Even in their complaint they do not claim that.

Complaint, courtesy of the ACLU



I believe the Browns will make the playoffs this year. That doesn't make it true and certainly would not pass evidentiary rules in a court of law. They leap from likely to well founded. The judge agrees, but gives us no basis for her reasoning.

Remember your reminder to me: the specific governs the general. In this case, all we have is generalities. The AG has said that the targets of the TSP are Al Qaida operatives. The plaintiffs claim they they have associations with Al Qaida operatives. However, the President did not say that the TSP targets every Al Qaida operative and every individual that might be associated with Al Qaida.

How can you go from the general (we target Al Qaida types) to the specific (we targeted the exact people in communication with the plaintiffs) without an admission or any evidence whatsoever?

The Plaintiffs are complaining about the fact that the program exists. I will repeat it for the umpteenth time: They cannot prove that they were targets or were talking to targets of the TSP. This is the number one reversal grounds the Appellate Court will use. Number two is the flimsy flimsy case that any damage was in fact inflicted on the plaintiffs. Who are the people that will no longer communicate with them? Where are the affidavits from these people?

Who are these plaintiffs talking to anyway? It seems that this fact should be part of the public record. Perhaps they are talking to Al Jazeera reporters and since Al Jazeera has ties to Al Qaida, the feel they are targeted. That would be absurd. But maybe they are talking to real Al Qaida types. Which they are:

From the claim, Mohammed Abdrabboh admits that he has assisted people with Al Qaida connections in their attempt to enter this country.


Another guy, Nabih Ayad, tells a similar story. When the US deported his clients because of ties to the militant wing of Hezbollah, he represented them.



[An aside: I wonder if the ACLU has a proof reader. ]

These briefs seem to be very short on facts and long on boogey men. "I communicate with my family in Lebanon" is not enough to get you targeted by the TSP.

The ones that might have standing are the lawyers representing clients outside of the US. However, how can a defendant be outside of the US and tried in the US? Furthermore, how could a trial conducted outside the US be defended by a lawyer inside the US?

According to the (hearsay) evidence the judge used, the TSP only targets suspected Al Qaida operatives, not the brother of an operative or some other family member. To infer this is to create a "the NSA can and will monitor everyone" environment, which is clearly not the case.

In fact, the sheer number of plaintiffs in this case guarantees that at least some of them are not targets of the TSP. I'm sure that someone in Greenpeace's organization might be a target of TSP (purely hypothetically) because they have 250,000 members. However ,that does not give Greenpeace standing, because they have not proved that fact.

As summed up in this Investor's Business Daily article: A Terrorist Win



Do we have a Constitutional right to communicate with the Congressionally declared enemies of this country? Maybe we do...

Perhaps the plaintiffs have contact with Terrorist camps in Pakistan that are monitored by the NSA? Heck, if they did would that change your opinion?

According to that article:


See what people don't realize is that we don't care if these sleepers have committed a crime. We care if they are in contact with the people that are at war with America. We don't want to arrest them after they've committed a crime, we want to stop them before they attack us. If that jeapordizes a criminal investigation, so be it.

So now, if Osama bin Laden himself calls his buddies up in New York City, the government can't do anything about it without a warrant. Which they probably couldn't get ahead of time and probably wouldn't get after the fact. No wonder we can't catch him.

Presbyterian Church uses basically the same language, Amlord. In that case, the plaintiffs "alleged actual injuries as the result of the INS' conduct."

And as is stated in Ozonoff, as referenced in the case you linked to:




Is this some sort of strange rhetorical device that I'm unaware of?

Okay. Sure. I remember my reminder to you. As I recall it had to do with the general language of the AUMF being governed by the specifics of FISA. I also remember you had absolutely no response to it. Or did you just save your response for this little gem?

But you've illustrated what this boils down to for you, Amlord.



I don't know about you, Amlord, but last I heard US Citizens had rights. The Executive Branch can't reasonably assume any connection and then surveil without oversight. While that concept may need to be modified to deal with the practicalities of a war time situation (and it certainly is within the power of the Congress to make such a modification – and, with FISA, Congress has such a modification in place), it shouldn't be abandoned entirely in favor of secret and seemingly unlimited Executive authority.

Luckily for me I have never assert (and will never assert) that the Executive has a blank check regarding citizens' rights during war time.

What I am saying is that the Executive has a Constitutional duty to protect this country. That duty extends to knowing what the enemy is doing.

I must admit that I am a bit troubled that lawyers feel they cannot communicate with their clients. That is, until I realized that this cannot possibly be true and the plaintiffs in this case do not assert that it is to any convincing degree. They complain that they cannot locate witnesses (I wonder how easy it was to track down Al Qaida-types before? ) and cannot engage in advocacy by getting all viewpoints on the issue (including the terrorist angle). To quote from their claims: it harms "the ability of the plaintiffs to talk with sources, locate witnesses, conduct scholarship and engage in advocacy."



The surveillance is on the party outside of the US: the non-US party. Just because an enemy of this country is talking to someone who is a US citizen does not make them immune to military reconnaissance, which is what this program really is.

I am not making the claim that the US persons talking to the Al Qaida types are guilty of any crimes. However, the courts have long taken the view that military intelligence is within the realm of the executive and not the judiciary or the legislative branches.

The case against the INS (Presbyterian Church v. US) did not have the national security component that is essential to understanding this case.

It saddens me that nobody here besides myself seems to feel that the terrorists have won this case and are now more free to plot against this country.

There is a law on the books that deals very specifically with this issue. It is called FISA.



Give me liberty or give me death.

First of all, they aren't free to plot. They never have been. We have a ton of tools at our disposal to watch these guys, most of them require due process, unfortunately.

Second, I have no issue with our government desiring to listen to calls coming into this country from possible foreign agents. I happen to agree with you that one of the primary functions of government is to ensure our security. Signals intelligence is unquestionably a critical element of that effort.

Where we appear to part ways is that I believe each of those instances where a US citizen is going to have their phone conversations, emails, or personal communications monitored, MY government owes that person the the benefit of the 4th amendment protections they were guaranteed.

Does FISA probably need some revision due to the possible volume of requests? Very likely. But inconvenience of the government isn't my concern. Making sure that someone is "watching the watchers" is my concern. Right now, I don't have that confidence, and to be honest, I'm surprised that you do.

Maybe I'm a little spoiled because my country hasn't had a global war in my lifetime (no, I don't think we do now). Perhaps had I been born prior to WWII, my perspective would be different. But I do recognize that we face a very different enemy than we did back then. And I realize that we may have to think outside of the box when it comes to finding ways to combat that enemy. I just don't want the constitution to become collateral damage in the way we fight that battle. Right now, that is very much a fear of mine. Especially if we get hit again and its of any caliber equal or higher than 9/11.

I don't think the terrorists won with this decicision, and fwiw, I do think the judge's decision was a little sloppy and emotionally charged. But I'm glad to see the decision regardless and hopeful this will move this dialogue up the chain so that SCOTUS can focus on the issue and hopefully tell the Executive Branch they need to adjust their approach to follow the law.

Please spare us the Hannity/O'Reilly hypotheticals and exaggerations--it's a form of terrorism to continuously promote your political standpoint by arguing that anyone of another opinion is aiding the terrorists (Hannity in particular uses this line of flawed logic all the time). Prior to 9/11, we had a laptop containing full details of the plot. We had an Aug. 6th PDB which had to have come from somewhere and that was before warrantless wiretaps. Warrantless wiretaps would not have stopped Japan from bombing Pearl Harbor since they were not in communication with Americans. Warrantless wiretaps are legal to an extent, but government must be willing to sacrifice their rights to prosecute those being tapped in exchange for national security. Why risk the loss of prosecution when you can gain a warrant after the fact by appealing to FISA?

Terrorist have won? I'd say so. Not from actually damaging us, but making some of you so afraid (the purpose of terrorism) that you'd cough up all your lunch money just so you don't get hurt.

But what has Al Qaida actually done to harm us?

In 1993, they tried to blow up the WTC. Failed miserably.

In 2001, in the most horrifying attack on our soil, killed a few thousand people. As tragic as that was, it doesn't even make the radar screen when compared to people killed by violent crime. But during that time period between 1993 and 2001, roughly 172,000 people were killed by violent crime. Given the republican's reaction to 9/11, they should be cowering under their beds in fear because they have a thousand-fold better chance of being killed by a violent criminal.

You're willing to give up all your freedoms because of a potential threat to several thousand people but have no fears about something that happens everyday and kills hundreds of thousands? You might be afraid that these same bad guys will try to use stuff that could kill millions, but there are two reasons why that simply isn't plausible:

1. The government would be searching everything in all ports and securing our borders if that thought that was a real possibility.
2. Nobody would give terrorists that kind of power unless you beleive terrorists are trustworthy. Nobody would give terrorists the power to destroy and/or own the region in which they were supplied this stuff. A terrorist cell with the power to kill millions has an awesome mount of collateral to get their way in almost every fashion they could dream of - including more WMD from whoever supplied it.

It's no wonder this administration has convinced you it's making you safer by taking away your freedoms, building nations in the middle east, while leaving our borders wide open for anybody to walk through. The success of Osama of instilling terror in you has made you an easy target.

Funny one...you almost had me going there.

I've covered why after the fact warrants are impractical. I'm assuming you read what I wrote at least.

Back in 1949, the Supreme Court ruled that inciting violence was within the First Amendment's rights. At the time Justice Robert Jackson wrote a 24 page dissent including the passage:


Terminiello v. Chicago

The phrase is commonly quoted as "The Constitution is not a suicide pact." (Justice Goldberg also used this phrase in 1963 referring to the Congress's ability to compel military service during a time of war at the expense of civil liberties.)

Whether or not anyone personally agrees, we are at war with terrorists. Congress has declared it. The Supreme Court has affirmed it. Until Congress retracts that declaration or withdraws funding from the cause, we will remain at war.

War involves more than battlefield tactics. It requires reconnaissance and capturing and killing the enemy. It involves foiling the tactics and strategy of the opponents. These are implicit in the conduct of war.

As the Supreme Court said in Hamdi v. Rumsfeld:


Note the parallels in Hamdi to this case:




and





Hamdi v. Rumsfeld

DaytonRocker: Bring some court precedent or prepare to be ignored. My position is not one of fear. I don't fear a terrorist attack on Cleveland, Ohio or anywhere else.

But if one happens, I hope you will cut your President some slack when he hasn't "done his job". This is his job. His primary and most important job. This is Constitutional, despite what some looney judge in Michigan says. It might be outside of FISA, making it technically illegal, but it is within the President's war time power, just as the Court said in Hamdi. They must defer to his judgement (and the judgement of Congress, who could end this war tomorrow) in these matters until the abuses become at least concrete and not hypothetical.

The president does not have any wartime powers Amlord, war has not been declared and the AUMF does not constitute a declaration of war. However I suspect this is as close we are ever going to get to an admission of wrong doing from you, so I'll take it.

Furthermore, Hamdi did not at all rule upon AUMF itself, it was strictly limited to the subject of enemy combatants.

In case you haven't realized it Congress is controlled by the GOP, and it has rubber stamped this president's agenda from day one.

Finally, what you are suggesting in your last sentence is impossible. If a program is operating in secret then there is no way to prove that it has been used in the way you suggest, but that doesn't mean it isn't being used.

When Amlord requests something of me, I am sure to oblige. I promised myself that i would not return to this debate until I could bring case law to support my argument as you have done for yours. What I found was that for the most part, you are right. The jurisprudence of the issue is on your side and I think that many others have proven your point by also failing to provide cases that contradict the ones you have presented. That it is basically a fight over philosophical differences. The issue of legal standing is a tricky one because obviously the people who claim they are harmed by the program cannot prove it and the government is able to hide who is actually harmed through the guise of national security. This makes declaring the program unconstitutional only possible if a person is harmed by the program and somehow has evidence for it OR if there is a leak of information implicating illegal action by the government. I would be quite the hypocrite if I advocated judicial activism in this case to have the decision go in my favor even in the face of the jurisprudence presented. I believe that the program is wrong but I also believe that strict constructionism dictates that precedence and case law is equally as important for the survival of our civilization.

While one branch of our federal government is closed off to us for now, we all must keep in mind that there are still two branches of government that we have power over and can affect. The Legislature has the ultimate power in withholding appropriations that could be used towards the funding of programs that it deems illegal. It also has the power of oversight to question and challenge the Executive. The Executive also has his/her duty to uphold the Constitution and both protect our livelihood and our freedoms. This is obviously no easy balance and there will always be people who believe that we have done too little or not enough in one area.That's why it is important to constantly question and challenge our politicians to ensure that our freedoms are protected. The only way they can take those freedoms away is if we the people let them. With freedom there is responsibility and it is out right to protect our lives and our freedoms.

But aside from the argument that the plaintiff has no legal standing, there is still the question of if this program is constitutional. In order to prepare for this debate I read a number of very interesting articles put out by the ABA on this very issue:

National Security Law Report: The NSA Surveillance Debate

There is a whole lot of information there from different perspectives for those willing to read it all. I wouldnt do it any justice to pick certain quotes out and using that for debate.

I still contend that there is a stark difference of foreign intelligence operations and domestic eavesdropping. The NSA program in question in my mind falls into the category of domestic eavesdropping since it was Americans on American soil being tapped. If the taps were made on foreign soil, targeting a foreign agent, then it would call under the foreign intelligence operation. There are certain obvious powers that the Founders felt were more necessary to be checked than others. And i think the privacy of the people is one them for it is inconceivable that we could have a free society when the government is able to listen to all of our communications.

In conclusion, i maintain that while this may appear to be a victory for those who want to defeat terrorists Amlord, it could also be a defeat for those who fear tyranny. Its good that the government is given wider powers to fight Al Qaeda and protect the lives of American citizens. But its bad that they must intrude on the privacy of innocent Americans and potentially harm them through misunderstanding or malicious intention. Thats why I say that when we give the government the power to do good, we give it the power to do evil. In a benevolent dictatorship much like the administrations of Lincoln and FDR, sometimes one man with lots of powers can bring about great chance and prosperity. But every leader we elect will not have the will or the wisdom of leaders of the past and thats where we run into problems. If we concentrate the power into a central body, this case the President, and always allow those powers to exist unchecked, then we open the door for someone who has evil intentions to use those tools against the populace.

While I agree that the AUMF allowed for the detention of Hamdi, the court recognized in that case that Hamdi was within the borders of the country we were fighting, on that battlefield, fighting against his country. The State used "necessary and appropriate" force in dealing with that captured prisoner – well, almost... they still needed to grant him his 5th Amendment right because he is a US citizen and the court did intervene there to some extent.

The Court in Hamdi does not state that the Courts have no role in protecting the rights of US citizens in a time of war.

Congress authorized all "necessary and appropriate". It is perfectly reasonable to assume that, in terms of signals intelligence, that they meant in accordance with the US Constitution and within the specific guidelines of FISA – which has a section dedicated to signals intelligence during war time.

Congress has the explicit constitutional power to create rules for the government and regulation of the military. There is nothing in the constitution that says the President, as Commander in Chief of the military, can simply ignore those rules. FISA is such a rule.

So, it's illegal but constitutional. Yeah. Okay. And the plaintiffs have no standing, but some might have standing, but they really don't. Sure.