Last August, I said that Anna Diggs-Taylor’s ruling in the ACLU v. NSA wouldn’t stand. This morning, I was proven right:

A divided U.S. appeals court dismissed a challenge to the Bush administration’s terrorist surveillance program, ruling that the American Civil Liberties Union and others lacked the legal right to sue over the spying.

The 2-1 decision today by the Cincinnati-based 6th U.S. Circuit Court of Appeals overturned a lower court ruling that said the eavesdropping without court warrants violated the Constitution and federal law. The appeals panel directed the trial court judge to throw out the case.

At the time of the initial ruling, David Corn made this declaration:

Once again, a court has told Bush that he is not all-powerful. He cannot create military tribunals on his own. He cannot detain American citizens as enemy combatants without affording them some elements of due process. Taylor’s decision will probably be appealed by the Bush administration, and the case will wind its way toward the Supreme Court. But this decision reaffirms, and puts into practice, the bedrock principle that a president’s power does not trump the workings of a republican government, even when it comes to war.

I don’t blame Corn for thumping his chest like that. That’s his right. This ruling essentially said that his taking a victory lap was premature at best. The true message behind Diggs-Taylor’s ruling was that America can’t afford liberal judges if it hopes to vanquish the jihadists.

As you would expect, both sides issued statements on what this morning’s ruling meant:

ACLU Legal Director Steven R. Shapiro said in a statement that the ruling “deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails.” He said the organization will consider appealing to the U.S. Supreme Court.

Justice Department spokesman Brian Roehrkasse said the agency is pleased with the ruling. “The Terrorist Surveillance Program was a vital intelligence program that helped detect and prevent terrorist attacks,” he said. “It was always subject to rigorous oversight and review.”

Shapiro’s statement doesn’t square with prior rulings on surveillance of international communications. Here’s a precedent that Powerline’s John Hinderaker cites that contradicts Mr. Shapiro’s statement:

For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President’s inherent Article II powers. So far, I have found no authority to the contrary.

John also posted this about other precedents. I strongly recommend that you keep a copy of this post for future battles with wrongheaded liberals on this issue.

Hopefully, this will be the last Judge Diggs-Taylor ruling that we have to deal with. We really can’t afford this type of liberal lunacy in a time of war. My friend Bones says that muddle-headed judges like Diggs-Taylor are “trying to get me killed.” I totally agree with that opinion. The good news is that judges like Alice Batchelder are trying to restore sanity to the fight.

Technorati Tags: NSA, ACLU, Anna Diggs-Taylor, Alice Batchelder, Legal Precedent, David+Corn, FISA, Fourth Amendment

Cross-posted at LetFreedomRingBlog

1. [...] Cross-posted at California Conservative Categories: ACLU, The Constitution, Intel, Terrorism, 9/11, Anti-War Activists, Judicial Activism | [...]

   Pingback by Let Freedom Ring » Blog Archive » No Surprise: ACLU v. NSA Reversed — July 6, 2007 @ 10:42 am

1. The ruling was reversed not because of the merits of the arguments at the heart of the case, but rather, that the plaintiffs lacked standing to bring the case. Don’t make this out for more than it is; the arguments still hold water, and if not the ACLU, then some other group or individual may certainly step forward to bring this case, and this time, clearly with standing.

   What is it about conservatives that they hate our freedoms? Why gloat, and why oppose a fight that is for some of our most fundamental rights? Why conflate international and domestic intelligence gathering (as though the separate agencies hadn’t been in place for a reason)? Its not like anybody said the government shouldn’t investigate and survey suspicious characters; there already is that mechanism and system under the FISA courts, which you ironically quote and twist their argument to support this, frankly un-American concept. History seems to have to repeat itself, as we go through yet another cycle in which individual rights are curtailed by the government, only to have the rights restored with an even greater understanding of why they should not be curtailed, and the ensuing regulation and law that comes with further guarantees. Commenter Carlos continuously accuses me of wanting a huge “guvmint” that coddles every citizen, when this is case-in-point that I want the government out of my private life, along with shedding the huge bureaucracy required to perform this level of domestic spying!

   Meanwhile, the chatter that has been reported is being compared to the level the Summer before 9/11. Al Queda is issuing statements of “spectacle” attacks. I suppose that despite these warnings, it will be a big shock that no one was paying attention, and we can attribute it to the liberals fighting domestic spying terrorist surveillance.

   And not the fact that we’re creating enemies faster than we can kill them.

   Comment by Rocky — July 6, 2007 @ 11:15 pm