8.18.2006

"When structure fails, liberty is always in peril"

This hasn't quite hit front page news yet, as we've all been so absolutely gripped by JonBenet's killer coming forward, but in case anyone would like to know, the court ruled the NSA secret wiretapping program to be illegal. Here's some of the ruling from the UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION:
"Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. 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. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never “condense[d] ... into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring). (pgs 23-24)


The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. (pg 33)


In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained. (pg 36)

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully
applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well.51 In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. (pgs 41-42)

XI. Conclusion
For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law. Defendants’ Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege." (pg 44)


I imagine we'll see this case come up again in an appeal, but for now, we have a case won by the people. If you'd like to read the entire decision go here (in PDF). I wonder if there is now grounds for impeachment and/or removal? Does viloation of the 1st and 4th amendment consitute a high crime or misdemeanor? Hmm...

2 Comments:

Blogger Alanda said...

I'm so glad the courts are fucking finally checking executive power like they're supposed to, post Marbury v. Madison. (right?) It only took 5 years.

2:26 PM  
Blogger RimaJoy said...

ps. no power checking has actually happened yeah, correct? calling someone out isn't really doing a hell of a lot. but maybe (mungkin?) that just shows my current lack of belief in "the system" there.

ooh, spy vs spy debate...

8:03 PM  

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