Sarah Karash, Associated Press:

A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion. …

… The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs.

Glenn Greenwald discusses the opinion, so see Glenn for intelligent analysis and background (scroll down to updates). Glenn also predicts news media will spend more time on JonBenet Ramsey’s alleged killer.

This is great news, but I wonder if and how it will be implemented. The Bush Administration is likely to ignore the decision and secretly continue the program. If Congress can’t constraint the Bushies, I don’t know why they’d obey a court.

Anyway, as Dave Johnson points out,

Keep in mind that all this means is they have to start getting warrants — follow the law and Constitution just like how we have always done it in this country.

Dave links to rightie blog Ace of Spades; the comments are priceless.

Not only is she a Carter appointee, she is Black. Want to bet she was admitted to Yale on a Minority set a side? Maybe she’s related to Conners, the other Black nut from Mo Town.

I liked this one, too:

I think all of us should send this judge thank you cards. She may have just handed the GOP a 2006 sweep in both houses. She should be the Willie Horton of 2006.

Second, as we have all discussed with the ‘tards over NSA and other WoT issues, the Supreme Court (albeit in dicta) has indicated that foreign survellance is completely within the president’s power as commander in chief, so this ruling has no real chance. In fact, I wonder if Roberts will scoop up the appeal to make this a principal a firmly decided principal.

Right, but foreign surveillance of non-US persons is not what the suit was about. (This crew is brilliant, aren’t they?) The concern is that the Administration is not limiting itself to non-U.S. persons, and with no meaningful oversight, who can know what they’re up to? And of course there’s the picky little matter of following the law. Here’s an explanation of what the law says, courtesy of Media Matters.

FISA contains provisions that limit … warrantless surveillance to communications “exclusively between foreign powers.” Those provisions do not apply to Bush’s conduct, as he authorized domestic surveillance of communications between persons inside the United States and parties outside the country. FISA specifically states that the president may authorize electronic surveillance without a court order only if there is “no substantial likelihood” that the communications of “a United States person” will be acquired.

FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering “foreign intelligence information” for no more than 15 days “following a declaration of war by the Congress.” This provision does not permit Bush’s conduct either, as he acknowledged reauthorizing the program more than 30 times since 2001….

…The FISA (Title 50, Chapter 36 of the United States Code) provision (Title 50, Section 1802 — or “50 USC 1802”) … allows the president to authorize surveillance without a court order if the attorney general certifies that the surveillance is “solely directed” at “the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers;” or, “the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power.” The law also states that warrantless surveillance is permissible only if the attorney general certifies that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

A second section within FISA, titled “Authorization during time of war” (50 USC 1811), states that the president may authorize warrantless surveillance for a period of no more than 15 days after Congress declares war.

Same commenter, continued:

Third, isn’t it time judicial review got smacked down? Can’t we get congress to pull a Justice Marshall over the Supreme Court and declare that Congress has the power to overrule supreme court decisions? Oh wait, no, Congress was deballed when DeLay left.

Let’s get this straight: A federal judge rules that the executive branch is violating a law passed by Congress, and this guy wants Congress to overrule the judge so that the president can continue to ignore Congress.

Brilliant, I say. You can’t make this shit up.

As Scott Lemieux says, the Right thinks that upholding the Constitution makes one pro-terrorist.

Kagro X at The Next Hurrah:

Taylor rejects the assertion that the defendants cannot carry on their case without the exposure of state secrets. Why? This part, in my opinion, is the gem we’ve all been waiting for:

The Bush administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. 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 of the TSP. Defendants have presented support for the argument that “it … is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies.” [Footnotes omitted.]

In other words, Taylor says that all the claims about what sensitive information may or may not be revealed in a trial is quite beside the point of whether or not the program is legal and constitutional. The government has never once made the argument that the argument for the program’s legality is itself a matter of national security. Far from it. They have claimed that it was an open and shut case.

Taylor says: Fine. Make the case.

Here’s another good bit:

One other gem worth highlighting, though, was Taylor’s address of the Fourth Amendment’s applicability:

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probably cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exegencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution.

Ouch.

Ouch, indeed. Well, let’s hope the decision stands …

See Christy Hardin Smith at firedoglake.

You know you’re in Bizarro World when the last barricade between tyranny and liberty is … the director of the FBI.

Chitra Ragavan writes in the March 27 issue of U.S. News and World Report:

In the dark days after the Sept. 11, 2001, terrorist attacks, a small group of lawyers from the White House and the Justice Department began meeting to debate a number of novel legal strategies to help prevent another attack. Soon after, President Bush authorized the National Security Agency to begin conducting electronic eavesdropping on terrorism suspects in the United States, including American citizens, without court approval. Meeting in the FBI’s state-of-the-art command center in the J. Edgar Hoover Building, the lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches of homes and businesses of terrorism suspects–also without court approval, one current and one former government official tell U.S. News. “There was a fair amount of discussion at Justice on the warrantless physical search issue,” says a former senior FBI official. “Discussions about–if [the searches] happened–where would the information go, and would it taint cases.”

FBI Director Robert Mueller was alarmed by the proposal, the two officials said, and pushed back hard against it. “Mueller was personally very concerned,” one official says, “not only because of the blowback issue but also because of the legal and constitutional questions raised by warrantless physical searches.”

An FBI spokesman told US News that the FBI has not conducted physical searches without consent or a court order. However, it is apparent that the Bush Administration thinks it can conduct physical searches without consent or a court order.

… in a little-noticed white paper submitted by Attorney General Alberto Gonzales to Congress on January 19 justifying the legality of the NSA eavesdropping, Justice Department lawyers made a tacit case that President Bush also has the inherent authority to order such physical searches. In order to fulfill his duties as commander in chief, the 42-page white paper says, “a consistent understanding has developed that the president has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes.” …

…John Martin, a former Justice Department attorney who prosecuted the two most important cases involving warrantless searches and surveillance, says the department is sending an unambiguous message to Congress. “They couldn’t make it clearer,” says Martin, “that they are also making the case for inherent presidential power to conduct warrantless physical searches.”

TalkLeft reminds us that the U.S. engaged in physical monitoring of radiation levels mosques and homes without warrants. This monitoring sometimes required the agents involved to go on the property being monitored, which makes one suspect “radiation levels” was a smokescreen. The targets were almost all U.S. citizens.

(Reminds me of at least one Law & Order episode in which the cops want to enter an apartment but don’t have a warrant. Lenny says, “Do you smell gas?” And they break the door down to check for a gas leak but are really looking for the gun used in a homicide. Having to wait for a warrant does slow down the plot.)

U.S. News says that (once again) the Bushies site the famous Gorelick testimony from the Aldrich Ames hearings as their precedent for warrantless searches without noticing that after these hearings Congress changed the FISA provisions so that what was done without warrants then couldn’t be done any more. In other words, the Bushies are violating law that didn’t exist when the Clintons were checking out Aldrich Ames. The Clinton Administration adhered to FISA law as it existed at the time.

But how weird is it that the “strict constructionists” who just hate it when Supreme Court justices “make law” think that it’s fine for a a former deputy attorney general in the Clinton administration to “make law”?

Clearly, the Bushies put FBI director Mueller on the spot.

A former marine, Mueller has waged a quiet, behind-the-scenes battle since 9/11 to protect his special agents from legal jeopardy as a result of aggressive new investigative tactics backed by the White House and the Justice Department, government officials say. During Senate testimony about the NSA surveillance program, however, Gonzales was at pains to avoid answering questions about any warrantless physical surveillance activity that may have been authorized by the Justice Department. On February 6, Patrick Leahy, the ranking Democrat on the Judiciary Committee, asked Gonzales whether the NSA spying program includes authority to tap E-mail or postal mail without warrants. “Can you do black-bag jobs?” Leahy asked. Gonzales replied that he was trying to outline for the committee “what the president has authorized, and that is all that he has authorized”–electronic surveillance. Three weeks later, Gonzales amended his answer to Leahy’s question, stating that he was addressing only the legal underpinnings for the NSA surveillance program but adding: “I did not and could not address operational aspects of the program, or any other classified intelligence activities.” In the past, when Congress has taken up explosive issues that affect the bureau, Mueller has made it a point, officials have said, to leave Washington–and sometimes the country–so as not to get pulled into the political crossfire. When Gonzales testified February 6, Mueller was on his way to Morocco.

The FBI gets a bit twitchy about black bags.

For the FBI, the very mention of the term “black-bag jobs” prompts a bad case of the heebie-jeebies. In 1975 and 1976, an investigative committee led by then Sen. Frank Church documented how the FBI engaged in broad surveillance of private citizens and members of antiwar and civil rights groups, as well as Martin Luther King Jr. The committee’s hearings and the executive-branch abuses that were documented in the Watergate investigation led to numerous reforms, including passage of the Foreign Intelligence Surveillance Act in 1978. The law created a special secret court tasked with approving electronic wiretaps in espionage and other national security investigations. After the Aldrich Ames spy case, Congress amended FISA to include approval of physical searches. After 9/11, the law was further amended to allow investigators to place wiretaps or conduct physical searches without notifying the court for 72 hours and to obtain “roving” wiretaps to allow investigators to tap multiple cellphones.

Of course, that’s not flexible enough for the Bushies. But then there’s the little problem of trying to get convictions with illegal evidence:

White House lawyers, in particular, Vice President Cheney’s counsel David Addington (who is now Cheney’s chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials. Mueller, backed by Comey, resisted the administration’s efforts. “The White House was putting pressure on Mueller to broadly make cases with the intelligence,” says one official. “But he did not want to use it as a basis for any affidavit in any court.” Comey declined numerous requests for comment. Sources say Mueller and his general counsel, Valerie Caproni, continue to remain troubled by the domestic spying program. Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: “The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance.”

So what the hell is the point if you can’t get convictions?

Mueller has been criticized by some agents for being too close to the White House. His predecessor, Louis Freeh, made his break publicly from President Clinton, even returning his White House security access badge. Until recently, Mueller reported to the White House daily to brief Bush and Cheney. But Mueller has not shied away from making tough decisions. He refused to allow FBI agents to participate in CIA and Defense Department interviews of high-value prisoners because of the administration’s use of aggressive interrogation techniques. In Iraq and at the Pentagon-run camp for terrorism suspects at Guantanamo Bay, Cuba, it has been FBI agents who have called attention to what they viewed as abuse of detainees.

It is unclear how much resistance from the FBI the White House and the Justice Department will be willing to brook. What is clear, however, is the extraordinary extent to which officials in both places inject themselves in the bureau’s operations. In late 2004, President Bush asked then FBI Deputy Director Bruce Gebhardt, filling in for Mueller during the daily White House briefings, minute details about a suspected terrorism threat in Kansas. “Don’t worry, Mr. President,” responded Gebhardt, straight-faced. “We have Kansas surrounded.”

Chitra Ragavan also discusses the subject of a terrorism investigation who believes he was “black bagged.” For example, the subject had some run-ins with a man on his property who claimed to be part of a cleaning crew but who was, in fact, not cleaning.

On Friday’s Countdown, Keith Olbermann discussed the US News story with legal scholar Jonathan Turley. You can view the clip or read part of the transcript at Crooks and Liars. Sample:

Olbermann: (reading from a U.S. News & World Report press release) “Soon after the September 11, 2001 terror attacks, lawyers in the White House and the Justice Department argued that the same legal authority that the same legal authority that allowed warrentless electronic surveillance inside the US, could also be used to justify physical searches of terror suspects homes & businesses without court approval.”

Olbermann: Doesn’t that send chills down your spine?

Turley: Well it does. It’s horrific, because what that would constitute is to effectively remove the 4th Amendment from the U.S. Constitution and the fact that it was so quick as a suggestion shows the inclinations, unfortunately, of this administration. It treats the Constitution as some legal technicality instead of the thing were trying to fight to protect. …

… This is something to be very concerned about. These are not trivial matters. We’ve seen a sort of broad-based assault on basic Constitutional rights in our country since 9/11. We have a President who ordered electronic surveillance by the NSA without warrants in something that constitutes a federal crime. Congress isn’t even holding serious hearings on that. So we have a system that has checks & balances but none of them seem to be working. At the same time, as we noted earlier, we have an attack on the Judiciary itself, all of this should present a picture of concern for any American.

If I see anyone from the Right expressing concern about this matter (instead of expressing outrage at us lefties for hating America), I’ll let you know. Don’t hold your breath.