Notice how the article wrongly calls this a ‘domestic spying’ case.

Who was it says:

“Lefties lie. It’s all they have.”

Actually he should be going blind about now. They’re keeping it secret so it doesn’t hurt Shrillary’s campaign.

jpe. I used to think that all judges were impartial. In the last thirty years, I have come to the conclusion this is not the case. I would like judges to be strict constructionists, not wantabees as part of the legislature.

One can certainly argue that Gilman’s standing analysis was weak inasmuch as it broke with existing precedent, but I didn’t see either a) a desire to let the merits dictate the standing analysis*; or b) a deviation from strict construction…

…Gilman, Batchelder, and Gibbons reflect the favored policies of their respective jurisprudential leanings, rather than their particular feelings about the legality or wisdom of the warrantless wiretap program.

JPE,

I couldn’t disagree more with your analysis of Gilman’s dissenting opinion. And you seem to have anticipated my argument, for I see no other conclusion but that Gilman’s extraordinary analysis of the standing issue was precisely because he could not countenance not getting to the merits. Indeed the first paragraph of the introduction to his opinion states,

Moreover I would affirm the judgment of the district court because I am persuaded that the TSP as originally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).

Gilman’s on a mission, and not about to be deterred by the question of standing. By Gilman’s standards, one need not actually prove injury to establish standing. One need only demonstrate a feeling that one has been injured, or may be. As is so often the case in liberal dicta, its the thought that counts. Clearly, Gilman knows where he’s headed.

Another indication is Gilman’s curious references to the “Bush administration” in his opinion. This is odd, breaking with both judicial tradition and judicial courtesy. Judicial rulings normally refer to either “the government” or to a specific agency or individual by name and title. Gilman’s repeated reference to the “Bush administration” (five times by my count) is informative of his predisposition, and his eagerness to get around the question of standing for the express purpose of getting to the merits and expressing his deep feelings thereon. Obviously the illegality of the NSA program is foremost on his mind.

As to that issue, Gilman once more takes a curious approach to the questions before him.

His starting point, as one might expect, is the “illegality” of the NSA program (TSP) and his conclusion that,

…the TSP violates FISA and Title III and that the President does not have the inherent authority to act in disregard of those statutes.

Gilman does not examine the competing contentions and evidence and then draw his conclusion according to what is presented. Like the Red Queen in Alice in Wonderland, and Judge Anna Diggs Taylor before him (whose pitifully constructed opinion Gilman is ever so scrupulous to avoid — unlike Taylor, Gilman is no dummy), Gilman will have his conclusion first, and then worry about supporting his version of the truth.

Gilman spends much time discussing the legislative history of FISA, concluding that the government’s contention that AUMF supersedes FISA’s statutory requirements is simply wrong. He likewise dismisses the argument that the President’s inherent authority also supersedes the statutory limitations imposed by the 30 year old FISA.

…FISA itself expressly and specifically restricts the President’s authority even in times of war… FISA thus limits warrantless electronic surveillance to the first 15 days following a declaration of war…

But if the President’s inherent authority derives directly from the constitution, specifically from his designation as the nation’s Commander-in-Chief, as claimed, then that power cannot be overturned or diminished by Congress legislatively… any more than a president can unilaterally declare war on his own authority.

Thus Gilman focuses on the statutory requirements and avoids addressing the key source of the claimed inherent authority. This is odd, because the primary precedential case regarding FISA, In Re: Sealed Cases acknowledges the president’s inherent authority, but declines to answer this very question:

Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant statutes, certainly come close…

In other words, the President’s inherent authority is already judicially established, Judge Gilman not withstanding.

So, if the authority is inherent, can Congress then diminish legislatively power bestowed by the Constitution?

As noted, Gilman is no dummy. He knows that if he asks or acknowledges the question he must then answer it. So Gilman, appointed to the appellate bench in 1998, responds in ironic deference to his liberal patron: Don’t ask… Don’t tell. A truly Clintonian solution.

Judge Gillman is ready to again ignore proper procedure, stating that he would rule in favor of the plaintiffs because he believes the NSA program is a violation of FISA.

How about some citation for that counter-intuitive position? Gillman goes about his decision in standard form: standing then merits. (of his 25 pg opinion, the first 17 are devoted to standing analysis).

I know it must feel good to get yourself all worked up about this, but some peripheral contact with the facts is generally advisable.

I think that it’s funny that the left is starting to complain about the Make up of the supreme court and how they have to win the next election and that what is happening to this country as a result of Bush being able to pick supreme court justices. I think it’s funny that none of these people complained with Clinton was stuffing the court with lefties.

I am fairly sure that wasn’t the only thing he was stuffing!

I think the winning strategy against terrorism will be very much like Hiroshima/Nagasaki, which ended WWII by wiping out the Japanese military fanatics

I’m intrigued! Who’s gonna get it?

Well that point the war was for the most part won. The Japs were in denial. The nukes woke them up out of that denial. The choice was between a long, drawn out struggle to assure final victory at tremendous cost, or a swift end to things. IMO, the jihadis are in denial; they think they can bring back their “glory days” when they were slaughtering their way across Asia, the ME and Europe. Ain’t gonna happen.

I don’t think they wiped out the Japanese Military fanatics. I think you would have had to wipe out that Jap military to do that. It happened; read up on it. The issue was the fanaticism in the general population which was engineered by the fanatical military. Just like the jihadis of today.

In any sort of civil suit, the very first issues addressed by the court are justiciability and standing. Does the court have the authority to address the questions being raised in this case, and do the plaintiffs raising those questions have the legal permission, or standing, to do so. Only when those two questions are answered affirmatively can the court proceed to the specific issues at hand and the evidence presented.

That proper sequence is important in any case, but particularly in this case because the original decision by Carter appointee Judge Anna Diggs Taylor, quite possibly the most convoluted, ineptly reasoned, and poorly constructed opinion since Dred Scott v. Sanford (1857), addressed neither the question of justiciability nor that of standing. Instead, she started with the conclusion that the NSA program was illegal and needed to be stopped regardless.

While two appeals court judges followed proper judicial procedure is dismissing the case for lack of standing, Judge Gillman is ready to again ignore proper procedure, stating that he would rule in favor of the plaintiffs because he believes the NSA program is a violation of FISA. In other words, Judge Gillman has it exactly backwards, and would do exactly what the plaintiffs in this case have accused the president of doing, over-reaching his proper legal authority to accomplish a specific purpose.

The difference between how conservatives approach the court system (the very same rules apply to everyone and to all cases) and how liberals approach the court system (the end justifies the means) could not be more blatantly displayed.

This isn’t just a victory for the Bush administration. It’s a victory for the rule of law.

Man: You are being disingenuous; you specifically questioned the temporary suspension of civil rights in order to win a war, and WWII is a specific example of that being successful and of the rights being restored after the war was won. It happened just that way, so please address the facts instead of trying to distract with some BS. It is completely relevant to today; many rights were amended or suspended during WWII, with none of the self-indulgent carping we hear today. We won, and the rights came back, in spades. You are wrong. It’s the way to win.

you specifically questioned the temporary suspension of civil rights in order to win a warWrong, I questioned the suspension of civil rights in order to win the War on Terror(ism), see the quote above from Michael Savage made by Robin Crenshaw, and WWII is a specific example of that being successful and of the rights being restored after the war was won. True, but the War on Terror(ism) is not, in any large way, like the Second World War It happened just that way, so please address the facts instead of trying to distract with some BS. I think in fact you are trying to distract, by accusing me of lying. It is completely relevant to today I disagree; many rights were amended or suspended during WWII, with none of the self-indulgent carping we hear today. Indeed, but they hadn’t lived through your tremendous wave of prosperity like we have We won, and the rights came back, in spades. You are wrong. It’s the way to win.But can we live without our civil liberties for 30, 40 or 50 years?

Robert: My fear is that the Democrats and their natural anti-America allies the MSM will seriously hinder our ability to take on this enemy and prevail.
I hope I am wrong!

That has been going on since about two weeks after 9/11; the collectivists’ “divide and conquer” strategy is hindering our efforts in many areas, not just the war. They will continue to do so, until they are voted out of office, disbarred and unseated in the courts, and go broke trying to disseminate propaganda in the media. It’s up to the real Americans to stand up and resist them.

Neiman: As we have seen since the ’06 elections, the only leadership worse than the Republicans is the Dems. At least the Republicans understand free enterprise economics; the Dems want collectivism. That is clearly unAmerican.

Robert108: With all due and sincere respect to you, MOFAL is right about winning the war on terrorism. This will be a long and bitter series of terrible battles, wherein millions of innocents are killed. Why? Besides the nature of Islam, it is because we (Democrats/Republicans and non-Islamic nations) are not willing to fight this war together on multiple fronts. This is the Truth:

“As long as religious fanatics are willing to die killing innocents, we will be at war, so we will not get these civil rights back any time soon.” This is not WW-II, it is a protracted global war against violent religious extremists willing to not only kill innocents, but die in suicide attacks for their cause. Lastly, unlike Japan or Germany, there is no nation we can bomb into submission, hell they live in your neighborhood.

The War on Terror(ism) won’t be won with Iraq, nor Afghanistan. As long as religious fanatics are willing to die killing innocents, we will be at war, so we will not get these civil rights back any time soon.
You are wrong.

R108, the events of sixty years ago do not bear much similarity to current events. What makes you think that the War on Terror(ism) can be won in any way like WW2? I would postulate that it will play out more like the cold war – continuing for a generation.

I think the winning strategy against terrorism will be very much like Hiroshima/Nagasaki, which ended WWII by wiping out the Japanese military fanatics.

Well that point the war was for the most part won. The Japs were in denial. The nukes woke them up out of that denial.

I don’t think they wiped out the Japanese Military fanatics. I think you would have had to wipe out that Jap military to do that.

That would be me

Ah! I knew I’d heard it somewhere!