Friday, October 27, 2006
THE ONLY THING TO FEAR...
THE ONLY THING TO FEAR...
The only thing there is for me to fear, amongst the living, is to lose my freedom. It is the only thing that makes me less than human. I cease to exit in my natural state by that condition; to only exist by the miracle of breath. There is nothing that can be worth it, I labor in vain. In truth, I may well be dead.
Two events have brought this consideration to the fore. (1) The Anna Diggs Taylor decision. (2) Bryan Cunningham's eager sycophancy camouflaged in the obscene critique of that said decision. It is very clear that his only reason for thinking he could get away with such condescension and derogatory commentary was because he felt secured enough that cover would be provided by his sponsors could provide and the obvious clout they wield over the mainstream media. He also figured, perhaps, that he could prey on a people's reasonable desire to live their life in peace and enjoy the comforts of their homes in quiet. I have never seen people make so much noise and still not say a thing.
Now, to what one of Bryan Cunningham’s favorite crooner calls "the who point of the Cunningham piece." Bryan’s contention rested on the fallacious assumption, I know many who said propaganda, that:
"the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an ‘exception’ to FISA’s warrant requirements.":
Annexed to the ridiculous:
"She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops."
"These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings."
You are either the lawyer you claim to be, Bryan, or you are not.
What Cunningham fails to show is the legal mechanism by which such evidence, when gathered, will be examined. Bryan understands and knows, or ought to know, that to examine such evidence or to hold substantive hearings would mean falling into the legal quagmire that Laird constitutes. Conspicuously subdued, he fails to cite any authority to display his juvenile assertions. In Laird, it was held that jurisdiction of a Federal court may be invoked by a complainant who alleges that the exercise of his first amendment right is being chilled by the mere existence, WITHOUT MORE, of a government and data-gathering activity (emphasis mine). That is to say, by virtue of its mere existence, no more no less, it chills the individual's first amendment right. To ensure standing, you must show that by the simple existence of that project your first amendment right is in jeopardy. You may not excavate or dig because government will find the cover of TSP. TSP is the privilege that shields government from revealing state secrets. Now, every time you feel violated by government snooping and go in search of legal redress, government may simply claim it would require them to reveal state secrets. By invoking this legal privilege, the courts may lack jurisdiction to inquire into your complaint and to remedy your grievances. And this is the crux of the matter, Bryan appears to assume that it is sufficient to merely assert that it compels them to expose state secret and that once it is said, court jurisdiction is ousted. Judge Taylor seems to think not.
And you guessed it, government rushed to court with its legal dodge, to declare that the state secrets privilege bars Plaintiffs' claim because Plaintiffs cannot establish standing or a prima facie case for any of their claims without the use of state secrets. They further argued that they could not defend the case without revealing state secrets.
Judge Taylor disagreed with government on the grounds that "non-justicability" was not applicable (El-Masri v. Tenet, Totten v. United States et al.) because the Plaintiffs were not seeking to expose government secrets but to show that TSP by virtue of its mere existence was causing them severe injury. In settling this, the learned judge cited and reviewed about a dozen cases, which I considered superfluous, to embed her decision that:
" In sum, the court holds that the state secrets privilege applies to Plaintiffs’ data-mining claim and that claim is dismissed. The privilege, however, does not apply to Plaintiffs’ remaining claims challenging the validity of the TSP, since Plaintiffs are not relying on or requesting any classified information to support these claims and Defendants do not need any classified information to mount a defense against these claims."
Her reliance was by way of Ellsberg v, Mitchell, 709 F.2d@68, in which the court held:
"When properly invoked, the state secrets privilege is absolute. No
competing public or private interest can be advanced to compel
disclosure of information found to be protected by a claim of
privilege. However, because of the broad sweep of the privilege, the
Supreme Court has made clear that “[i]t is not to be lightly invoked.”
Thus, the privilege may not be used to shield any material not strictly
necessary to prevent injury to national security; and, whenever
possible, sensitive information must be disentangled from
nonsensitive information to allow for the release of the latter."
That done, the next question was the consideration of standing. Government argued that Plaintiffs did not establish their standing, that their contention was merely a subjective fear of surveillance which falls short of the type of injury required to show standing. Again Judge Taylor goes through a battery of ten cases to determine if in fact Plaintiffs had established standing according to strict standards of
Presbyterian Church Vs U.S Gov-870 F.2d 518,) which qualified Laird by establishing the relevant distinction required to meet standing, to wit: that the plaintiffs were not merely alleging that they could conceivably become subject to surveillance under the TSP but that its continuation has in fact damaged them.
She found that the injury and conduct complained of was fairly traceable to the challenged action of the defendants (government), observing that:
"The TSP admittedly targets communications originated or terminated outside the United States where a party to such communication is in the estimation of Defendants, a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates. The injury to the Plaintiffs stems directly from the TSP and their injuries can unequivocally be traced to the TSP."
Having established this nexus therefore, the learned judge concluded that:
(1) "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,) (plurality opinion).
We must always be mindful that:
(2) “[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,).
(3) “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,) (Kennedy, J., concurring).
And then she concludes:
“Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given to challenge it, because each of them, is injured and chilled standing substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no
victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless. Plaintiffs have sufficiently alleged that they suffered an actual, concrete injury traceable to Defendants and redressable by this court. Accordingly, this court denies Defendants’ motion to dismiss for lack of standing."
To illuminate, the learned judge delved into the tortuous history of electronic surveillance in America and reviewed over half a dozen cases in the process of her illumination. They included U.S v, U.S District Court where it was held:
"... that, for lawful electronic surveillance even in domestic security matters, the Fourth Amendment requires a prior warrant."
She noted that:
"In 1976 the Congressional 'Church Committee' disclosed that every President since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses, and in 1978 Congress enacted the FISA."
And this is where I take very strong exceptions to Bryan Cunningham's seeming ‘legal’ pretext and intellectual contamination. What Judge Taylor said, and herein follows her exact quote, was:
"The FISA defines a “United States person” to include each of Plaintiffs herein and requires a prior warrant for any domestic international interception of their communications. For various exigencies, exceptions are made. That is, the government is granted fifteen days from Congressional Declaration of War within which it may conduct intercepts before application for an order. It is also granted one year, ON CERTIFICATION BY THE ATTORNEY GENERAL, and seventy-two hours for other defined exigencies." (emphasis mine). That seventy two hours was not said to be EXCLUSIVE of the Attorney General's certification as Bryan Cunningham would want his perceived gullible audience to believe. For clarity, Judge Taylor emphasized that:
"The FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment. It is fully described in United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), where the court held that FISA did not intrude upon the President’s undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this country, as ‘United States persons.’ Id. at 1312."
The conclusion, therefore, could not be anything but obvious:
"Against this background the present program of warrantless wiretapping has been authorized by the administration and the present lawsuit filed."
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized."
Delving extensively into the merits of Entick v, Carrington and quoting Justice Douglas and Powell profusely, Judge Taylor maintained that:
"The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the power to search would not continue in our new nation."
The First Amendment provides that:
"Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances."
Judge Taylor, in her finest hour, noted that:
"... FISA explicitly admonishes that '. . . no United States person may be considered . . . an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the Constitution of the United States.'" 50 U.S.C. §1805(a)(3)(A). See also United
States v. Falvey, 540 F. Supp. at 1310.
And after considering Justice Powell in the Keith case, to wit:
"National security cases, moreover, often reflect a convergence of
First and Fourth Amendment values not present in cases of ‘ordinary’
crime. Though the investigative duty of the executive may be
stronger in such cases, so also is there greater jeopardy to
constitutionally protected speech. ‘Historically the struggle for
freedom of speech and press in England was bound up with the issue
of the scope of the search and seizure power,’ (citation omitted).
History abundantly documents the tendency of Government–however benevolent and benign its motives–to view with suspicion
those who most fervently dispute its policies. Fourth Amendment
protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political
beliefs." U.S. v. U.S. District Court, 407 U.S. at 313-314.,
Judge Taylor was certain to find and conclude that:
"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."
In considering the Separation of Powers doctrine, Judge Taylor noted that:
"The Constitution of the United States provides that '[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . .' It further provides that “[t]he executive Power shall be vested in a President of the United States of America. ' And that '. . . he shall take care that the laws be faithfully executed . . .' "
In expatiating, she noted Justice Jackson's concurring opinion in Youngstown stating that he wrote;
"... the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers. Youngstown, 343 U.S. at 636-638.
“when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any
Constitutional powers of Congress over the matter.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
And she very well notes Justice Jackson's conclusion:
"With all its defects, delays and inconveniences, men have discovered
no technique for long preserving free government except that the
Executive be under the law, and that the law be made by
parliamentary deliberations." Youngstown, 343 U.S. at 655 (Jackson,
It is clear, as Judge Taylor pronounced, that:
"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...In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year period."
She observed that the government of the United States
"... argues here that it was given authority by that resolution to conduct the TSP in violation of both FISA and the Constitution."
That resolution being The Authorization for Use of Military Force (AUMF) which states:
"That the President is authorized to use all necessary and appropriate
force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international terrorism
against the United States by such nations, organizations or persons."
She noted that:
"the AUMF says nothing whatsoever of intelligence or surveillance."
"Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable. Indeed, the government here claims that the AUMF has by implication granted its TSP authority for more than five years, although FISA’s longest exception, for the Declaration of War by Congress, is only fifteen days from date of such a Declaration."
She drew further legal inspiration from Hamdi, 542 U.S. at 533 (citing Cleveland Board of Education v. Laudermill, 470 U.S.). Here Justice O'Connor asserted that:
"It is during our most challenging and uncertain moments that our
Nation’s commitment to due process is most severely tested; and it
is in those times that we must preserve our commitment at home to
the principles for which we fight abroad. Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short." Hamdi, 542 U.S. at 532, 537.
Judge Taylor in her judicial eloquence insisted that:
"Under Hamdi, accordingly, the Constitution of the United States must be followed. The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine."
Federal Judge Anna Diggs Taylor observed and acknowledged, with complete judicial distinction, that:
"The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he 'will, to the best of my ability, preserve, protect and defend the Constitution of the United States.' "
"The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself."
"... the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."
Whereas Ex Parte Milligan teaches the
"Constitution of the United States is a law for rulers and people, equally in war and in peace... ”
"...in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power."
After finally disposing of practical justifications for exemptions, Judge Anna Diggs Taylor finally arrives at what was an exceptionally tortuous and exceptionally considered decision, to wit:
"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. The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S.). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution. As Justice Warren wrote in U.S. v. Robel, 389 U.S.):
Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile."
A remarkable woman, Judge Anna Diggs Taylor. At seventy-three, her intellectual stamina is outstanding and all encompassing, as I never tire to tell my associates and friends;
”She is the glowing testimony of American intellect and a most reassuring tribute that stands out against its severely hampered international relations and domestic affairs.”
The issue as I see it is that of constitution-hijack and the remedy of true constitutionalism. A false flag ‘precedent’ which has dubiously allowed an already very powerful president to void his accountability to the good American people that voted him into office. Bryan Cunningham must have hoped that she would become enmeshed in the pitfalls of Laird and that the tediousness of breaking her ruling down in everyday-speak would overwhelm many, but he figured wrongly. This expose is dedicated to the exposure of his intellectual folly and its dubious origins but more importantly to the towering stature of a most magnificent woman and her selfless commitment to jurisprudence. The incandescence of the true woman of substance; dignified, courageous, graceful and exceptionally blessed.