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August 22, 2006
Experts Fault Reasoning In Surveillance Decision

While Democrats may be rejoicing over last weeks decision by Carter-nominee Judge Anna Diggs Taylor that surveilling terrorists is unconstitutional, experts have been finding fault in her decision.

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

“It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

There' more.
Supporters of the program, disclosed by The New York Times in December, suggested that Judge Taylor’s opinion was as good a way to lose as any.

“It’s hard to exaggerate how bad it is,” said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor’s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2002 that said it took for granted that Congress “could not encroach on the president’s constitutional power” to conduct warrantless surveillance to obtain foreign intelligence.

This is the definition of judicial activism, and we may pay the price with our safety, security, even our lives, if this decision stands.

Posted by Matt at August 22, 2006 02:28 PM



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Comments

Um, since when did the New York Times' reporting mean anything to this blog?

King George got slapped down --- you're going to have to learn live with it. And he's gonna have to learn to follow the law every once in a while.

Posted by: maf53 [TypeKey Profile Page] at August 22, 2006 02:33 PM

typical lefty.. you'll find any way possible to ignore the content here. did you even read anything he quoted? people who agree with the decision still realize that the decision was faulty... and that faulty reasoning will likely result in the ruling being overturned.. which would be a victory for President Bush.. not to mention this country.

Posted by: KCJ at August 22, 2006 03:20 PM

I was born in the communist country but we love President Bush.He is example for the leaders of Communist should be studied.Mr Bush have brought
freedom for many people in the world.In my contry
we have not any freedom-Most power concentrated by
the communist-they treated vietnam people for many....many years now never chaged

Posted by: thienduongmu at August 22, 2006 03:38 PM

"King George"

Come on. Can you guys not get into an honest discussion without name calling or character assasination?

Have you considered the fact that he never broke the law? What if by chance you are wrong? If you were would you even have the character to admit it?

Don't you think that with the multitude of advisors the President has at his disposal that every move he makes is done within the parameters of legality? He doesn't have to look too far back in the past to see what happens when persons in positions of power such as his break the law. Are you not aware that he knows that the MSM or those that despise him (for no apparent reason) are just waiting and sometimes fabricating ANYTHING they can to make him look bad?

Often I get upset because the President doesn't call those who despise him on the carpet pointing out just how ridiculous they are, but his job is greater than that and of his responsibility, I know that he is keenly aware. In fact, I bet each day he faces the decision, "Do I focus on the security of our nation and the betterment of its citizens?" or "Do I answer the endless stream of nonsense about me in the media?" Thankfully for me (and you for that matter), he goes with the first.

Posted by: voiceofreason at August 22, 2006 03:40 PM

This is completely off the subject but... have others noticed that they can't comment on any topic posted prior to Aug 21? What's up with that?

Posted by: Ricorun [TypeKey Profile Page] at August 22, 2006 03:44 PM

Again, this is a lot of noise about nothing. Tell me when the SC makes the final ruling. Then listen to the silence. :)

Posted by: Gozer [TypeKey Profile Page] at August 22, 2006 03:45 PM

maf's "King George" comment is typical of the smug, smirky, simpering of the radical Left. It is what they do because they can't do anything else.

If they had facts, they'd present them.

If they had informtion, they would share it with us.

If they had legal precedent they would quote it.

But all they have is asinine name-calling.

They claim Bush is trying to claim regal powers, yet they can't cite any specifics.

They say Bush lies, but they can't quote any. Oh, they quote things he said and claim they are "lies", like the infamous 16 words in the State of the Union address. But when we point out that there was no falsehood whatsoever in those 16 words, they just smirk and simper and continue to reference that statement.

The lack of pride and dignity it takes to be a Lefty these days is truly astounding. It is no longer a political position based on political philosophy, it is a political position based on an irrational emotional spasm, which they then attempt to elevate to legitimacy by making spurious claims. The fact that none of these claims has ever survived rational scrutiny matters not----the goal is not be accurate, or in the right, but merely to FEEL some kind justification, no matter how fraudulent, for what is really a very base and disgraceful emotional defect.

The desperate need to hate is nothing to be proud of. The pathetic need to bully, even at a distance, is shameful. The acceptance of tactics such as slander, libel, name-calling, gleeful devotion to continual lying, and dogmatic refusal to accept the truth is a pathology, not a political stance. It's just a pathology which fits the Dem need to find followers anywhere----ANYWHERE---so they play to it. With the kinds of results we see so often in posts like maf's.

Posted by: Almiranta [TypeKey Profile Page] at August 22, 2006 03:58 PM

if this decision stands.

Matt, I don't think you have to worry about it. This decision flies in the face of too much precedent. The aftermath, however, could provide for some interesting political theater. If the decision is upheld in a higher court, even all the way to the Supreme Court, the Republican Congress will quickly pass legislation to overcome whatever shortcomings the courts think the program possesses. If the Donks oppose such legislation, they lose in November; if they don't oppose it, they'll be seen as the hypocrites they are, and if, by some unforseen fluke, they do win control of Congress in November and attempt to undo such legislation, it hurts them in 2008. Sounds like aces and eights to me.

Posted by: Retired Spook [TypeKey Profile Page] at August 22, 2006 04:00 PM

Tell me when the SC makes the final ruling. Then listen to the silence. :)

It's not gonna make it there, Gozer. The next court up will overturn the ruling, then "King George" can rest easy while he listens in on mf53 talking to his boyfriend.

Sounds like aces and eights to me.

That's the "dead man's hand," for you stupid trolls.

Spook, how are ya? There's folks over at the spoof Scrutator site who insist that you and I are the same person. lol

Posted by: keefer [TypeKey Profile Page] at August 22, 2006 05:01 PM

Tell me when the SC makes the final ruling. Then listen to the silence. :)

It's not gonna make it there, Gozer. The next court up will overturn the ruling, then "King George" can rest easy while he listens in on mf53 talking to his boyfriend.

Sounds like aces and eights to me.

That's the "dead man's hand," for you stupid trolls.

Spook, how are ya? There's folks over at the spoof Scrutator site who insist that you and I are the same person. lol

Posted by: keefer [TypeKey Profile Page] at August 22, 2006 05:06 PM

Hey, I did nothing in my power to double post. I don't know why two showed up, except that my comment was so profound, it needed to be repeated...

Posted by: keefer [TypeKey Profile Page] at August 22, 2006 05:16 PM

I agree keefer...the double post is an act of God against the stoopid trolls! Wouldn't you love to see maf53 and that Detroit (hair pulled too tight) putz of a judge, get on a plane bound from New York to London sometime...and watch them sweat their asses off for their asinine stance on this. They could sit side by side, with a swarthy young mideasterner at the window seat chanting softly...death to the infidels!! I too think King George ought to listen in on these conversations...if Maf has got a terrorist buddy on a foreign line, I would not even be surprised after his viewing his line of reasoning. Hell, King George ought to take all of his rights away for just being dumb...the Constitution doesn't address unpatriotic fools.

Posted by: dickdee at August 22, 2006 06:02 PM

This decision will ABSOLUTELY be overturned so don't worry about it.

Then all of the lefties here will scream that it's the conservative court that flipped it, even though they don't have the intellectual honesty to admit a far left wing lunatic judge ruled on it initially.

It will be overturned. Those bringing the suit have absolutely NO STANDING to even bring the suit.

Posted by: Warriornation [TypeKey Profile Page] at August 22, 2006 06:10 PM

I hope it will be overturned, but I was so shocked that campaign finance reform was upheld. I am pessimistic the SC will do the right thing.

Posted by: Porter Jervis [TypeKey Profile Page] at August 22, 2006 07:16 PM

*Shrugs*

I don't know keefer, unless they can some how prove that the plantiffs have no standing and hence no ability to appeal to a higher court I can see it going to the SC. While I do believe every court between here and there will strike down the current ruling, I don't think this will go away until the SC rules.

Again, let me know when that happens, until then I don't care.

Posted by: Gozer [TypeKey Profile Page] at August 22, 2006 07:34 PM

Gozer-

Again... I seem to be in agreement with you.

Posted by: Georgia Frawg [TypeKey Profile Page] at August 22, 2006 08:06 PM

*Chuckles*

Nothing wrong with agreeing with me Georgia, it won't hurt ya. ;)

Just like my agreeing with you doesn't kill me either. :p

Posted by: Gozer [TypeKey Profile Page] at August 22, 2006 08:25 PM

Have you considered the fact that he never broke the law?

Not according to this federal judge. You know, the one whose job it is to interpret the law? But that's right ---- according to the Bots, all newspapers, professors, lawyers, judges and historians are "biased" against Bush. In other words, all educated people. Who's next on your list, doctors?

They claim Bush is trying to claim regal powers, yet they can't cite any specifics.

That's funny. Apparently you missed the news of Bush's penchant for signing statements to ignore many, many laws. Bush has no interest in the Constitution, he has no intereset in the idea of checks and balances ---- hence the King George reference. So sorry if you are offended.

They say Bush lies, but they can't quote any.

Oh, boy. The entire Iraq Debacle is a huge lie, propogated by the Bush Crime Family. Iraq had ties to 9/11. Iraq is a grave and imminent threat. Iraq has weapons of mass destruction and we know where they are (that's my favorite). We will be treated as liberators. The war will be over in 3 months. The war will pay for itself. Yada, yada, yada.

It is high time for Bush and his cronies to get booted out of office. Impeachment all around. Put in that office a man who actually knows what he's doing ---- if he wants to get a BJ on the side, who the heck cares ---- what this country wants is somebody competent. Bush is a fraud but he has a little surface charm, and he's a Connecticut Cowboy who lives on a ranch and clears brush. He can't form 3 consecutive complete sentences, but this somehow appeals to a certain uneducated crowd, who somehow think this shows how "humble" the man is. He is not ---- he is the most incompetent, corrupt & arrogant man to take the office since ... well, probably Nixon. Great company to be in for sure.

Posted by: maf53 [TypeKey Profile Page] at August 22, 2006 08:42 PM

Not according to this federal judge. You know, the one whose job it is to interpret the law?

funny, that's not the liberal attitude towards the say of judges when it comes to rulings they don't like, such as Bush v. Gore.

Posted by: KCJ at August 22, 2006 08:51 PM

Still, mf5.3 quotes talking points, propagated by the DNC and drive-by media. None of the TPs he cited were accurate, yet in his moronic mind, he believes them.

What a tool...

Posted by: keefer [TypeKey Profile Page] at August 22, 2006 09:19 PM

Here we go again...the entire Iraq thing is a lie...well I guess Bill and Hillary lied about it, the British, the CIA, the Russians, etc, etc, etc.

Please, are you really going down that path again...you lose every damn time.

Posted by: Warriornation [TypeKey Profile Page] at August 22, 2006 09:20 PM

Gozer-

I dunno man, it might be more of a problem with you agreeing with me. People on this site (wrongly or not) seem to like to group me with the extreme liberals... you better watch out or they'll get to you too.

Posted by: Georgia Frawg [TypeKey Profile Page] at August 22, 2006 09:27 PM

*Chuckles*

No worries Georgia, I've earned my reputation here after being here so long. ;)

Now Maf, don't forget there are more judges and lawyers in this country who disagree with this one judge. Just because this one says he's breaking the law doesn't mean they all do. That's why I say this is much ado about nothing when the next several judges in line will most likely just strike this down. Though if you want to get happy about this go right ahead.

Worked with those exit polls and polls in general right? ;p

Posted by: Gozer [TypeKey Profile Page] at August 22, 2006 10:06 PM

Well I'll be....Judge Taylor is the secretary of the Michigan ACLU. Judicial Watch calling for Conflict of Interest investigation.

My, my, my. Aren't we all surprised.

http://www.judicialwatch.org/printer_5862.shtml

Posted by: Warriornation [TypeKey Profile Page] at August 23, 2006 12:26 AM

Should I feel guilty for setting a trap and then sitting back and watching maf leap into it headfirst?

Nah.

It was too much fun, though totally predictable.

But he accidentally said something that should be addressed---that all conservatives automatically dismiss all dissenting points of view on the intercepts. At least I think that's what he was trying to say.

But conservatives have, for the most part, agreed that there could easily be differing positions on the legality of the program. I've seen intelligent debates presenting opinions on both sides of the issue.

I've never had a problem understanding why some would feel it was problematic.

But when a situation like this arises, the only rational way to deal with it is to calmly and objectively lay out the arguments on both sides, evaluate them, and then make a choice of which side has the most compelling argument.

And the arguments on the Left have disintegrated into BDS paranoia and hate-mongering. We've seen it here, many times---a neorad posting that he doesn't really have trouble with monitoring international calls between terrorists, he just worries about the fact that it is BUSH doing it.

It appears that maf is acutally arguing that because there is not unanimity among "experts" the plan is automatically illegal. Hmmm. To extend that "logic" we would have to say that if one side in a courtroom disagreed with the other, the disagreeing side was automatically right. But it doesn't work that way.

The way it works is, both sides lay out their positions, their evidence, and their reasoning, and then make a case for each side. Then all of the evidence is weighed, and a decision is made for one side or the other. It does not require agreement between the two sides.

So after the positions, evidence, and argumenta are all laid out, in this case there is a necessary next step---to assess motivation. And it is clear that the motivation behind much, if not all, of the opposing side is simple political posturing.

This is pretty much proved by the Left's bland acceptance of arguments for presidential powers when made to support THEIR guy's actions, and the subsequent knee-jerk rejection of those same arguments for those same powers when the letter after the president's name changes from a D to an R.

Another major weakness in the Left's position is its dependence on the redefining of terms, such as "domestic" and "wiretap". When fraudulent terms are used, or terms are used fraudulently, the entire argument is undermined.

So, maf, get on a plane for London and explain that you don't NEED a passport, this is a DOMESTIC flight---based on the fact that one end of it is in the United States. That would be interesting. Because it is, by all reasonable definitions, an INTERNATIONAL flight, being between two countries.

And a communication between two countries is an INTERNATIONAL communication, NOT a DOMESTIC one.

You cheerfully regurgitated all the Dim talking points, maf, and in doing so proved the points I was trying to make when I set my trap---that this garbage is all you have, that you refuse to admit it is just garbage, and that you wouldn't care even if you did have to admit it, because you just love saying it.

Posted by: Almiranta [TypeKey Profile Page] at August 24, 2006 11:20 AM

BTW, the trap was the old stand-by, the "How Insane Is He?" model.

We can see how well it works....

Posted by: Almiranta [TypeKey Profile Page] at August 24, 2006 11:25 AM

Please report any inappropriate comments to abuse (at) blogsforbush (dot) com. Be sure to include the title of the blog entry, the name of the commenter, and the text of the offending comment.

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