By now you've heard about the ruling by Detroit U.S. District Court judge Anna Diggs Taylor saying the NSA wiretapping is unconstitutional. On the flip, I give you some choice quotes from her ruling. Oh this is fun...
The judge here wrote some good things. You can read the
full PDF or read the bits I've pulled out here. All emphasis is mine and I've removed some of the endnote references.
The boiled-down opinion she makes in hearing the case:
This court finds that the injuries alleged by Plaintiffs are "concrete and particularized", and not "abstract or conjectural." The TSP is not hypothetical, it is an actual surveillance program that was admittedly instituted after September 11, 2001, and has been reauthorized by the President more than thirty times since the attacks. The President has, moreover, emphasized that he intends to continue to reauthorize the TSP indefinitely. Further, the court need not speculate upon the kind of activity the Plaintiffs want to engage in - they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging "actual or threatened injury" as a result of Defendants' conduct.
And then she really hits home:
...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."
Gotta love how she used Clinton v Jones here. Smack them neocons...smack, smack! It's almost like she's hoping the Plaintiffs decide to directly sue the President.
She goes on to say:
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.
Remember all those political cartoons calling Bush King George?
Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants.
...
We must first note that 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.
It's interesting reading, and I think she supported her argument well. She backed up her claims with references to previous cases, sometimes using cases that had been praised by conservatives.