I always laugh about how some decision like this from a Federal judge comes down and it’s “A FEDERAL JUDGE SAID TODAY…”, like a decree from the heavens. By the time it goes through the appeals court process and ultimately to the Supreme Court the original FEDERAL JUDGE looks as significant as, oh say, me writing on a blog.

RW_theoriginal on August 17, 2006 at 9:21 PM

I have been concerned for a long time because I can see the courts and the Congress in recent decades trying to remove the last vestiges of the doctrine of Separation of Powers and three Separate but co-equal branches on government in this country.

Because of the War Powers act SCOTUS has in our history only voiced an opinion on one occasion with Truman; but with FDR and his incarceration of Japanese Americans and Lincoln with suspension of the need for a Writ of Habeas Corpus and other presidents during a time of war, they have always made it clear they must keep out of the war powers of a sitting President.

Now with Bush several courts, including SCOTUS have stepped in to limit the Executive Branch’s War Powers, and the Congress have passed laws limiting the powers of a President to conduct a war without every detail meeting their approval and their definition of the Constitution. If under the enumerated powers of the Executive Branch to conduct a war that has been authorized by Congress, the President must now submit to such legislation limiting those powers, then we no longer have three separate but equal branches; rather, we have a super-legislative Judicial Branch and a Super-Executive Congress; and the President is no more than a figurehead, and the Executive Branch is wholly subservient to both the Judicial and Legislative branches and the Constitution has been thus amended, absent even the Constitutionally mandated Amendment process.

Now I am sure the liberals like this idea, because they are the anti-war, appeasement party; but it is a violation of the United States Constitution. Look it up, the founders gave us a Representative Republic with three ’separate but equal’ branches of government; and if the President is now subservient to both the other branches in his Constitutional War Powers, then we no longer have the government our Founding Fathers designed.

Umnumzana on August 17, 2006 at 9:22 PM

For my part, let me say this: I’m not a lawyer or constitutional scholar, but because of my training as an electronic surveillance operator while in the Marines, I do know this one small subset of federal law quite intimately. And the only crime I can identify here in this entire fiasco since publication in the NYT last December is the illegal disclosure of classified info to the media, an entity never authorized to receive such.

Or was that too hopelessly reactionary? I’m not grokking the point of your post AP. It was a bit jumbled, and filled with references I didn’t get. Not sayin’ it’s your fault… I just don’t grok.

Kadnine on August 18, 2006 at 1:49 AM

There seems to be some confusion about the courts here.

I’m not an attorney, but I have more than some passing understanding of the relationship of federal judges, the district court of appleals, and the Supreme Court.

Judge Taylor’s decision is binding ONLY in her court. That is to say, no other federal judge is required to follow her ruling. Rarely are a district court trial judge’s opinions considered to apply beyond the plaintif and defendent named in the case. An identical case could be heard tomorrow by another judge and the ruling could go the other way.

The appellate court for the district hears appeals from the district courts and also adjudicates conflicting any decisions. That is the next step in this case. Usually 3 appellate judges hear an appeal. A decision of the appellate court (in this case the 6th US District) is binding upon all courts in the district. All district courts in the district are required to accept the ruling as precident. Appellate decisions may also be used as precident for cases in other US districts.

A decision of the appellate court can be reheard by all the appellate judges in the district if the losing party wishes the case to be decided “en banc” (which means by the entire bench, not just 3 judges).

An en banc decision can over rule the 3 judge one or uphold it. In either case, the decision is binding within the district, and may be cited as precedent in other districts.

The next court is the US Supreme Court. The Supreme Court is the only court actually defined in the US Constitution. The lower courts and the US Districts were created by Congress under Article 3 as “inferior” courts.

In Marbury v. Madison (1803), the Court gave itself the SOLE power to determine whether or not a law is Consitutional, while at the same time noting that the Executive Branch is specifically prohibited from enforcing laws that is unconstitution.

Specifically, the court held:

…a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

[As an interesting side note, up until shortly before the Civil War, the Supreme Court Justices rode a district court circuit and heard DISTRICT cases as trial judges.]

USSC decisions are binding on all other courts, both federal and state (thanks to the 14th Amendment).

Judge Taylor’s decision conflicts with an appellate court outside the 6th District in this issue, namely one heard by the FISA Court of Review: FISA Court of Review, In re: Sealed Case No. 02-001, which stronly upholds the President’s power to order warrantless wiretapping and searching. To wit:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Some of the other cases that the courts that have decided the issue are:

Katz v. United States, 389 U.S. 347 (1967).
United States v. United States District Court (Keith) (1972).
United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970).
United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974).
United States v. Humphrey (1978).
United States v. Buck, 548 F.2d 871 (9th Cir. 1977).
United States v. Duggan, 743 F.2d 59 (1984).

All of these explicit cite the President’s power to obtain foreign intelligence without the necessity of obtaining a warrant.

As others have noted, Judge Taylor is simply ignoring the precedents.

I can not imagine Taylor’s decison NOT being overturned by the appellate court.

Given the egregious behavior of Judge Taylor in this and other cases, methinks it is time for the House and Senate to impeach and remove Judge Anna Diggs Taylor for cause: refusing to uphold the Constitutiion as determined by the US Supreme Court.

georgej on August 18, 2006 at 7:30 AM

Thank you.

I had to search Findlaw, Cornell, the US Supreme Court’s archives, and Lexis, but the caselaw is available. Each and every case I’ve cited above can be found on-line. You can view the text if you use google to find them.

I do not have the transcript or the briefs for the trial before Judge Taylor, so I can’t say with certainty whether the government cited of these cases, but I would be surprised if they weren’t.

You know as well as I do why the media has “blackholed” this information. It doesn’t advance their agenda if Bush is upheld by the courts.

georgej on August 18, 2006 at 10:23 AM

I really, really dislike people who wanna play politics while muslim madmen are constantly probing for the tiniest crack in our defenses so they can butcher as many Americans and westerners as they can. Should we ever get hit again, anyone and anything that may have made it easier to kill Americans should be tried and executed for treason leading to the murder of innocents.

ACLU, judges, politicians, leakers, NYT …. take heed.

darwin on August 18, 2006 at 10:39 AM

ACLU, judges, politicians, leakers, NYT …. take heed.

They won’t - all they’ll do is blame our violations of civil liberties, lack of respect for other nation states, lack of patience, unilateralist views and xenophobic mentality on why we got hit.

There will probably be some that take it even further and accuse us of fabricating any more attacks as part of our ongoing efforts to continue a non-existent war and make the U.S. a police state (whose sole purpose is to violate civil liberties).

Rick on August 18, 2006 at 12:20 PM

We so badly need judicial reform in this country. You simply cannot have 3 equal branches of government when those in one branch have lifetime appointments with no consequences of their decisions. We need to:

- eliminate lifetime appointments, requiring judges to be re-confirmed on a periodic basis (e.g., like the Fed chairman).

- allow some sort of limited judicial review process by congress and the president which allows the overriding of judges on decisions like this. Yes, I know we have an amendment process that can theoretically overturn some judicial mischief, but that is simply not practical in situations like the one that started this thread.

- require judges to periodically face hearings in front of congress where they are required to publically defend their opinions.

I understand why the founders set up the system the way they did, wanting to insulate judges from politics. But it is painfully clear now that they are not insulated from politics. Instead, they are only insulated from facing the consequences of their decisions, and as such, they are abusing their power in ways the founders would never have anticipated.

thirteen28 on August 18, 2006 at 1:32 PM

We may want to take a good look at the Legislative branch as well. Congress should have term limits - some of these people live in a bubble (ala Ted Kennedy and Joe Biden - to name a couple that have been around some time).

Absolutely!!

thirteen28 on August 18, 2006 at 4:46 PM

Before term-limiting any Supreme Court Justices, you would do well to understand the founders reason for making the position lifetime. It is cleary to prevent justices from being swayed by majority pressures, precisely to avoid them becoming politicians that change their mind based on which way the wind blows. Read de Tocqueville’s Democracy in America. This is one of the best places to find information regarding the founders vision for our Republic as well as their reasoning behind the structure our government and its three branches.

RobertCSampson on August 19, 2006 at 12:02 AM

Before term-limiting any Supreme Court Justices, you would do well to understand the founders reason for making the position lifetime. It is cleary to prevent justices from being swayed by majority pressures, precisely to avoid them becoming politicians that change their mind based on which way the wind blows. Read de Tocqueville’s Democracy in America. This is one of the best places to find information regarding the founders vision for our Republic as well as their reasoning behind the structure our government and its three branches.

RobertCSampson on August 19, 2006 at 12:02 AM

Bravo!

honora on August 19, 2006 at 12:57 PM