Judicial Watch says NSA judge might have had conflict of interest
posted at 9:05 pm on August 22, 2006 by Allahpundit
Gateway Pundit’s all over it. Here’s the press release at JW. Oh, how the lefties will howl. And oh, with what relish they’d be working this themselves if it had been a Republican judge and the decision had gone the other way.
You shouldn’t need a money trail here to make you believe she was inclined towards the plaintiff. The opinion speaks for itself. But if there simply must be score-settling, this is where it’ll come from. Note in particular Canons 2A, 3C(1)(d)(i) and 5(B)(1). The twist is that she’s not a trustee of one of the parties; she’s a trustee of an organization that helped fund one of the parties. One step removed. Thus it’s a question of the spirit of the law versus the letter. From the commentary for Canon 5(B)(1):
The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the judge’s relationship with it. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.
Be sure to read to the end of GP’s post. This isn’t the only case she’s been assigned to with a grantee as a party.
She’ll probably walk.
Update: Patterico thinks it’s no big deal, particularly when compared to some of her other ethical “idiosyncracies.”
Update: E.M. agrees with Patterico:
Interestingly, the New York Times views this as no big deal–and to be truthful, in the grand scheme of Judges-who-do-strange-and-vaguely-objectionable things, its not a big deal, though really, Judge Diggs should have disclosed this tidbit before she decided to take a case from an organization that clearly had no ability to bring one. Lots of judges serve on lots of Boards who direct lots of funds to strange places. As minor legal celebrities, they provide a little bit of legitimacy to an organization, and can drive up the price of Pancake Breakfast tickets in a heartbeat. Frankly, the fact that she tried to steal a case from Bernard Friedman just so she could rule on it, and was appointed by Jimmy Carter (of all people) should have really been the flashing Blue Light on her political idealism and her ability to be impartial, not her extracurricular activities.
Blowback
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Surpriiise Surpriiise Surpriiiise!!! OMG!~ Judges can be impeached, can’t they? How bald-faced does it have to be before words like “may” and “allegedly” can be dropped?
GP’s post: (Judge Diggs Taylor is also the presiding judge in another case where she may have a conflict of interest. The Arab Community Center for Social and Economic Services (ACCESS) is a defendant in another case now before Judge Diggs Taylor’s court [Case No. 06-10968 (Mich. E.D.)]. In 2003, the CFSEM donated $180,000 to ACCESS.)
Well, Recuuuse Me!
/sarc
Benthoven on August 22, 2006 at 9:43 PM
Now there’s a twist: the plaintiff didn’t buy off the judge; the judge bought off the plaintiff!
Let the bon temps roll…
RD on August 22, 2006 at 9:51 PM
RD, you inspired me :)
La vie en rose…
Bonne chance!
Bonne vivant?
Bon temps?
Bonne idée?
Bon voyage!
Entelechy on August 22, 2006 at 10:20 PM
*sigh* Entelechy!
“la vie en rose?” *LOL*
C’est :
Si vous vous couchez avec les chiens que vous se levez avec les puces La Loi n’est pas à vendre
En Englais: If you lie down with dogs you get up with fleas. The Law is not for sale.
labwrs on August 22, 2006 at 10:35 PM
Hopefully “bon” impeachment and “au revior, tres vite”…
RH
RobertHuntingdon on August 22, 2006 at 10:38 PM
Absolutement RH!
Basically, get lost and dont let the door hit you in the rear (liberties taken!) :)
labwrs on August 22, 2006 at 10:42 PM
Who was the last Judge to be impeached?
For a serious ethical lapse like this (non disclosure of a conflict of interest on a very important case) it seems to me to be worthy of an investigation at least. But, like Allah said, probably not
: (
gmoonster on August 22, 2006 at 10:57 PM
Mon amie labwrs,
I’m glad I inspired you to practice :)
Ah, yes, la vie en rose – my grandma also said “the bear goes on the ice to dance, when he/she has it too good”.
Hoping that someone will investigate the judge further and the ice will crack some more…
Entelechy on August 22, 2006 at 11:34 PM
Yes, Judges can be impeached. Or at least beaten with a bag of peaches (jez kiddin).
Ah to be a peanut farmer again. Just like Ol Jimmy, he’s sowed the judicial fields with what the farmers want, but don’t have enough of.
Kini on August 22, 2006 at 11:49 PM
This warrants (pun intended) people looking into it… which looks to be well underway.
Anyway, it’s looking like her decision (whose conclusion I support) was argued poorly, so it’ll probably be overturned. I’m a rule of law type, so while you’ll still find me supporting a cessation of warrantless wiretaps and warrantless seizing of call logs, I won’t fight for a poorly argued decision. Refile and try to get a judge who has the brain (and mettle) to work out:
Gonzales:
The administration believes that the authorization by congress to use force against al Qaeda permits them to listen in to phone calls of Americans with foreign persons without a warrant, catalog the call logs of millions of Americans, including purely domestic calls, and search through international financial transactions without a warrant. All this despite the fact that there are channels in place for getting these warrants. FISA is a rubber-stamp court, but apparently a rubber stamp is too much of an impediment for the administration. Maybe it’s just the fact that even a rubber stamp leaves a trail of accountability.
The administration thinks that Congress gave them carte blanche to fight al Qaeda. They believe that the AUMF allows them to overrule laws even when neither the law nor the subject matter (warrantless surveillance of U.S. citizens, for instance) is even mentioned in the AUMF.
This case is a ball on a tee for any judge, but Taylor whiffed (and called it a home run).
Mark Jaquith on August 23, 2006 at 12:09 AM
This judge is in deep trouble due to it being an election year, and in this case it is both the nature of the evidence, AND the seriousness of the charge that needs to be faced. Democrats across the board cannot be happy about this. Not at all.
To Judge Napolotano of Fox News, In Your face, buddy!
DannoJyd on August 23, 2006 at 12:19 AM
Mark, there exists plenty of historic precedent for actions like the NSA wiretaps during a time of War, albeit a difference in the technologies used. Indeed, due to the current level of communication technologies, it is necessary to work around laws written that could not take into account the difficulties faced in todays World.
If the President didn’t use every tool at his disposal to protect Americans I’m certain he would be impeachable.
DannoJyd on August 23, 2006 at 12:45 AM
That’s not an impeachable offense. “treason, bribery, or other high crimes and misdemeanors” are impeachable offenses. James Madison successfully kept “misadministration” from being an impeachable offense.
Also consider what the President swore on the day of his inauguration. He didn’t swear to protect Americans — he swore to protect the Constitution.
“work around” them? By willfully breaking them?! Again: carte blanche. Not something that anyone should have, no matter how good his stated intent. If things like FISA are getting in the way (as the administration says), they should ask congress to amend it. The administration said they considered it, but thought it would be hard to get passed. So they decided to break the law, and then stated that AUMF allowed them to, as you said, “work around” the law, when AUMF provided for no such thing.
It’s simple: the President cannot use “executive duty” to justify breaking the law. He cannot use it to imagine that Congress said he could do something when they did no such thing. There is no overriding principle that allows the President to violate a law passed by Congress, no matter how much he thinks it would benefit the nation’s security. That’s not my opinion, that’s the Supreme Court’s decision in 1952 in Youngstown Co. v. Sawyer.
These incidents happened before FISA was passed. Interception of telegrams during The War Between the States cannot be used to justify post-FISA warrantless wiretapping.
Mark Jaquith on August 23, 2006 at 3:48 AM
The NSA program without FISA cannot be defended, and opinion to the contrary belongs at either extreme of the political spectrum.
THeDRiFTeR on August 23, 2006 at 4:08 AM
Mark, the folks at Powerlineblog, who happen to be extremely intelligent attorneys, discussed the legal aspects of the NSA program at length. Of the three attorneys there, two (including John, who if memory serves wrote the most detailed analysis) believe that the program is clearly legal and justified, and one is not sure.
There is enough room that reasonable people can disagree about some aspects over the degree of certainty of the legality of the program, but the criticism of the program’s legality that I have seen is generally unreasonable. The people arguing against the program and the President, like this judge, make shoddy arguments. I don’t think it is possible to make a reasonable argument that the program is clearly not legal. That conclusion can only be argued through ignorance, deception, or both.
Youngstown, a 1952 supreme court case, is the only case consistently cited by the opposition (for good reason, it is the best theyve got), and even then only a single concurrence is cited, the opinion of only a single Justice: Jackson (not joined by any other Justice), because in it Jackson lays out a framework which severely limits executive power (which is what the opposition is looking for here). This framework has not been extended and adopted in the many opinions on this subject matter since 1952, including extremely relevant cases like In re Sealed, Truong, and others. It has, however, been celebrated by liberal academics (redundant, I know) because it tells them what they want to hear: a deliniation between congressional and executive power that sharply disfavors the President. This is a case of liberals disingenuously cherry-picking language they like to support their agenda, while ignoring the mountains of language in other cases that are both more recent and more on point.
I do not think it is a reasonable or moderate position to simply hang one’s hat on Youngstown and treat that single anomalous concurrence as the last word. I would like to point out that you are MISREPRESENTING Youngstown, however. This is what you say:
This is a false statement. Jackson has no problem with the President flaunting Congressional laws outside of situations where Congress and the President had overlapping Constitutional powers. Jackson never supported the idea that Congress could curtail the Constitutional powers of the President with statutes. If you had actually read the concurrence you would see that, if Jackson were to write an opinion on the NSA program’s legality today, he would almost certainly support President Bush:
343 U.S. 579, 645
This quotation also highlights the utter inapplicability of Youngstown factually. Nationalization of steel mills is nothing like surveillance of individuals as part of a mission to secure our society against the external threat of terrorists.
Congress cannot use FISA to take away the President’s Constitutional powers.
kaltes on August 23, 2006 at 7:07 AM
For those interested in the Youngstown case, here is a better link to the opinion, and I say better because the cornell site is easier to navigate and better presented: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZO.html
for those who want just an intro to the case, here is an article, which also points out why the Jackson concurrence isn’t as significant as NSA/Bush opponents would have you believe: http://law.richmond.edu/news/view.php?item=181
kaltes on August 23, 2006 at 7:10 AM
There is enough room that reasonable people can disagree about some aspects over the degree of certainty of the legality of the program, but the criticism of the program’s legality that I have seen is generally unreasonable. The people arguing against the program and the President, like this judge, make shoddy arguments. I don’t think it is possible to make a reasonable argument that the program is clearly not legal. That conclusion can only be argued through ignorance, deception, or both.
Youngstown, a 1952 supreme court case, is the only case consistently cited by the opposition (for good reason, it is the best theyve got), and even then only a single concurrence is cited, the opinion of only a single Justice: Jackson (not joined by any other Justice), because in it Jackson lays out a framework which severely limits executive power (which is what the opposition is looking for here). This framework has not been extended and adopted in the many opinions on this subject matter since 1952, including extremely relevant cases like In re Sealed, Truong, and others. It has, however, been celebrated by liberal academics (redundant, I know) because it tells them what they want to hear: a deliniation between congressional and executive power that sharply disfavors the President. This is a case of liberals disingenuously cherry-picking language they like to support their agenda, while ignoring the mountains of language in other cases that are both more recent and more on point.
kaltes on August 23, 2006 at 8:25 AM
I do not think it is a reasonable or moderate position to simply hang one’s hat on Youngstown and treat that single anomalous concurrence as the last word. I would like to point out that you are MISREPRESENTING Youngstown, however. This is what you say:
This is a false statement. Jackson has no problem with the President flaunting Congressional laws outside of situations where Congress and the President had overlapping Constitutional powers. Jackson never supported the idea that Congress could curtail the Constitutional powers of the President with statutes. If you had actually read the concurrence you would see that, if Jackson were to write an opinion on the NSA program’s legality today, he would almost certainly support President Bush:
343 U.S. 579, 645
This quotation also highlights the utter inapplicability of Youngstown factually. Nationalization of steel mills is nothing like surveillance of individuals as part of a mission to secure our society against the external threat of terrorists.
Congress cannot use FISA to take away the President’s Constitutional powers.
kaltes on August 23, 2006 at 8:26 AM
I’ll be expecting to hear from everyone who thought the Armstrong Williams situation was the pinnacle of deceit in government.
This judge seems to be one of those “Ethical constraints for thee, but not for me” types. She just knows how things ought to be, and therefore she can’t have a conflict of interest. Because she knows! And that’s in everyone’s interest!
Direct any questions or concerns to the ACLU.
Pablo on August 23, 2006 at 8:53 AM
This Judge is from the Coleman Young club. Young is the former mayor of Detroit who helped extinguish whatever life was left in the city after the riots. His favorite expressions: it’s racist, You’re a racist, They are racists.
Young will never be forgotten for his innaugural speech telling the criminals of Detroit to hit 8 Mile road (the northern boundary between Detroit and the ‘racist’ suburbs) thus alienating the suburbs for eternity and beginning the shriveling of the city population from a pre-Coleman high of 1.5 million to about 800,000 today.
Some of the courtrooms around here make you think of Alice in Wonderland
entagor on August 23, 2006 at 9:38 AM
Grr.
Regardless of whether or not a conflict of interest exists, shouldn’t this judge have the foresight to anticipate that such an argument would be made and gone ahead and recused herself?
If she really sees her role as interpretting and protecting the law; as well protecting the legitimacy of the American legal system, then she should have conducted herself, accordingly.
It appears as though she has not conducted herself accordingly.
Her failure to understand how her political connections might be perceived indicts, to me, that she may be looking to progress an agenda beyond her judicial province.
Her failure to understand … , may be demonstrative of partisen egotism that is wholly unacceptable, and flies in the face of the task for which she was appointed to conduct.
All bias aside, one could make a strong argument that she’s gaming the system to push forth her beliefs, not the law.
And that, my friends, is the problem.
yo on August 23, 2006 at 11:05 AM
I love it when people argue legal semantics when people’s lives are (literally) at stake. People fail to take into account the reality of the situation. On 9/11, we were attacked and 3,000 people died. It happened on President Bush’s watch. Do people truly think he sat down and said: okay, how do I go about preventing this again with the existing protocols? Hell no!! Not after the entire world witnessed the horror inflicted on that day. The rules changed. We were exposed, and we needed to adapt. My guess is that the Bush administration said that this will not happen again while he’s president — that means putting new systems in place to prevent another 9/11 — it also means pushing the envelope. It’s about saving lives – civil liberties come second. Pres. Bush is doing the right thing and doing his job. I thank God we have a commander in chief who is thinking about keeping us safe, instead of how the Patriot Act will affect people researching bomb making at libraries or how someone’s privacy may or may not have been violated when they were on an overseas phone call with one of Bin Laden’s associates. Give me a freaking break.
Rick on August 23, 2006 at 12:09 PM