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.

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

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.

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.

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:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

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.

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.

A Judicial Watch press release (U.S. District Judge Who Presided Over Government Wiretapping Case May Have Had Conflict of Interest) notes the following:
According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secr…

From Judicial Watch… Judicial Watch, the public interest group that investigates and prosecutes government corruption and judicial abuse, announced today that Judge Anna Diggs Taylor, who last week ruled the government’s warrantless wiretapping pro…

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

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:

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.

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:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

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.

If the President didn’t use every tool at his disposal to protect Americans I’m certain he would be impeachable.

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.

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.

“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.

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.

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.

Many liberals just skirt around the issue like they do trying to appeal to the religious right: wolves disguised in sheep’s clothing, “Look, we’re religious too!” Unfortunately, this can easily detected, just as cries of, “We love America, too!” …

If the President didn’t use every tool at his disposal to protect Americans I’m certain he would be impeachable.

To Judge Napolotano of Fox News, In Your face, buddy!

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:

4th amendment + warrantless wiretaps + FISA = Illegal

Gonzales:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides — requires a court order before engaging in this kind of surveillance that I’ve just discussed and the President announced on Saturday, unless there is somehow — there is — unless otherwise authorized by statute or by Congress. That’s what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

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).