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August 23, 2006

Comments

Other Tom

Will the New York Times now remind us of the need to avoid even the "appearance of impropriety?" Will pigs take wing?

danking70

Whatever it is, I'd bet I'd love tittering...

noah

The "appearance of impropriety" is unethical if I remember the involuntary seminars I have received on judicial ethics during confirmation hearings correctly.

Great piece by Althouse who by the way is a liberal...but not a moonbat which is why the moonbats think she is a conservative.

SteveMG

Kerr points out that that it's possible that the government just punted the ball on the case. I.e., recognizing that they had little chance of winning, the government presented the state secrets defense and then left the courtroom. Saving their best argument for another court and another day.

Seems to me that while Judge Taylor's opinion is rightly being hammered, that some criticism - or at least blame - can be assigned to the government's actions. Taylor had little to work with, so to speak, and her opinion reflects that.

Government thumbed its nose at her; she thumbed back. Not a good way to run a airline as the saying goes.

SMG

Crank

This was the same judge who tried to grab the Michigan affirmative action case even though I believe her husband is a trustee of the U. Mich.

noah

SteveMG, as Althouse points out the judge failed to soundly articulate the reasons for her decision. If there are sound reasons she should have articulated them irrespective of the defendants arguments.

But you know that I suspect. (or hope)

Rick Ballard

What's the appropriate amount of effort to put into a game where you know the deck is stacked and the dealer is crooked? The government tossed in the ante and folded without placing a bet. I can't see why they should be expected to do more when the rules say that they can have a new deck and dealer as soon as the hand is played.

Appalled Moderate

Frequently a judge's opinion will reflect the quality of the briefs, particularly if the judge is unfamiliar with the issues at bar. It is possible the decision stinks because neither the ACLU's brief nor the govenment's brief was compelling.

Other Tom

I'd be very surprised if both sides didn't brief all of the relevant issues, regardless of what the judge ultimately addressed in her opionion. I've been away from it for a while now, but my recollection is that you can't raise an issue for the first time on appeal.

SteveMG

I can't see why they should be expected to do more when the rules say

Hmm, what are we paying them to do?

It seems to me that this is a good policy or tactic for a private legal term representing a client. But this smacks of gamemanship between two private parties more than it shows our government proving the constitutionality of a national security program in the middle of a war.

In other words, they didn't take this seriously.

Smart tactics perhaps; but a bit too cute for me given the seriousness of the issue.

Not exonerating Taylor here from Althouse's (and other's) criticism. My guess is that even if the government gave a substantive defense that Taylor would have been equally (undisputedly?) dismissive.

SMG

boris

Sorry, but for a sitting judge, supposedly competent, to tell the president to STOP DEFENDING THE COUNTRY RIGHT NOW !!!

That's over the line.

To claim she's the one enforcing the constitution is a frakking joke (isn't that what "risible" means?).

The constitutional role of judges is to decide the meaning and constitutionality of written law according to accepted legal conventions. That doesn't include taking safety and national security into account. That's why the constitution and it's writers clearly indicate such matters are to be hashed out by the elected branches which are accountable to the people they are entrusted and obliged to protect.

Barney Frank

It is possible the decision stinks because neither the ACLU's brief nor the govenment's brief was compelling.

Possible maybe. However, it is probable that the reason it stinks is entirely the judge's responsibility.
It's been my experience that stupid judges give stupid opinions and smart ones don't, regardless of the briefs.

clarice

TM, The judge in the AIPAC case has made two interesting rulings on leaks of classified information:(a) refusing to dismiss the cases and (b) calling for an investigation of who leaked wiretap info to the NYT and Miami Herald and indicating that he may reconsider the dismissal ruling depending on the results of the latter.

I wonder if we could discuss that case which seems more unique, as this ruling is so obviously flawed even the NYT' no longer seems to be sticking to the proposterous views it expressed in its original editorial.

Don

OtherTom-you ought to read the DOJ brief. I'd link to it, but it's so pathetic it might infect my computer.

Great Banana

Frequently a judge's opinion will reflect the quality of the briefs, particularly if the judge is unfamiliar with the issues at bar. It is possible the decision stinks because neither the ACLU's brief nor the govenment's brief was compelling.

Only if the Judge is incompetent to begin with. Judge's have law clerks to do research for them and access to as many, or more, research materials than the lawyers. They also are under no real time-line to get the decision out, if they need more time to research an important issue. I've had decisions take a year from oral argument to receive.

So, to blame the incompetence on display in the Judge's decision on the briefs by the parties is idiotic. Basically, you are claiming that the judge did not look beyond the briefs, or conduct any independent research. Again, that means the judge is incompetent.

But, that isn't even true. The government, did, in fact, raise many arguments in its brief that the judge simply ignored. Including important precedential case cites. So, the judge here is not only a liberal activits judge, but an incompetent judge who can't even write a brief addressing the arguments presented by one of the parties. Something that even the lowliest associate at the firm I worked for could have done.

That is point Althouse is making. That the judge failed to even bother to attempt to cover the fact that she did not care about the law - only the outcome. And that is demonstrated by the lack of any intelligent legal analysis addressing any of the major cases on point or the arguments raised by the government in the legal opinion.

cathyf
I'd be very surprised if both sides didn't brief all of the relevant issues
If you read Kerr at Volokh it's more complicated than that.
The key dynamic that emerges from the commentary thread yesterday is that Judge Taylor asked DOJ to brief the merits of the case, and DOJ essentially refused to do so. (Procedural history of the case here.) DOJ's argument, if I understand it, was that it couldn't brief the merits without divulging state secrets; Judge Taylor evidently disagreed, and so took DOJ's refusal to brief the merits as a failure to dispute the facts and ruled against it. The civ pro people on the earlier thread seem to disagree whether this was proper
cathy :-)
boris

I'd link to it, but it's so pathetic it might infect my computer

No use pretending ... we all know the real reason is that your Commodore 64 doesn't have enough memory for linking.

Gary Maxwell

There is a Commodore on display outside of a museum?

boris

Actually Don lives in a museum. I'd tell you which display he's part of but it would sound snarky.

Specter

OT - Welcome back TM. We like you better than your bots' LOL.

Specter

Hey - my first personal 'puter was a Timex-Sinclair - cats pajamas - it had 2K or RAM on board and I had a 16K RAM adapter....hot stuff - predates commodores by a bit tho....lol

Neo

the judge is a trustee for an organization that is a big contributer to the ACLU, in whose favor she ruled

And they wonder why anyone would think of bitch-slapping a judge. Corruption -- thy name is Taylor.

I wonder if the ALCU knew about the COI ?

Javani

"Frequently a judge's opinion will reflect the quality of the briefs, particularly if the judge is unfamiliar with the issues at bar."

Or her clerks. As in this case. Moonbat clerks.

Gary Maxwell

Why might the ACLU have decided to file the case in Michigan of all places? Think a bit of judge shopping might have been going on? And a judge with a history of trying to steer certain cases to her own docket. No clear reason to suspect anything here, move along please.

SunnyDay

I found a Compaq laptop 386/20 with a 40 meg HD in one of my cars the other day. He can have it. :)

SteveMG

Time out.

Osama Bin Laden keeps copies of Playboy in his brief case (Oy)">http://www.nypost.com/seven/08212006/gossip/pagesix/pagesix.htm">Oy) ?

He has a brief case?

I kinda' figured him to be a Juggs devotee. Maybe Skank.

Does this mean that Hefner carries a copy of the Koran in his brief case?

Okay, back to the debate. A bit of a palate cleanser here.

SMG

SteveMG

Maybe Skank.

Skank?

Swank.

(This is one time where repeat/double posting is warranted)

SMG

PeterUK

Nah,Osama is a "My Pet Goat" man.

Sue

Whitney, pre-Bobby I can understand. She was beautiful. Whitney, post-Bobby...skank would probably be accurate.

SteveMG

skank would probably be accurate.

I was probably subconsciously thinking that when I typed it. Skank=Swank.

She's about 20 miles of bad road right now. All those drugs have a price.

SMG

lurker

Eastman's perspective of the constitutionality of the NSA program.

Need to register (free) before downloading the report to your computer. I just did received it, printing it off to read it.

Both Ann Althouse and Captain's Quarters said that this Judge's ruling has weakened the argument against the NSA program.

John Eastman said that for those in the Congress objecting to the NSA program, their real beef is with the Founding Fathers, which confirmed my argument that they wanted our US president to have unitary powers over military, including military intelligence.

lurker

Even With NSA, We Are Behind The UK

Interesting that repeat-neg-nitpicking Pete thought the Britain terrorist plot was foiled by policework when in reality, it was their intelligence that foiled it. And Britain is ahead of us. So now our democrats WANT to declare the NSA program as unconstitutional because they think it violates our civil rights...without regard to national security?

And they desperately want to prove the unconstituionality of this program. Why? Because it gives them ammunition to impeach Bush.

How about this scenario?

The democrats become successful in halting this NSA program, getting Bush impeached before 2008, and take control of the WH, House, and Senate . Then we are hit with another 9/11 attack. Why? Because we spend so much time and money prosecuting or defending Bush and no one's monitoring foreign intelligence.

Guess what will happen? Will the democrats go this far once they have control of the WH, House, and Senate?

No, I don't think so. Why? The democrats will come forward with an explanation why this NSA program is actually constitutional. Why? Because they don't want another 9/11 attack to occur under their control.

lurker

Rick Moran doesn't have positive feelings about the November elections.

SunnyDay

lurker, I don't like reading things like that, but probably the best way to get republican voters to turn out is to make that most dire of predictions "Speaker Pelosi" ...

I think that will get just about anyone up off the couch and out to the polls.

PeterUK

Lurker,Any new president is likely to get hit,it is the pattern,someone somewhere will decide to test them,happened with Kennedy,happened with Bush,there are probably other cases you can think of.

BTW Intelligence,no problem,you spy on us,we spy on you,swap notes on Diego Garcia.

paulv

Not just Speaker Pelosi, but President Pelosi if moonbats get their wish and impeach and convict both W and Cheney.

SunnyDay

"President Pelosi" - can you imagine? arrrrrrgh!

MarkD

There aren't enough seats up for grabs for conviction in the Senate. This is payback for slick Willie and Florida 2000.

I almost hope the House does go Dem and they do pull this stunt. Because 2008 would be the end of the Democrat party in America. Don't get me wrong, I loathe the big spending Republicans and we deserve a serious opposition party. Besides, a gridlocked government will waste less of my money.

Rick Ballard

Michigan is slip sliding away from the Dems. It is similiar to PA and OH in that both parties are devoting heavy resources to registration and GOTV efforts and the Reps are slowly winning. Both Stabenow and Granholm are going to have to struggle to keep their seats. Stabenow is very well financed but this is one where Mehlman and the RNC integrated effort may give Schumer a black eye (not Dean though, Dean is busy setting up grassroots efforts in Idaho).

lurker

Rick, how 's Dean doing in Idaho with his grassroots? And why Idaho?

Specter

Easier to howl at the moon there.....

cnj

Suppose the Dems get a net gain of 25 seats in the house. That means if 10 members are annoyed with the extreme left-wing, Bush will not be impeached.

The question is are there 10 to 15 house democrats like Lieberman?

lurker

Islamonazism?

Maybe. But good work.

Specter, sounds like Dean's work will not reflect the outcome of the elections in just ten weeks away?

cnj

Any House member or senator can be expelled by two-third majority of House/senate.
Why is that impeachment needs only simple majority of the House? That is not fair.

Rick Ballard

"how 's Dean doing in Idaho with his grassroots?"

As well as might be expected. When the density of Democrats is 1 per 295 acres, organizing can be a little difficult. That fifty state promise is pretty aggressive - wait until he gets to Utah.

SunnyDay

There are democrats in Utah? I only know of 1.

Other Tom

I don't like the Repubs chances at all. And although there's zero chance of a conviction, impeachment hearings are all but certain and a vote to impeach a real possibility. I don't think it would bother Bush at all the way it did Clinton, but the hearings will go on interminably and dominate the news cycle. And at some point the Sixth Circuit may uphold Diggs Taylor's judement, which would technically make the NSA program a criminal undertaking. Dubya will just keep plugging along.

Other Tom

cnj--It takes a simple majority in the House to impeach, but "impeach" actually means only to charge, as was done with Clinton. To be removed from office, you need a House vote to impeach followed by a 2/3 vote to convict in the Senate. That will never happen in Bush's case, even if the Repubs lose their Senate majority. The whole exercise will be undertaken primarily as revenge for the Clinton impeachment, and also as part of the fever to destroy Bush.

Bruce Hayden

A lot of points, so I will use a couple of posts.

As to the Dems taking the House - it is possible, but looking less so by the day. Nevertheless, if they do so, they still won't have the votes to impeach, though they can likely get Articles of Impeachment to the floor.

The problem is that there would be just too many Red State (or more accurately, District) Democrats. Here in CO, of our seven House seats, two are safe for each party. John Salazar grabbed the open seat Western Slope seat from the Republicans when his brother took the open Senate Seat. But his voting record is significantly more conservative than his brothers, most likely reflecting the conservatism of his constitutant. Two other Republican seats may swith this time, one open because the current occupant is running for Gov. But the Dem. nominee there has a very moderate record in the State House. If all three end up Democrat, expect none of them to vote for impeachment, as that would invariably end their Congressional careers. All three districts are very evenly split, but went for Bush in 2004. And that means that they aren't going to return someone to Congress who voted to impeach him over how to run the War on Terror.

And these are probably very representative of the type of new Democratic Representatives that they can expect. After all, if they were running in a safe district, the seat would already be held by a Democrat. So, most, if not all, of the new Democratic Representatives can be expected to come from districts that went for Bush in 2004, or very nearly did.

Bruce Hayden

I do hope that Judicial Watch grieves Judge Taylor. The legal ethicists picked by the NYT not surprisingly didn't think that she should have recused herself, but rather, just disclosed this appearance of impropriety.

But, of course, if she had done that, then she might of faced a motion by the government to do just that, recuse herself. And, as noted above, this is the judge who tried to steal that U. Mich. racial quota (ok, most call it Affirmative Action) case. So, I have little doubt that she would have denied any such request, because to do so would mean that a judge not so vociferously opposed to the Administration (i.e., one not appointed by President Carter) might get the case. So, working backwards, why should she disclose this appearance of impropriety if it would just mean the embarassment of refusing to recuse herself in favor of a less biased judge?

clarice

Bruce, those folks took a far different position when Scalia hopped a ride to a hunting party with Cheney, didn't they?

Bruce Hayden

Final point for awhile.

It has become a liberal canard over the last week that though the decision is atrocious, that is only because the government did such a bad job defending itself, not briefing on the merits, etc. If you doubt that, go read the threads today at Alhouse and Volokh.

But I don't buy that at all. I haven't found yet the defendant's response to plaintiff's motion for summary judgment, but have found their motion to dismiss, and it asssert a number of sustantive points that were not addressed by Judge Taylor in her opinion. The critics are correct in that it does concentrate on what cannot be shown because of the State Secret privilege, but also brings up a lot of, in particular, 4th Amdt., FISA, etc. points that are not addressed.

The problem is that the judge seems to have found a way to use some undisputed facts to come to a very shaky 1st Amdt. violation (shaky because the result would be that there was a 1st Amdt. right to unfettered speech with identified enemies in a time of war). And then she goes on and uses the rest of the undisputed facts, regardless of any State Secret problems, to come to the remainder of her decision. But that turns out to be, IMHO, illegitimate.

For example, a 4th Amdt. violation would require that a plaintiff be illegally surveiled. Three plaintiffs have filed declarations that they had a good faith belief that they had been. BFD. The government in its Motion to Dismiss points out that in order to determine whether any specific person were surveiled, State Secrets would have to be disclosed. Similarly, the Plaintiff's response brief suggests that one of the organizations has over a 1,000 criminal attorneys, some of whom communicate with terrorists, and therefore, under the information disclosed publically, have been surveiled. But the government's brief points out that the actual criteria for surveilance are also protected by the State Secret privilege. You get the idea - the plaintiffs say that they must have been surveiled because of the public disclosures, and the government responding that determination of whether they were or weren't, and what those criteria were are all protected by the State Secret privilege, and so they can't defend beyond that. Of course, the opinion is silent here on precisely how the judge got around the State Secret privilege to find that any of the plaintiffs had been electronically surveiled.

Nevertheless, the government goes on and points out that the 4th Amdt. doesn't require warrants for all searches, but only protects against unreasonable searches. This, of course, was not addressed in the opinion. And they also point out that whether or not the search was reasonable is dependant upon facts protected by the State Secret privilege. Again, no discussion in the opinion.

She committed similar error (IMHO) in her FISA discussion. Indeed, whether or not a plaintiff was ever electronically surveiled is protected by the State Secret doctrince, as well as whether, if one was, it was under warrant.

I have collected as many of the pleadings as I could realistically find (mostly from the ACLU) (though for the next couple of days, you may get a more readible version going directly to my blog). I did use Pacer to try to find more government pleadings, but almost all I found there were dozens of motions for more time, more pages, etc., and the responses, replies, and orders thereof. I am left to wonder what else the government filed that is not publically available. Nevertheless, I would submit that with what I have found, the suggestion that the government just blew off responding is meritless.

Rick Ballard

Thanks for doing that, Bruce. One might suppose that law profs would be a bit embarrassed to engage in a bit of hackery to provide cover for a real hack. Or did the sleight of hand just show up in comments?

clarice

Bruce, if the 1st Amendment finding falls--as I'm sure it must-- doesn't the standing finding vanish?

Appalled Moderate

Bruce:

Were the positions taken by the judge detailed in the ACLU briefs, or was what she did something she made up?

(I don't buy a "weakness by the government" defense of this decision. My guess was that the ACLU and any other amici briefs were the source of the crap.)

My life sometimes involves reading decisions in an obscure area of the law. Judges frequently botch the law in this area. On research, you can usually find the source of the WHAT THE ^&^%$ position taken in the case in the briefs filed by the prevailing parties.

Gary Maxwell

She's about 20 miles of bad road right now.

Funny just yesterday ( on a different board) I was speculation on a Chris Berman call " swing and a miss by Randi 20 miles of bad Rhodes.

I did not realize the moniker was already appropriated.

Gary Maxwell

Can anyone envision the chaos that would ensue if the Democrats staged a coup, and via impeachment removed both the sitting President and Vice President and thereby installed their very own newly minted Speaker into the Oval Office? I think the framers of the Constitution would say that actions such as this would mean a revolution would be in order. And I do mean a violent one if that is what it took. I dont see the Democrat Party surviving if they took that path it would splinter into 3 groups ( or more ) ultimately.

cnj

Other Tom, I knew about the Senate conviction;my point is if the President committed a "high crime", public opinion will be overwhelmingly against him and so the House will reflect that by commanding two-third majority for impeachment. The simple majority(even for bringing the charges) is more likely to be misused for partisan purposes.

Other Tom

Just to clarify what I said earlier, while I do think it is possible that the Sixth Circuit may uphold the judgment, for what it's worth (next to nothing) I think it's unlikely. I think the most likely result is a reversal on the standing issue, because I don't think any of these plaintiffs comes close to having it. I understand that there are a bunch of cases that have been consolidated elsewhere, I believe in the Ninth Circuit. At some point somebody is going to succeed in getting this matter properly before the federal courts.

Other Tom

cnj--You'r undoubtedly right; impeachment has been used twice against a president, and both times were pretty clearly for partisan purposes. As big a scumbag as Clinton was, the thing went down purely along party lines. The grounds for impeachment of Andrew Johnson were simply absurd. But that's democracy.

Rick Ballard

Gary,

On November 8th, Tom might want to run a thread on "stupidest tactic employed by the losers". The impeachment gambit would certainly be in the running. If you look closely at Emanuel's announced advertising spending plans on both a state by state basis as well as a specific candidate basis you'll see an '08 defensive pattern rather than an '06 offensive pattern. Plus some egregious attention to Emily's Lister's - gotta pay the piper.

The highest net pick up I can get to for the Dems is six - unless I wander into fantasy land. The highest net Rep pickup would be four, with the same constraint.

Not exactly a potential barn burner but it never was.

lurker

"I understand that there are a bunch of cases that have been consolidated elsewhere, I believe in the Ninth Circuit."

The odds that the Ninth Circuit to rule the unconstitutionality of this NSA program is very high; knowing a little bit of its recent history.

maryrose

Taylor's decision will be reversed and is now tainted by the fact that she supports the ACLU financially. She should have recused herself but just couldn't resist that 15 minutes of infamy. And she's a dem judge so why are we surprised that she would take the unethical approach to getting the case and ruling on it.
Impeachment will NOT occur because repubs will retain both House and Senate. The dems achilles heel is that they are soft on terrorism. The public fully knows this and will vote accordingly.

Other Tom

Rick--are you talking about the House or the Senate? I'm not aware of a single house seat that the Republicans are likely to pick up. I sure hope I'm dead wrong; please enlighten me.

Rick Ballard

Tom,

GA-12, TX-17, CO-03, IL-08, IA-03 and OH-06 are all vulnerable, some more, some less. The DCCC is dumping a ton of money into IL to protect Melissa Bean and promote Tammy Duckworth (running for Henry Hyde's former seat). Both candidates are Emily's Listers - you can see Miz Clinton's pudgy fingerprints all over Emanuel's financing choices.

In terms of percentage and plurality shifts necessary to effect a change, those six seats are more vulnerable than all but 2 (PA-6 and IN-9) Republican seats.

I know that people keep referring to '94 but where is the Rep scaring the geezers like Miz Clinton did? And where is the Dem equivalent of the Contract with America? The other factor that is little remarked is the Forest Lawn Effect, Roosevelt's Yellow Dogs have never been replaced and their ranks are thinning to the point where they are of negligible importance.

Bruce Hayden

Appalled Moderate

Actually, yes. When I first read the opinion, I was appalled. As Ann Althouse pointed out, the decision does a credible job of laying out the State Secret privilege doctrine and then into Standing. And it does do some of the work with the 1st Amdt. violation. But then, all of a sudden it seems that analysis stops, ranting starts, and the remainder of the decision is mostly about us not having heritary monarchs. And there is a screaching conclusion, where all of a sudden, out of the blue:

For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law.
And we are left asking, what statutes? (turns out to be FISA and Title III of the Wiretap Act) What 4th Amdt. violation? What is the APA? (the obvious, as it turns out). Who were the plaintiffs who were harmed here?

When complainging about this, I was first directed to her order which does indeed spell out which statutes were violated and the meaning of the APA (but nothing more). Then to the undiputed facts. And then, ultimately, to the pleadings that I have accumulated on my blog (this is a better link to them), and was assured that everything in the opinion and order was covered in the briefs.

But my reading of the briefs, etc. indicates that while a lot of it is accurate, it isn't totally so. I think that the 1st Amdt. violation is at least partly her own creation, though taking quite a bit from the plaintiffs' briefs. But we are still left with the question of whether the harmed plaintiffs are the three who filed declarations that they had a good faith belief that they had been electronically surveiled (based on the published criteria), or of the more than a thousand criminal attorneys who must have been surveiled given how many of them, though that isn't supported by declaration, just an assertion in a brief.

Poll

ACLU passed on Patriot Act because it was no money. Now, they see money.

Bruce Hayden

I agree that the most likely scenerio is a quick rejection of the 1st Amdt. theory under which Standing was found, as a matter of law, resulting in a remand for lack of standing.

In response to Clarice's question from last night, she probably knows as much, if not more about Standing than I, but my understanding is that the majority rule is that standing must be maintained throughout the course of a litigation.

But I think that the appals court would be remiss if it didn't point out that when the judge is dealing with the State Secret privilege, that it is incumbant upon a judge to point out what evidence she uses to get where she was going, so that the appeals courts can determine if the findings of fact are tainted by inadmissible evidence. At present, we don't know precisely what her findings of fact were, and, thus, can only guess at whether she did come to are based on plaintiffs' evidence that might be rebutted except for the State Secret doctrine.

I think that this would be in their best interests, since if they don't hold her feet to the fire there with her woeful lack of pointing out what evidence is tainted by the SS doctrine and what isn't that she used, she is likely to rule again for the plaintiffs in short order, on another crazy legal theory to get standing, and thus a decision on the merits in their favor.

Bruce Hayden

Appalled Moderate

Let me clarify something from my previous post. It is clear that a lot of what Judge Taylor did came straight out of plaintiffs' briefs, even if she doesn't say so. And, to some extent, this is not that atypical. And we are left to assume that much of her reasoning came from there too, though we are left guessing, since she jumps almost straight to her conclusion (cited above) without any real logic or showing of the facts used.

Part of the problem though is that it is as if she didn't really read the defendant's motion to dismiss, or didn't take it into account after she had rejected it. It asserts a fairly decent number of legal issues that were not addressed by the opinion, and that, IMHO, would have be dispositive in the defendant's favor. Such minor points as that the 4th Amdt. doesn't forbid all warrantless searches (which seems assummed here), but rather, it forbids unreasonble searches (and, in order to determine whether electronic surveilance was reasonable or not requires privileged information).

She may be playing procedural gotcha here, and intentionally didn't use the motion to dismiss in her analysis on the substantive issues, having already disposed of the motion to dismiss earlier in the opinion, and faulting the government for not separatedly briefing their defenses in a response to plaintiffs' motion for summary judgment. That would be cutting it a bit too fine for me, and I think the 6th Circuit.

Other Tom

At least in the Central District of Calif., the practice used to be that after a summary judgment was granted, the prevailing party would submit proposed findings of fact, the loser would respond, and the court would ultimately issue its findings on the basis of what had been submitted to it by the parties following the ruling. I believe every federal district has (or is entitled to have) its own procdure in this regard, although perhaps it is provided for in the Federal Rules of Civil Procedure. Somehow it is very nice to be this far removed from that stuff.

Bruce Hayden

One of the more humorous indicia in Judge Taylor's opinion that she was plagerizing the plaintiffs' briefs without understanding the issues concerns her assertion on page 42 that Youngstown, Keith, and Hamdi all stand for the proposition that the argument that FISA warrants are cumbersome is "weightless" (link is to my blog).

Bruce Hayden

Probably should have rephrased that last. She found the government's arguments on FISA warrants "weightless" in view of those decisions.

Bruce Hayden

Other Tom,

That seems a bit backwards. Shouldn't the court be determining the facts before it makes its conclusions of law, instead of making its conclusions of law, and then having the parties fight over the facts later? I always thought that the whole idea here was to apply the law to the facts, and not the other way around.

Richard Aubrey

I live in Michigan, so I'm somewhat familiar with her record.

There is approximately zero possibility that any information the administration could have supplied would have changed her mind.

So why provide her with stuff she'd slep down the street to the Detroit Free Press when you're going to lose, anyway?

Take a mulligan and wait for more responsible judges.

SteveMG

It seems to me that if the government believes that the program is both constitutional and effective, then openly (with the obvious limits necessary) and aggressively defend the program in court.

I don't care whether they think the judge is going to give them a fair hearing. That's another issue entirely. This is not a debate on some patent rights or liability between two private parties.

This is about critical issues of national security and executive powers and the Constitution in a representative democracy.

No games.

Let's have the debate in the open with the understanding that there are limits as to how much of the details of the program can be discussed (I don't understand why many of the details couldn't be presented in camera).

SMG

vnjagvet

If Laird v. Tatum, a 1972 Supreme Court case is still good law, the standing issue is a winner for the Government.

There are no allegations in the complaint that any Plaintiff was actually the subject of NSA surveillance without a warrant. The Plaintiffs allege basically that they are afraid that they might be one of those who is subject to a warrantless surveillance because the public descriptions of the program put some of their telephone calls in the target zone.

According to the Government's brief supporting its motion to dismiss, the Tatum case established that reasonable fear (aka "chilling effect")is not enough, and Federal Courts have followed that rule for over 30 years.

Next time I am on Lexis, I will shepardize the case to see whether it is as strong as it appears for the Government's position.

lurker

Bruce Hayden, thanks for setting up your blog site. It was well worth seeing it earlier today.

vnjagvet

Having just reread the standing portion of the Judge's opinion, I now understand that she has essentially adopted the reasoning suggested by the ACLU's response brief and distinguished Tatum.

The cases she cites, however, have one thing in common. All involved plaintiffs who were actually the subjects of the challenged governmental action. For example, one, a Presbyterian Church, lost attendance because the FBI was conducting surveillance of its Sunday services. It had standing to challenge the surveillance as unlawful.

In this case, no Plaintiff alleged that it was the subject of NSA surveillance, either with or without a warrant.

In fact, the alleged damage (fear of surveillance and reduced contact because of such fear) would likely obtain whether or not a FISA warrant had issued. That is because the FISA warrants are issued without notice to the subjects of the surveillance.

Other Tom

Bruce H: While it seems backward on its face, it really isn't in practice. Before issuing a ruling the court has decided what it finds to be the facts, and what it concludes to be the applicable law. It then goes through the dance I described in order to allow the parties to participate in the preparation of the record for appeal. No court is going to enter a finding or conclusion that is not consistent with its initial reasoning; the paperwork is simply part of the mechanism for reducing the whole thing to a record.

Standing: One of the frightening developments that occurred while I was still litigating was the judicial approval of the notion of "cancerphobia." Under this nutball theory, if an industrial concern were emitting substances that a neighbor didn't like, the neighbor could go to trial on the theory that he was afraid he might get cancer, even in the absence of any evidence that he had suffered any actual harm. I mention this only because I think the judiciary today is capable of almost anything.

Rick Ballard

"...I think the judiciary today is capable of almost anything."

That's been remarkably evident ever since the discovery (by the Supreme Court, no less) of an aura resting comfortably in the emanation of a penumbra. It probably predates that piece of nonsense by some time but that particular abuse of logic and language has led many to look upon those berobed symbols of the majesty of justice with some degree of skepticism.

There's really nothing to fear from 'progressve' pseudo thought because it unfailingly destroys that which it claims to propound but it is amazingly annoying to have to live through the process. Expensive, too.

If you're still in Central Cal - CA-20 (Costa) is a long shot pickup for the Reps - probably the only seat in CA of either party where a change is possible. Unless, of course, the Sanchez sisters are drawn into the Cold Cash Jefferson drama.

vnjagvet

Check this quote from the order in the Wilson v. Libby case denying the Wilson's motion to keep their residence address confidential:

Moreover, the implicit premise of Plaintiffs' motion -- that their residential
address is confidential -- is questionable. In less than thirty minutes, the Court was able to ascertain plaintiffs' residential address from multiple publicly available sources, including a database of federal government records. Indeed, an attorney who filed this motion on plaintiffs' behalf has stated in a nationally circulated newspaper that he is plaintiffs' next-door neighbor, and the residential address of that attorney also is readily ascertainable.

Based on the current record, then, the relief plaintiffs seek is not warranted.

Talk about frivolous motions.

Other Tom

A colleague of mine once likened the Supreme Court to the oracles of old. He said the lesser mortals approach this great cave and hand in papers and say whatever they want, then the nine folks in robes go back into the cave for a while. Then they come out and tell us what the law is, and no one can figure out how the hell they came up with it, but they announce it to the world and then go back into the cave, and everyone has to live with it.

I'm down in the Southern District now. I believe the Dem Susan Davis is my congressperson, but she's surrounded by reliable Repubs, most notably Duncan Hunter, who is from an adjacent district.

Rocco

Sorry for getting off topic but this doesn't look right to me. How can Mima Nedelcovych be http://usinfo.state.gov/journals/ites/0899/ijee/af-nedel.htm>Vice President for F.C. Schaffer and Associates and http://www.exim.gov/pressrelease.cfm/D482E74D-E2FE-534E-F4FAAA111C27EB71/>Executive Director of the African Development Bank

After this http://sec.edgar-online.com/1995/08/14/00/0000950129-95-000991/Section6.asp>95 Serv Tech 10-Q Form

2. FINCHAA SUGAR MILL PROJECT
During the first quarter of 1995, F. C. Schaffer & Associates ("Schaffer"), a subsidiary of the Company, secured an $83 million contract to engineer, design, procure and construct a 4,000 metric ton cane-per-day sugar refinery and 45,000 liter-per-day ethanol plant in Finchaa, Ethiopia. The project, which is financed by the African Development Bank, is expected to be completed in the latter part of 1997 followed by a twelve month training and warranty period. In conjunction with the effectiveness of the contract, the Company received an advance payment equal to 20% of the contract value.


Bruce Hayden

Note that Orin Kerr at volokh.com has acquired some more of the pleadings and made them available. I have added them to my list. Of particular note, we now have some more of the government's pleadings available.

Rocco

How can a bank with Nedelcovych on their Board of Directors, (African Development Bank) lend a company (FC Schaffer and Associates)with the same Nedelcovych as their Vice President? Isn't that what happened here?

That was 95, then in 99, La Lettre de l'Ocean Indien reports the Alamoudi, Aburdene, Wilson, Schaffer trade delegation to Ethiopia. See "Business">http://www.africaintelligence.fr/LOI/archives/default_archives.asp%3Fnum%3D876%26year%3D&prev=/search%3Fq%3Deatic,1999%26start%3D20%26hl%3Den%26lr%3D%26sa%3DN">Business Introduced Well".

(I borrowed a cut and paste of this article from Winds of Change.

The Indian Ocean Newsletter October 23, 1999 SECTION: ECONOMICS & PROJECTS; ETHIOPIA / UNITED STATES; N. 876 LENGTH: 363 words HEADLINE: Well--connected businessmen

The delegation of American businessmen which is to go to Addis Ababa from November 6 to 14 at the instigation of Ethio--American Trade and Investment Council (an organism managed by Gezahegn Kebede. which is close to the Ethiopian government) has some solid connections with the US Administration. The visit will be sponsored by Osyka Corporation, a Texas oil company whose chairman Michael F. Harness is a member of both EATIC and of National Petroleum Council, an organism charged with advising US secretary for energy Bill Richardson. Another sponsor is F. C. Schaffer & Associates, a sugar company whose chairman Mina Nedelcovych is boss of Corporate Council on Africa which groups American enterprises active in Africa.

Several companies controlled by Saudi--Ethiopian magnate Mohamed Hussein Al Amoudi have helped to organize the trip: Westar Group, which administers Al Amoudi's interests in Washington and is chaired by Derige Mekonen after having been long managed by banker Jeff Wilson, and the Addis Ababa Sheraton whose board includes ex--US ambassador to Ethiopia Irvin Hicks and Al Amoudi's Midroc Ethiopia group. There is also Rock Creek Corporation, an investment company controlled by Al Amoudi and chaired since 1997 by Elias Aburdene, a Lebanese businessman very well introduced in Washington power circles. A former adviser to the Franklin National Bank in Washington DC, Aburdene right from his accession to the top of Rock Creek engaged US president Bill Clinton's former adviser for African affairs, Joseph Wilson IV as adviser. The latter had already met Al Amoudi in 1997 during a meeting organized at the World Bank by the Westar Group (ION 794). Apart from his responsibilities with Rock Creek, Aburdene is executive chairman of the very influential National Association of Arab Americans. A former lecturer at the University of Georgetown's School of Foreign Service, he is also very active with former students of the university where ex--assistant secretary of state for African affairs Chester A. Crocker and US mediator in the Eritrea--Ethiopia border dispute (and former national security adviser to Clinton) Anthony Lake are professors.

SBD

Then in February 2001, Fortune writes "Schaffer">http://www.ethioguide.com/aa-ethioguide/ethioguide/Fortune/Fortune%2054.htm">"Schaffer wins Finchaa Management Contratct"

The government has finally made up its mind and chosen the American company, Schaffer and Associates International L.L.C., To take over the management of Finchaa Sugar Factory on a performance contract basis. The decision came on February 20, 2001 after the Steering Committee delegated to decide on the selection of the firm approved the bid evaluation report by the seven-member committee designated to conduct the screening of the bid participants.

I found this interesting.

The greater part of the 1.8 billion Br investments was received in loans from external local financiers. Moreover, sources said that the interests at this stage have reached more than 600 million Br.

Do we know any wealthy Ethiopians?

boris

Do we know any wealthy Ethiopians?

There's one that keeps emailing me with millions in diamonds stashed in a cache somewhere and just needs $10,000 to retrieve them ...

Rocco

I remember reading about that diamond e-mail scam. Hope no one fell for it but I'm sure some did.

I'm pretty sure al Amoudi was into refining sugar cane by product, I just can't remember where I put the link.

Rocco

I know I had a link connecting Al-Amoudi to the ethanol industry. I'll find it! Remember, Mima Nedelcovych (African Development Bank) lent himself 83 million (F.C. Schaffer and Associates) for the construction of the Finchaa Sugar Refinery AND ethanol facility.

So I start researching the sugar industry in Ethiopia and stumble on Sugar Auctions Continue to Suffer Depression

What was more interesting then was the cut-throat competition by companies such as Star Business Group, including its affiliates, and Abeba Gidey who were giving highly competitive prices, sometimes as high as 690.00 Br per quintal. Most managers and owners of these companies now behind bars for an alleged involvement of corruption while trading sugar and loans related to the Commercial Bank of Ethiopia.

Corruption Campaign May Backfire

Now under house arrest, General Tsadkan Gebre Tensaye seems to have been caught with his hand in the sugar bowl. Besides his involvement (through his brother and a friend) in illicit coffee exports, he is accused of illegal sugar sales. He is said to have abused his position as chairman of the board of directors of the Ethiopian Sugar Corporation (ESC) to sell sugar illegally to the Star Business Group (SBG) and businesswoman Yeshareg Zewde, owner of the Geta Trading firm.

and Busy Week for Courts-Charges of Corruption Against 54 Bank Officials, Business Persons

According to the charge filed by the Commission and presented to the First Criminal Bench of the Federal High Court, officials of the Commercial Bank of Ethiopia (CBE), against bank regulations, gave loans amounting to more than one billion birr in the period 1993-2001. The charge, which was divided into four counts, also alleged that the bank officials have allowed the loans without guaranteeing the sufficient amount of collateral required, and provided loans without proper audit report.

Ethiopia: President of leading bank found dead shot in his home

In January 2002, the then-president of the bank and 40 other senior officials were charged with granting loans of more than US$105 million to 13 businessmen who did not have the collateral required to support the loans. They were also charged with giving the businessmen inflated overdraft and withdrawal facilities worth US$84 million.
Rocco

Page 36 describes Al-Amoudi as the owner of Preem Petroleum, page 27 discusses ethanol production.

Was Al-Amoudi invovlved in the Finchaa Sugar Refinery and Ethanol Plant?

grateful1

Judge Taylor was appointed by President Jimmy Carter and that some of the many precedents she cited were written by liberal judges.

If not pointed out yet, it seemed you implied she was a Bush apointee.

In 1979, he nominated Anna Diggs Taylor, a politician and civil rights worker well known in Michigan Democratic circles as the woman who until 1971 ran the congressional office of her then husband, Rep. Charles Diggs (who was censured by the House and went to prison for taking kickbacks from congressional employees). I presume they are not now married.

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Wilson/Plame