News-Record.com

I smell impeachment. Good Job.

Mmm, impeachment. :) With extra peaches, please.

http://www.itmfa.com/

can i get cream with that im-peach-ment... mmm.

There is no valid reason to stay the injunction. No harm is done by keeping the ruling in force as all that means is that the Administration would simply have to quit violating the Constitution and Bill of Rights. They could still go on with their surveillance program, provided it is truly legal, by acquiring warrants from a judge after a free pass period of 72 hours (ie, obey FISA). And this only applies to American citizens. They don't need no stinking warrant when listening into non-citizen communications.

Nothing needs to stop here except for the illegal actions. If the government isn't doing anything wrong, they have nothing to worry about by going through a judge to get a [expletive] warrant.

Lower court rulings by liberal activist judges are rarely sound basis for changing the direction of an entire nation's anti-terrorist actions.
Nor should they be.

"activist judge" = "judge with whom I disagree"

I smell impeachment. Good Job.

sorry but violating the oath of office, subverting the Constitution and breaking the law are not grounds for impeachment. It is reserved only for presidential [oral sex].

Out of curiosity, jaycee, what part of her ruling do you consider to be "activist"? I've only skimmed, but t doesn't look to me as if she's broken any new legal ground.

jaycee is again predictable with his response, parroting a Republican talking point.

Usurpations of the People's rights by neo-conservative activist Chief Executives are rarely sound basis for changing the direction of an entire nation's rule of law. Nor should they be.

The Judicial Branch does not make laws, nor does the Executive Branch.

Lex wrote:
"As always, Glenn Greenwald is your expert."

So, Lex, if 50% of the people guessed that this would happen and 50% guessed it wouldn't, then the 50% who had their "guess" come to pass are instant *experts*??
You crack me up.

It will be interesting to see how appellate courts handle this complex issue, or if the matter is rendered moot by congressional action in the meantime.

There are two competing interests here- the Presidents authority to conduct a war and what powers are inherent in that authority and the civilian interests addressed by FISA. The District Court judge touched on this convergence, but I don't think she said enough to clarify the issue. Certainly, her reasoning supports her conclusions, but I would like to hear more analysis. I expect we will get that in due course when this matter is ruled on by a higher court with several justices instead of one person.

I also have to add that congressional action in the name of national security might satisfy the warrant exception to the Fourth Amendment if the Court was to find that a genuine national security interest was at stake. See cases on "exigent circumstances" permitting warrantless searches without violating the Fourth Amendment.

I am also unsure whether the Fourth Amendment analysis offered by the judge is really the core issue when dealing with international military affairs. But as I stated above, it will be interesting to see the additional legal analysis offered by a panel of justices when the matter is appealed.

Lex, the "activist" portion of her ruling, *in my opinion* has to do with a legal concept known as "standing."
To bring a legitimate action against another the plaintiff must show that some damage or injury occurred, that the defendant was the cause of that damge or injury, and that it can be redressed by a court action.
*In my opinion* there is not sufficient substantiation of damage or injury. I believe the judge stretched this beyond the bounds in her findings. Again, that's my opinion. Obviously, she does not see things the same way I do, LOL.
*In my opinion* the journalists are banking that the mere possibility of future, unknown damage is sufficient for their action.
The basis of their claim appears to be that because journalists consort with terrorists, they may suffer from being monitored. Please correct me if I'm misstating this. *In my opinion* that's the purpose of the program: To monitor terrorists. I don't think it's necessary that BOTH parties to a communication be terrorists; one will suffice to warrant scrutiny.
Anyway, the legal battle has just begun. The coming weeks will see appeal arguments from both sides and probably a legal resolution.

PotatoStew got it right in his/her comment above.

Have a good weekend,

jaycee: So, Lex, if 50% of the people guessed that this would happen and 50% guessed it wouldn't, then the 50% who had their "guess" come to pass are instant *experts*??

Greenwald didn't guess. He's an attorney who has litigated cases related to this one. The legal defenses offered for the program were 1) cobbled together after it was disclosed -- there's no record of any research or analysis having been done by government lawyers prior to the program's beginning -- which strongly suggest that the government knew the program wouldn't pass court muster but also was pretty sure it would never end up in front of a court in the first place; and 2) were pretty weak to begin with. Any plain reading of the AUMF clearly indicates that it doesn't encompass warrantless wiretapping of U.S. citizens in this country who are not suspected of terrorism. And anyone relying on the president's Artice II powers has to know about Youngstown.

You crack me up.

Hey, I live to serve.

Sam: There are two competing interests here- the Presidents authority to conduct a war and what powers are inherent in that authority and the civilian interests addressed by FISA.

Indeed. What I understand the judge to be saying is that because the president has only those powers enumerated by the Constitution, one cannot presume him to have any "inherent" authority that the Constitution specifically denies him (e.g., warrantless wiretapping).

The District Court judge touched on this convergence, but I don't think she said enough to clarify the issue.

I thought she was clear, even as I thought that she didn't make the strongest argument she could have made in her ruling. But then I'm not a lawyer.

Certainly, her reasoning supports her conclusions ...

That's a gracious concession -- and, frankly, the first one I've heard or read from someone who, I presume, supports the program. Everything else I've read has simply dwelled on her sex, race, age, political affiliation and who appointed her. Some of the talk at FreeRepublic and RedState, for example, is quite ugly.

... but I would like to hear more analysis. I expect we will get that in due course when this matter is ruled on by a higher court with several justices instead of one person.

Ayep. I wouldn't be stunned if the First Amendment argument didn't hold up on appeal -- it seems both weak in its own right and contingent on the Fourth Amendment argument -- but even if it doesn't, the administration could still be in a world of hurt. At any rate, we shall see.

Sam: I also have to add that congressional action in the name of national security might satisfy the warrant exception to the Fourth Amendment if the Court was to find that a genuine national security interest was at stake. See cases on "exigent circumstances" permitting warrantless searches without violating the Fourth Amendment.

Sure. But given the large number of people apparently affected by the program, most of whom are neither terrorists nor involved in any meaningful way with national security, I'd consider it very unlikely that a court would be able to come up with any factual basis for such a finding.

I am also unsure whether the Fourth Amendment analysis offered by the judge is really the core issue when dealing with international military affairs.

But the scope of the program takes it far beyond the range of int'l military affairs.

But as I stated above, it will be interesting to see the additional legal analysis offered by a panel of justices when the matter is appealed.

It will. For one thing, I expect plaintiffs' arguments to be bolstered on appeal by Hamdan, the ramifications of which I addressed here).

jaycee: Lex, the "activist" portion of her ruling, *in my opinion* has to do with a legal concept known as "standing."

OK, good so far. As it happens, I also think standing might be the weakest part of plaintiffs' case, although we disagree on how weak it is.

To bring a legitimate action against another the plaintiff must show that some damage or injury occurred, that the defendant was the cause of that damge or injury, and that it can be redressed by a court action.

Not being privy to all the evidence, I can't say how strong the evidence of damage is. But I will say that if there's evidence that people abroad who used to talk to plaintiffs will no longer do so because of the program, that's damage. For not just journalists but also academic researchers, communication is vital. And certainly, an end to the illegal program likely would restore some, if not all, of those communications.

*In my opinion* the journalists are banking that the mere possibility of future, unknown damage is sufficient for their action.

They might be. But it is fact, not opinion, according to the ruling, that plaintiffs claim that they have already been damaged by former communicants now refusing to speak to them, and nothing in the ruling (again, I'm not speaking about the evidence, not having seen it) disproves that claim.

The basis of their claim appears to be that because journalists consort with terrorists, they may suffer from being monitored. Please correct me if I'm misstating this.

You're misstating this. They consort (more precisely, "communicate") with people abroad for whom there is no evidence of terrorist involvement, possibly in addition to legitimate terrorism suspects.

*In my opinion* that's the purpose of the program: To monitor terrorists. I don't think it's necessary that BOTH parties to a communication be terrorists; one will suffice to warrant scrutiny.

Two responses: 1) A lot of people have been monitored for whom no evidence of terrorist involvement exists, and many of those people are "U.S. persons" as defined by FISA -- people for whom surveillance unconditionally requires a warrant. 2) EVEN IF one party to the conversation were a terrorism suspect, THE GOVERNMENT STILL MUST OBTAIN A WARRANT WITHIN 72 HOURS OF BEGINNING SURVEILLANCE ... which is all I've ever asked for.

All that said, I appreciate your actually making the effort to argue on substantive grounds. I therefore must ask: Who are you, and what have you done with jaycee? :-)

Lex wrote:
“But given the large number of people apparently affected by the program, most of whom are neither terrorists nor involved in any meaningful way with national security…”

Where do you get the information to conclude that a “large” number of people have been “affected?” Not even the plaintiffs in this case claim they are “affected,” only that they MIGHT be affected. That’s where the activism of this liberal judge comes into play. The requirement of “standing” to sue does not appear to pass muster, yet the judge ignores it and makes a ruling to further her liberal political beliefs. It’s what activist judges do.
Using legal logic such as this, I could drive around the city and jot down the addresses of every dog owner in town and sue each one because his dog “might” bite me someday. It’s similar to an “insurable interest.” I can’t get life insurance on a famous person of my choosing and profit from his death; I have no insurable interest.
The plaintiffs complain that by knowingly associating themselves with known terrorists they *might* *possibly* *could be* a party to electronic surveillance. Well, duh! If a reporter in New York City meets with a Mafia Boss whom the reporter knows is under FBI surveillance, he can expect to have his picture taken with said Boss, no?

No one has yet made a valid claim of any harm, damage, or wrongful injury from the US government’s terrorist surveillance programs.

Sorry, Lex, you and I were writing at the same time and our posts crossed in cyberspace.
I am, indeed, jaycee, you leftist, liberal sockpuppet!! :-)

jaycee: Not even the plaintiffs in this case claim they are "affected," only that they MIGHT be affected. That’s where the activism of this liberal judge comes into play.

From page 2 of the ruling: "[Plaintiffs] conducted regular international telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship. Many of their communications are and have been with persons in the Middle East. Each plaintiff has alleged a 'well-founded belief' that he, she, or it, has been subjected to Defendants' interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications." (emphasis added)

So, to be clear, they're not alleging that they might be damaged, they're alleging that they have been damaged. Absent the evidence, I can't say whether their allegations are true, but the damage in this case is not speculative. Plaintiffs are alleging real damage already has occurred, as well as that more will occur if the program continues. So to that extent, at least, they have standing (assuming the court finds sufficient evidence that the damage alleged, or some of it, actually has happened).

So your basis for claiming that the judge ruled improperly on the standing issue is wrong. That's not to say the judge was correct -- again, we haven't seen the evidence -- but you have yet to prove that she ruled incorrectly. Accordingly, your characterization of her as "liberal" and "activist" remains, at least so far, without basis.

The plaintiffs complain that by knowingly associating themselves with known terrorists they *might* *possibly* *could be* a party to electronic surveillance.

Show me where they have made any such claim. You can't because they haven't. The closest any plaintiff might come is that one or more of the lawyers might be representing terrorism suspects as part of their job as attorneys -- I can't recall whether any of the plaintiffs is, in fact, doing so -- but no one is claiming they have the right to communicate with "known terrorists" without surveillance. Please don't make stuff up.

You said it yourself, "Each plaintiff has alleged a 'well-founded belief'..."
In other words, they BELIEVE they've been wronged. They "imagine" they've been wronged. They "think" they've been wronged.
Heck, if I have a "well founded belief" that a US government satellite may fall out of the sky and hit me in the head can I sue, too? I guess I could in front of Judge Taylor.

The point, jaycee, is that YOU claimed they were improperly granted standing because they had ONLY alleged POTENTIAL harm, and that you were factually, objectively wrong in describing what they alleged. In fact, they alleged ACTUAL AND ONGOING harm.

I said that *in my opinion* their claim did not meet the bar for "standing" because it did not appear *to me* that they sufficiently showed damage, injury, or a wrongful action. *I* don't believe their claims of damage are definitive enough to meet a legal standard. Obviously, Judge Taylor did not see it that way.
I expect the government to make a similar claim about "standing" in their appeals and to argue on some other issues.
Hey, this here blog-thing is about our opinions, here's mine!

Yes, but you also said, as a factual assertion, "Not even the plaintiffs in this case claim they are 'affected,' only that they MIGHT be affected." That assertion is objectively false.

Jaycee, here's a question on the subject I've been meaning to ask you. You say that we shouldn't be concerned about the NSA program as it exists, because it's only used to listen in on terrorists. If the current (or a future) administration decided to listen in on political opponents instead, what would prevent them from doing so, since there is no judical oversight?

Lex, my point was that you should not confuse allegations and claims in a lawsuit with facts. The plaintiffs alleged an intangible injury, a "feeling" or "belief" alleged to be caused by the government. The burden of proof is on the plaintiff, it's difficult to prove a "thought" or feeling. Just like the example I used with suing dog owners because I "feel" their dogs might someday possibly bite me, I don't think it meets the burden of an injury. Heck, if the plaintiffs claimed in a lawsuit that Don Rumsfeld got on all fours and howled at the moon it wouldn't make it a fact.

potatostew, what keeps you from stealing from your employer? What keeps a policeman from robbing stores with his city-bought pistol? What keeps a pharmacist from giving you placebos and charging you for real medicine? What keeps your mailman from stealing your mail?
Most businesses, government entities, etc., police themselves from within. *In my opinion* to suggest that each and every one of the tens of thousands of people involved in a government program, from the vendor to the client, can only be kept "clean" by outside oversight is laughable. Even former Generals in the military are speaking out on things they disagreed with in the last few years; malfeasance and criminal acts in the government (regardless of what the media would have you believe) seldom stay hidden for long.

jaycee: Lex, my point was that you should not confuse allegations and claims in a lawsuit with facts. The plaintiffs alleged an intangible injury, a "feeling" or "belief" alleged to be caused by the government.

I did not confuse allegations and claims with fact. I simply pointed out that you made a factual assertion that was not accurate.

Keep in mind, too, that in their sworn complaint, plaintiffs stated as a fact that people in the Mideast who had been communicating before knowledge of the program became public now no longer do so. (They didn't say only that they FEAR or BELIEVE that those people will no longer communicate with them.) For someone involved in the kinds of work in which plaintiffs engage, that's actual damage they're swearing to.

I KNOW that the allegations depend on evidence. In a couple of my earlier comments, I even included disclaimers to that effect (e.g., "Not being privy to all the evidence, I can't say how strong the evidence of damage is. But I will say that if there's evidence ... ") I did so presuming that evidence had been presented to support the allegations or else the judge wouldn't have accepted the damages as fact, as she appeared to do in her ruling.

As it happens, per the most recent post update linked above, the judge ruled BEFORE DISCOVERY, meaning, I think, that even if there were evidence, she ruled before it had become a part of the official record. But I didn't know that when I posted my earlier comments.

Lex, I think we're arguing semantics here. Just because someone alleges something to be a fact in a lawsuit it remains the exclusively purview of the court to determine if it is, in fact, a fact. It's up to the plaintiff to satisfactorily prove his allegation as a fact in court.
An allegation is an allegation. A claim is a claim. The court decides if it's a fact or not. That's what courts do.
One cannot usually testify in court as to the intent or thought process of another.
Without the testimony of the terrorists with whom the reporters were being buddy-buddy, the plaintiffs claim as to the mental state or thoughts or intent of the terrorists is hearsay at best, speculation at worst. Only the NSA's Mark I, Model 2 "Mind Reader Program" is capable of doing that. :-)

While it may be a "fact" that the terrorists are no longer communicating with the plaintiff journalists, the journalists would not be able to testify as to "why" the terrorists aren't talking to them anymore. Only the terrorists can present evidence of their reasoning or thought processes behind their actions. The communication could have been terminated for any number of reasons regardless of the claims of the plaintiffs. The plaintiffs may state the fact that they and the terrorists aren't talking, and may state why the plaintiffs themselves terminated communications (if they did so), but they can't testify for the terrorists side of the story.
I really hate to belabor this semantics issue, but I think we're confusing allegations, facts, testimony, and competency to testify to certain things in court.
I do think this is an important case and an important issue, and I'm trying to argue it congenially here.

If you're trying to be congenial (which, snark aside, you do actually appear to have been doing upthread), why do you keep saying that the people the plaintiffs were communicating with are terrorists?

Huh? That's the crux of the whole case, Lex. Reporter talks to terrorist, terrorist is afraid of NSA program, terrorist quits talking to reporter, reporter suffers "injury." Did I miss something?
Oh, and before you go on and on about non-terrorists being targeted, that's not the way the program works. It doesn't look at all calls and pick out the terrorists, it targets the terrorists phones and monitors patterns, etc. Only terrorists are targeted, so the reporters can only be a party to it if they're talking to terrorists.

The Publius take was an interesting procedural argument that I had not heard yet. It does seem that the judge rushed passed some procedural issues such as the one Publius referred to and the standing issue that others have raised in order to deal with the substance. That does seem highly unusual unless the judge had her own agenda.

The substantive portion is supported by case law, however it will be interesting to see a dissent. Often times when I am reading an appellate opinion, I think "yeah, this makes sense. This side should have won". Then I read the dissent and it makes even more sense. So I am withholding judgment on the substance of this judges decision. I don't think it contains enough analysis as I previously mentioned, but she does make at least a colorable argument.

The rush to judgment does seem indicative of political motivations. Publius is probably right when he stated "This is pure naked politics dressed up as law. It is an insult to the legal system. And the Sixth Circuit is going to squash it like a bug."

If it is squashed like a bug, it will be interesting to see if the Sixth Circuit takes up the whole case or reverses it on procedural grounds. If they do the latter only, it may be a while before the heart of the matter is resolved.

Jaycee, thanks for the reply to my question.

I'm not convinced that relying on the administration to police itself would be effective. If they did decide to abuse their surveillance powers, by what mechanism could a case be made against them?

Anyone being listened in on most likely would not be aware of it. That means it would be up to someone in the administration or the NSA to come forward as a whistleblower. In *my* opinion, neither would be reliable.

Within the administration itself, there would probably be a relatively small number of people in on the wrongdoing. Within the NSA, how many people are actually privy to exactly *who* is being listened in on for *what reason*? The clincher, in the event that someone actually does identify wrongdoing and wants to come forward, is that it would be illegal for them to do so (disclosing details about a covert program) and the administration can still surpress any evidence by claiming state secrets, as they have done in the past.

I personally don't trust any administration - not just the Bush administration - not to abuse this power. The whole reason FISA is even in existence is because of past abuses of surveillance powers. You are probably right that eventually, somehow, any wrongdoing would come to light. But in the meantime, while waiting for that to happen, how much damage could be done by a president who decided to use surveillance for political ends?

One more thing, just to be clear: I am definitely *not* saying that there should be no surveillance - just that there should be judicial oversight when it involves US citizens.

Which leads me to another question for you jaycee, since you're being so congenial today :) ... If we can say that the programs in question only target terrorists, then we must have reason to think they are terrorists. If we have reason to think that they are terrorists, then it should be easy to get a warrant when applicable. So my question is, why not just get a warrant?

Yawn.

The thing that tips me off that this is a clear move by an activist judge that is:

1) Lex supports it

2) The FIRST reply post to this is gleeful "impeachment"

This is so obviously a political move by a judge who has a bone to pick (see www.sweetness-light.com) planted throughout the blogosphere by people like Lex -- who also have a bone to pick..

Lex, I'm STILL waiting on your whole mea culpa about Cheney being in BIG, BIG trouble regarding the who Plame "leak" -- which WAS NOT A LEAK!!!

Where are you on that these days? I remember your ominous posts of months ago that suggested serious legal troubles for Cheney.. still waiting..

Lex, you have NO credibility. None.

Oh Jesus.. and I just went back and read your original post...

Constitutional Crisisville? Population: You?

Lex, this hyperbole is expected from people who don't also have to sit down and write or edit NEWS stories in a newspaper that CLAIMS to be non-biased...

But, it's very over the line for someone such as yourself who has a desk in the newsroom.

I'm STUNNED that JR allows this to go on. It's clearly over the line.

I won't even get into the ridiculous attempts by EVERYONE in the press for the past 25 years to create another Watergate... it's almost as if you're PRAYING for it to happen.

I heard the liberal law professers say last night on Fox News (real news) the judges decision was carrying out her liberal adgenda.
Even the liberals think this decision stunk. The way I see it 1500-2000 lifes were saved last week. I do not feel the goverment gives a hoot about my personal life unless I want to bring harm to someone. Could it be that Lex wants harm to come to people????

Jack: I haven't expressed an opinion on whether the opinion "stunk" or not. I have pointed out, and linked to, critiques suggesting that parts of the ruling, at least, are weak. (Pretty much everyone seems to agree, however, that the ruling is almost bulletproof on violating FISA and almost so on Fourth Amendment questions, particularly in light of the Supreme Court's June Hamdan ruling.)

I'm not sure what you mean by asserting that 1,500-2,000 lives were saved last week.

I'm happy that you believe the government doesn't care about your personal life and that the only people whose personal lives it cares about are those who want to harm others. Having been paid to watch government for more than 20 years, I'm a lot more cynical on this point than you.

Beyond that, privacy isn't something the government gives you. It's an inherent right. If you want to give away your rights, fine, but if you are going to try to give away mine, too, I'm going to have to object.

Finally, if you want to allege in a public forum that I want harm to come to people, by all means provide evidence.

Jim: Lex, I'm STILL waiting on your whole mea culpa about Cheney being in BIG, BIG trouble regarding the who Plame "leak" -- which WAS NOT A LEAK!!!

Jim, I've never said Cheney was in big, big trouble regarding the leak.

As for "constitutional crisis," I'll admit there's no dictionary definition, no objective criterion. But if it's not a constitutional crisis when two federal courts, one of them the nation's highest, effectively accuse the executive of lawbreaking within six weeks of each other, then I'd hate to live through any situation that would meet your criteria, whatever they might be.

I won't even get into the ridiculous attempts by EVERYONE in the press for the past 25 years to create another Watergate... it's almost as if you're PRAYING for it to happen.

Tell it to Lawrence Walsh, Jim.

And, please, give me even one example of someone "trying to create another Watergate" in the absence of government wrongdoing. No one is trying to create another Watergate. No one that I know of is praying for another Watergate to happen. (Do you honestly think people sit around praying for a constitutional crisis?) Some of us just want the government to obey the law, get a mite touchy when it doesn't and expect people in government to follow the same laws the rest of us have to.

I'll agree with you that when the debate is over which direction to steer the country in, reporters need to keep their opinions to themselves. But when the debate is over whether or not to strap dynamite to the axle -- and torturing people as an instrument of national policy and spying on U.S. citizens in this country without a warrant constitute precisely that -- it is no ethical sin to speak out. In fact, I would submit that it is an affirmative duty.

Lex, the program you rant and rail against and fervently hope will be abolished is largely responsible for preventing the mass terrorist murder of 10 airliners full of innocent civilians a couple weeks ago. If you had your wish [about the NSA program being shut down] they'd all be dead. So, in a way, you do wish 1500-2000 people had been killed, don't you?
The liberals and the liberal media has been hanging on to each and every minor, insignificant, non-newsworthy snippet of anything they can find to "try" and find another Watergate. Dan Rather's National Guard story, Valerie Plame, Cheney's hunting accident, President Bush uttering a "dirty word", etc., etc., etc. The Dems/liberals never stop trying to make chicken [expletive] out of chicken salad in an attempt to destroy the Bush administration, garner more power for themselves, and go back to taking money out of your pockets and putting it into theirs.
Not only do liberals sit around "praying for a constitutional crisis" they plot and plan on how to generate them, whether the facts exist or not.

Lex, the program you rant and rail against and fervently hope will be abolished is largely responsible for preventing the mass terrorist murder of 10 airliners full of innocent civilians a couple weeks ago.

BZZT. Wrong answer, Jaycee! The British got administrative warrants from the equivalent of our Justice Department. It's not what our law would have required, but it was what THEIR law required. Let me say that again, since you have such trouble wrapping your head around the concept: THEY. FOLLOWED. THE. LAW.

And that's all I'm asking OUR government to do.

If you're going to equate that with "praying for a constitutional crisis," then you need to get the hell out of America and go live somewhere like Uzbekistan, where your ... unique ideas on governance are more in vogue.

And watch the language. This is a semi-respectable blog. :-)

"But if it's not a constitutional crisis when two federal courts, one of them the nation's highest, effectively accuse the executive of lawbreaking within six weeks of each other, then I'd hate to live through any situation that would meet your criteria, whatever they might be."

Funny you are still alive then Lex, because this happens all the time, not only with the President but Congress and state laws as well. You clearly
have just enough education to be dangerous, but not enough to know better. Just because the Court finds something unconstitutional or a violation of
constitutional law doesn't make it a crime as you are suggesting.

Then you say "I'll agree with you that when the debate is over which direction to steer
the country in, reporters need to keep their opinions to themselves." Translation= when we have a Democrat in the White House. Give it up Lex.
You have no business in the newsroom. JR should wise up to that and send you exclusively to Allen.

So "crap" is now a dirty word??? I deliberately didn't use the "S" word out of respect for your readers. :-)

And, Lex, in case you haven't read about it, the U.S. provided the Brits with intel gathered in the NSA's LEGAL terrorist surveillance program. As a matter of fact, it was a rather important and significant contribution to the prevention of this plot. Without the NSA program, it's likely the plot would have succeeded and you and your lib buddies would be applauding the deaths of thousands as you ran to your word processors to attack President Bush for not doing "enough" to stop terrorists.
Folks like you feed on death and destruction as you warp it into something you can use to express your hatred for conservatives and your anger over losing power in the last few elections. I pray your kind never has the reins of our country again.

Sam: Just because the Court finds something unconstitutional or a violation of
constitutional law doesn't make it a crime as you are suggesting.

Violating FISA is a crime, Sam.

Sam: Translation= when we have a Democrat in the White House. Give it up Lex.
You have no business in the newsroom. JR should wise up to that and send you exclusively to Allen.

There you go again, Sam, trying to read my mind. Good thing that's not how you make your living. You'd starve.

jaycee: So "crap" is now a dirty word??? I deliberately didn't use the "S" word out of respect for your readers. :-)

Yeah. Actually, we're not even supposed to use "damn" or "hell" in the print edition unless the M.E. or JR signs off on it. It's a tad looser on the blogs, but not much.

And, Lex, in case you haven't read about it, the U.S. provided the Brits with intel gathered in the NSA's LEGAL terrorist surveillance program. As a matter of fact, it was a rather important and significant contribution to the prevention of this plot.

No intelligence gathered without a warrant WHERE A WARRANT WAS REQUIRED was used in the investigation. Because this is a position that many people who support the illegal program can't seem to wrap their heads around, I'll spell it out: I favor surveillance. But when that surveillance must target U.S. citizens in this country, it must be authorized by a court-issued warrant as FISA requires. Period. Got it?

Without the NSA program, it's likely the plot would have succeeded and you and your lib buddies would be applauding the deaths of thousands

jaycee, please point to one real-life American liberal who would "be applauding the deaths of thousands." Just one. C'mon. I'll wait.

... as you ran to your word processors to attack President Bush for not doing "enough" to stop terrorists.

Uh, no, as we demanded an investigation into how and why any such attack succeeded, which is not quite the same thing. Government must be accountable and all that. I would just hope that the administration would not resist such an investigation as long and vigorously as it did the 9/11 investigation, and that it would not delay implementing any practical recommendations as long as it has those in the 9/11 report.

"No intelligence gathered without a warrant WHERE A WARRANT WAS REQUIRED was used in the investigation."
You're correct, because the NSA program that gathered intel and provided it to the Brits needs no warrant. It's legal, and I'm glad you finally realize that.
Surveillance that "targets" US citizens usually does require a warrant, we agree on that. But the NSA programs DOES NOT target US citizens, it targets terrorists overseas. I'm glad you finally understand how this works. Feel free to go to Bubba's blog for a better explanation of the many programs used to gather surveillance on terrorists; I wrote a brief explanation there the other day for those like you who don't know what you're talking about.

And here's partial list of those who would applaud anything (including the deaths of their fellow citizens) they can use to twist the truth and try to use it against President Bush:

A

Abercrombie, Neil (Democrat, Hawaii District 1)
Acevedo-Vila, Anibal (Popular Democrat, Puerto Rico At Large)
Ackerman, Gary (Democrat, New York District 5)
Akaka, Daniel K (Democrat, Hawaii Senate)
Allen, Tom (Democrat, Maine District 1)
Andrews, Robert E (Democrat, New Jersey District 1)

B

Baca, Joe (Democrat, California District 43)
Baird, Brian (Democrat, Washington District 3)
Baldwin, Tammy (Democrat, Wisconsin District 2)
Baucus, Max (Democrat, Montana Senate)
Bayh, Evan (Democrat, Indiana Senate)
Becerra, Xavier (Democrat, California District 31)
Bell, Chris (Democrat, Texas District 25)
Berkley, Shelley (Democrat, Nevada District 1)
Berman, Howard L (Democrat, California District 28)
Berry, Marion (Democrat, Arkansas District 1)
Biden, Joseph R Jr (Democrat, Delaware Senate)
Bingaman, Jeff (Democrat, New Mexico Senate)
Bishop, Sanford D Jr (Democrat, Georgia District 2)
Bishop, Timothy H (Democrat, New York District 1)
Blumenauer, Earl (Democrat, Oregon District 3)
Bordallo, Madeleine Z (Democrat, Guam At Large)
Boswell, Leonard L (Democrat, Iowa District 3)
Boucher, Rick (Democrat, Virginia District 9)
Boxer, Barbara (Democrat, California Senate)
Boyd, Allen (Democrat, Florida District 2)
Brady, Robert A (Democrat, Pennsylvania District 1)
Breaux, John (Democrat, Louisiana Senate)
Brown, Corrine (Democrat, Florida District 3)
Brown, Sherrod (Democrat, Ohio District 13)
Butterfield, G K (Democrat, North Carolina District 1)
Byrd, Robert C (Democrat, West Virginia Senate)

C

Cantor, Eric (Republican, Virginia District 7)
Cantwell, Maria (Democrat, Washington Senate)
Capps, Lois (Democrat, California District 23)
Capuano, Michael E (Democrat, Massachusetts District 8)
Cardin, Ben (Democrat, Maryland District 3)
Cardoza, Dennis (Democrat, California District 18)
Carper, Tom (Democrat, Delaware Senate)
Carson, Brad R (Democrat, Oklahoma District 2)
Carson, Julia (Democrat, Indiana District 7)
Case, Ed (Democrat, Hawaii District 2)
Chandler, Ben (Democrat, Kentucky District 6)
Christian-Green, Donna (Democrat, Virgin Islands At Large)
Clay, William L Jr (Democrat, Missouri District 1)
Clinton, Hillary Rodham (Democrat, New York Senate)
Clyburn, James E (Democrat, South Carolina District 6)
Conrad, Kent (Democrat, North Dakota Senate)
Conyers, John Jr (Democrat, Michigan District 14)
Cooper, Jim (Democrat, Tennessee District 5)
Corzine, Jon S (Democrat, New Jersey Senate)
Costello, Jerry F (Democrat, Illinois District 12)
Cramer, Bud (Democrat, Alabama District 5)
Crowley, Joseph (Democrat, New York District 7)
Cummings, Elijah E (Democrat, Maryland District 7)

D

Daschle, Tom (Democrat, South Dakota Senate)
Davis, Artur (Democrat, Alabama District 7)
Davis, Danny K (Democrat, Illinois District 7)
Davis, Jim (Democrat, Florida District 11)
Davis, Lincoln (Democrat, Tennessee District 4)
Davis, Susan A (Democrat, California District 53)
Dayton, Mark (Democrat, Minnesota Senate)
DeFazio, Peter (Democrat, Oregon District 4)
DeGette, Diana (Democrat, Colorado District 1)
Delahunt, Bill (Democrat, Massachusetts District 10)
DeLauro, Rosa L (Democrat, Connecticut District 3)
Deutsch, Peter (Democrat, Florida District 20)
Dicks, Norm (Democrat, Washington District 6)
Dingell, John D (Democrat, Michigan District 15)
Dodd, Chris (Democrat, Connecticut Senate)
Doggett, Lloyd (Democrat, Texas District 10)
Dooley, Cal (Democrat, California District 20)
Dorgan, Byron L (Democrat, North Dakota Senate)
Doyle, Mike (Democrat, Pennsylvania District 14)
Durbin, Dick (Democrat, Illinois Senate)

E

Edwards, Chet (Democrat, Texas District 11)
Edwards, John (Democrat, North Carolina Senate)
Emanuel, Rahm (Democrat, Illinois District 5)
Engel, Eliot L (Democrat, New York District 17)
Eshoo, Anna (Democrat, California District 14)
Etheridge, Bob (Democrat, North Carolina District 2)
Evans, Lane (Democrat, Illinois District 17)

F

Faleomavaega, Eni F H (Democrat, American Samoa At Large)
Farr, Sam (Democrat, California District 17)
Fattah, Chaka (Democrat, Pennsylvania District 2)
Feingold, Russell D (Democrat, Wisconsin Senate)
Feinstein, Dianne (Democrat, California Senate)
Filner, Bob (Democrat, California District 51)
Ford, Harold E Jr (Democrat, Tennessee District 9)
Frank, Barney (Democrat, Massachusetts District 4)
Frelinghuysen, Rodney (Republican, New Jersey District 11)
Frost, Martin (Democrat, Texas District 24)

G

Gephardt, Richard A (Democrat, Missouri District 3)
Gonzalez, Charlie A (Democrat, Texas District 20)
Gordon, Bart (Democrat, Tennessee District 6)
Graham, Bob (Democrat, Florida Senate)
Green, Gene (Democrat, Texas District 29)
Grijalva, Raul M (Democrat, Arizona District 7)
Gutierrez, Luis V (Democrat, Illinois District 4)

H

Harkin, Tom (Democrat, Iowa Senate)
Harman, Jane (Democrat, California District 36)
Hastings, Alcee L (Democrat, Florida District 23)
Herseth, Stephanie (Democrat, South Dakota District 1)
Hill, Baron (Democrat, Indiana District 9)
Hinchey, Maurice (Democrat, New York District 22)
Hinojosa, Ruben (Democrat, Texas District 15)
Hoeffel, Joseph M (Democrat, Pennsylvania District 13)
Holden, Tim (Democrat, Pennsylvania District 17)
Hollings, Fritz (Democrat, South Carolina Senate)
Holt, Rush (Democrat, New Jersey District 12)
Honda, Mike (Democrat, California District 15)
Hooley, Darlene (Democrat, Oregon District 5)
Hoyer, Steny H (Democrat, Maryland District 5)

I

Inouye, Daniel K (Democrat, Hawaii Senate)
Inslee, Jay R (Democrat, Washington District 1)
Israel, Steve (Democrat, New York District 2)

J

Jackson Lee, Sheila (Democrat, Texas District 18)
Jackson, Jesse Jr (Democrat, Illinois District 2)
Jefferson, William J (Democrat, Louisiana District 2)
John, Chris (Democrat, Louisiana District 7)
Johnson, Eddie Bernice (Democrat, Texas District 30)
Johnson, Tim (Democrat, South Dakota Senate)
Jones, Stephanie Tubbs (Democrat, Ohio District 11)

K

Kanjorski, Paul E (Democrat, Pennsylvania District 11)
Kaptur, Marcy (Democrat, Ohio District 9)
Kennedy, Edward M (Democrat, Massachusetts Senate)
Kennedy, Patrick J (Democrat, Rhode Island District 1)
Kerry, John (Democrat, Massachusetts Senate)
Kildee, Dale E (Democrat, Michigan District 5)
Kilpatrick, Carolyn Cheeks (Democrat, Michigan District 13)
Kind, Ron (Democrat, Wisconsin District 3)
Kleczka, Jerry (Democrat, Wisconsin District 4)
Kohl, Herb (Democrat, Wisconsin Senate)
Kucinich, Dennis J (Democrat, Ohio District 10)

L

Lampson, Nick (Democrat, Texas District 9)
Landrieu, Mary L (Democrat, Louisiana Senate)
Langevin, Jim (Democrat, Rhode Island District 2)
Lantos, Tom (Democrat, California District 12)
Larsen, Rick (Democrat, Washington District 2)
Larson, John B (Democrat, Connecticut District 1)
Lautenberg, Frank R (Democrat, New Jersey Senate)
Leahy, Patrick (Democrat, Vermont Senate)
Lee, Barbara (Democrat, California District 9)
Levin, Carl (Democrat, Michigan Senate)
Levin, Sander (Democrat, Michigan District 12)
Lewis, John (Democrat, Georgia District 5)
Lieberman, Joe (Democrat, Connecticut Senate)
Lincoln, Blanche (Democrat, Arkansas Senate)
Lipinski, Bill (Democrat, Illinois District 3)
Lofgren, Zoe (Democrat, California District 16)
)
Lowey, Nita M (Democrat, New York District 18)
Lucas, Ken (Democrat, Kentucky District 4)
Lynch, Stephen F (Democrat, Massachusetts District 9)

M

Majette, Denise L (Democrat, Georgia District 4)
Maloney, Carolyn B (Democrat, New York District 14)
Markey, Edward J (Democrat, Massachusetts District 7)
Marshall, Jim (Democrat, Georgia District 3)
Matheson, Jim (Democrat, Utah District 2)
McCarthy, Carolyn (Democrat, New York District 4)
McCarthy, Karen (Democrat, Missouri District 5)
McCollum, Betty (Democrat, Minnesota District 4)
McDermott, Jim (Democrat, Washington District 7)
McGovern, James P (Democrat, Massachusetts District 3)
3)
McIntyre, Mike (Democrat, North Carolina District 7)
McNulty, Michael R (Democrat, New York District 21)
Meehan, Marty (Democrat, Massachusetts District 5)
Meek, Kendrick B (Democrat, Florida District 17)
Meeks, Gregory W (Democrat, New York District 6)
Menendez, Robert (Democrat, New Jersey District 13)
Michaud, Mike (Democrat, Maine District 2)
Mikulski, Barbara A (Democrat, Maryland Senate)
Millender-McDonald, Juanita (Democrat, California District 37)
Miller, Brad (Democrat, North Carolina District 13)
Miller, George (Democrat, California District 7)
Miller, Zell (Democrat, Georgia Senate)
Mollohan, Alan B (Democrat, West Virginia District 1)
Moore, Dennis (Democrat, Kansas District 3)
Moran, Jim (Democrat, Virginia District 8)
Murray, Patty (Democrat, Washington Senate)
Murtha, John P (Democrat, Pennsylvania District 12)

N

Nadler, Jerrold (Democrat, New York District 8)
Napolitano, Grace (Democrat, California District 38)
Neal, Richard E (Democrat, Massachusetts District 2)
Nelson, Ben (Democrat, Nebraska Senate)
Nelson, Bill (Democrat, Florida Senate)
Norton, Eleanor Holmes (Democrat, Distict of Columbia At Large)

O

Oberstar, James L (Democrat, Minnesota District 8)
Obey, David R (Democrat, Wisconsin District 7)
Olver, John W (Democrat, Massachusetts District 1)
Ortiz, Solomon P (Democrat, Texas District 27)
Owens, Major R (Democrat, New York District 11)

P

Pallone, Frank Jr (Democrat, New Jersey District 6)
Pascrell, Bill Jr (Democrat, New Jersey District 8)
Pastor, Ed (Democrat, Arizona District 4)
Payne, Donald M (Democrat, New Jersey District 10)
Pelosi, Nancy (Democrat, California District 8)
Peterson, Collin C (Democrat, Minnesota District 7)
Pomeroy, Earl (Democrat, North Dakota District 1)
Price, David (Democrat, North Carolina District 4)
Pryor, Mark (Democrat, Arkansas Senate)

R

Rahall, Nick (Democrat, West Virginia District 3)
Rangel, Charles B (Democrat, New York District 15)
Reed, Jack (Democrat, Rhode Island Senate)
Reid, Harry (Democrat, Nevada Senate)
Reyes, Silvestre (Democrat, Texas District 16)
Rockefeller, Jay (Democrat, West Virginia Senate)
Rodriguez, Ciro D (Democrat, Texas District 28)
Ross, Mike (Democrat, Arkansas District 4)
Rothman, Steven R (Democrat, New Jersey District 9)
Roybal-Allard, Lucille (Democrat, California District 34)
Royce, Ed (Republican, California District 40)
Ruppersberger, Dutch (Democrat, Maryland District 2)
Rush, Bobby L (Democrat, Illinois District 1)
Ryan, Tim (Democrat, Ohio District 17)

S

Sabo, Martin Olav (Democrat, Minnesota District 5)
Sanchez, Linda (Democrat, California District 39)
Sanchez, Loretta (Democrat, California District 47)
Sandlin, Max (Democrat, Texas District 1)
Sarbanes, Paul S (Democrat, Maryland Senate)
Schakowsky, Jan (Democrat, Illinois District 9)
Schiff, Adam (Democrat, California District 29)
Schumer, Charles E (Democrat, New York Senate)
Scott, David (Democrat, Georgia District 13)
Scott, Robert C (Democrat, Virginia District 3)
Serrano, Jose E (Democrat, New York District 16)
Sherman, Brad (Democrat, California District 27)
Skelton, Ike (Democrat, Missouri District 4)
Slaughter, Louise M (Democrat, New York District 28)
Smith, Adam (Democrat, Washington District 9)
Snyder, Vic (Democrat, Arkansas District 2)
Solis, Hilda L (Democrat, California District 32)
Spratt, John M Jr (Democrat, South Carolina District 5)
Stabenow, Debbie (Democrat, Michigan Senate)
Stark, Pete (Democrat, California District 13)
)
Stenholm, Charles W (Democrat, Texas District 17)
Strickland, Ted (Democrat, Ohio District 6)
Stupak, Bart (Democrat, Michigan District 1)

T

Tanner, John (Democrat, Tennessee District 8)
Tauscher, Ellen (Democrat, California District 10)
Taylor, Gene (Democrat, Mississippi District 4)
Thompson, Bennie G (Democrat, Mississippi District 2)
Thompson, Mike (Democrat, California District 1)
Tierney, John F (Democrat, Massachusetts District 6)
Towns, Edolphus (Democrat, New York District 10)
Turner, Jim (Democrat, Texas District 2)

U

Udall, Mark (Democrat, Colorado District 2)
Udall, Tom (Democrat, New Mexico District 3)

V

Van Hollen, Chris (Democrat, Maryland District 8)
Velazquez, Nydia M (Democrat, New York District 12)
Visclosky, Pete (Democrat, Indiana District 1)

W

Waters, Maxine (Democrat, California District 35)
Watson, Diane E (Democrat, California District 33)
Watt, Melvin L (Democrat, North Carolina District 12)
Waxman, Henry A (Democrat, California District 30)
Weiner, Anthony D (Democrat, New York District 9)
Wexler, Robert (Democrat, Florida District 19)
Woolsey, Lynn (Democrat, California District 6)
Wu, David (Democrat, Oregon District 1)
Wyden, Ron (Democrat, Oregon Senate)
Wynn, Albert R (Democrat, Maryland District 4)

The president has already said publicly that the program targets some U.S. citizens in this country IN ADDITION TO people for whom no warrant is required. Otherwise, there would be no fuss, no muss and no problem.

And without checking, I presume you're alleging that every Democrat in Congress would applaud the deaths of their fellow citizens if they could use them against Bush. (Yup, Lieberman's on your list.)

Ohh-kay, jaycee. Could you please put down the keyboard gently and go take your medication? Thanks.

sam: I also have to add that congressional action in the name of national security might satisfy the warrant exception to the Fourth Amendment if the Court was to find that a genuine national security interest was at stake.

Sam: How can appellate courts consider that possibility when the government introduced no evidence to that effect before summary judgment?

Lex, you said ""I'll agree with you that when the debate is over which direction to steer the country in, reporters need to keep their opinions to themselves." This clearly means that you think it is okay for reporters to inject opinions in order to "steer the country" in the direction you prefer, which is the Democrat direction. This only confirms what critics of the MSM and the N&R have lamented for a long time that you are activists posing as newsmen. I don't see how JR can read this quote from you and keep you on the news beat.

You also clearly don't understand the difference between constituional law and stautory law.

Finally, as to your latest post, the government was trying to get passed summary judgment. As a matter of civil procedure, summary judgment is not appropriate prior to summary judgment because discovery has not been completed yet. This was one huge error by the judge and it alone would suffice to overturn the decision. The governments contention was that they did not have to produce the discovery requested. The Court should have ruled on that, allowed the government to appeal, and then heard the summary judgment depending on the outcome of the appeal.

Summary judgment is only appropirate when there are no disputes as to material facts such that the only issue is how the law applies to the facts. Here, the facts were not even presented yet. Bad, bad, bad.

"As a matter of civil procedure, summary judgment is not appropriate prior to summary judgment because discovery has not been completed yet." Should read:

"As a matter of civil procedure, summary judgment is not appropriate until after discovery is completed."

Sam: Lex, you said ""I'll agree with you that when the debate is over which direction to steer the country in, reporters need to keep their opinions to themselves." This clearly means that you think it is okay for reporters to inject opinions in order to "steer the country" in the direction you prefer, which is the Democrat direction.

Uh, no, Sam, it means just the opposite. Read much?

Summary judgment is only appropirate when there are no disputes as to material facts such that the only issue is how the law applies to the facts. Here, the facts were not even presented yet. Bad, bad, bad.

True, but apparently not the whole truth, per this comment at Volokh. The chronology suggests that the court instructed the government on May 31 to submit briefs on the substance of the case and that the government, for whatever reasons, chose not to do so. Does that fact (if fact it be) change your characterization, one way or the other?

There you go again, touting someone else's OPINION as fact when you refer to "True, but apparently not the whole truth, per this comment at Volokh."
Just because you find someone's OPINION that agrees with you doesn't make it the truth or a fact.
When are you going to learn the difference between FACT and OPINION?

Well, jaycee, based on the filings, it's a FACT that the judge directed the government to file briefs on the substance of the case as well as the state-secrets issue, and it's a FACT that the government, for whatever reason, chose not to do so DESPITE BEING DIRECTLY ORDERED TO BY THE JUDGE. It's a FACT that any facts alleged by one party to a suit and not disputed by the opposite party can be presumed to be FACT for the purposes of a summary-judgment ruling, under Rule 56 of the Federal Rules of Civil Procedure.

And it's a FACT that that's exactly what the judge appears to have done.

Enough facts for you?

Lex, I interpreted the use of the word "over" to mean "done" as opposed to "about". Reading it your way does have the opposite meaning. But it begs the question, are you practicing what you preach right now?

The reason the government did release the "substance" is because they believe it is priveliged information. They have the right to refuse and appeal the order to produce to a higher court. That should have been done before the judge ever considered summary judgment.

One more thing Lex, you are so wrong on the summary judgment response to Jaycee. The government in effect said they could not respond to the ACLU without divulging state secrets in the discovery phase. This is NOT the same as saying summary judgmemt was appropriate "because there was no dispute". The gov't said "we will never be able to know if there is a dispute because in order for the Plaintiff's to even try to establish a prima facie case, they need our information, and that information is privileged. Not only can they not prove their case because of this, we cannot defend our own because of it." This reasoning has been upheld by appellate courts in the past. So there clearly was a dispute about the facts only that dispute could not be aired without violating national security. Bad, bad, bad.

You can quote Rule 56 all you want, but you completely misunderstand its application and its proper use. You can't learn the intricacies of civil procedure by simply quoting a statute. Summary judgment in particular fills volumes of case law at all levels of the judiciary.

Think of it this way- summary judgment is essentially "if we agree that everything you say is true, we still win because the law favors us when applied to those facts." In this case, the gov't argued they haven't said anything, and didn't plan on saying anything, and weren't going to agree with anything because the only way to do so would violate national security secrets. Therefore, is no way the judge should have applied the summary judgment standard. There must be no dispute as to material facts before summary judgment is proper. Plaintiff's failed to establish material facts and the gov't failed to provide them. It was wrong for the court to assume the gov't was stipulating to any "facts" presented by the Plaintiff's and rule on summary judgment.

Two posts ago:

"The reason the government did release the "substance" is because they believe it is priveliged information. "

Should be "didn't release..."

Sam: Lex, I interpreted the use of the word "over" to mean "done" as opposed to "about". Reading it your way does have the opposite meaning.

OK. No harm, no foul.

But it begs the question, are you practicing what you preach right now?

Uh, technically, it raises the question, it doesn't beg the question. :-) But the answer is, yes: If you look at what I said, I said policy differences are off limits, but when the very foundations of our government, such as the Constitution and Bill of Rights, are at risk -- and I believe they are on the fronts of torture and warrantless wiretapping, for reasons I've discussed repeatedly before -- I think all Americans have a duty to speak out. If anyone wants to change the Constitution, there's a way to do it, and any such proposal can be debated on the merits in Congress and, if it passes Congress, the legislatures.

But trying to sidestep or ignore it, as appears to be happening in these cases, is a matter on which journalists have an affirmative duty to speak out.

Sam: The reason the government did release the "substance" is because they believe it is priveliged information. They have the right to refuse and appeal the order to produce to a higher court. That should have been done before the judge ever considered summary judgment.

The judge, relying on precedent, denied the state-secrets privilege claim and ordered them to produce. But for whatever reason, the government's lawyers DIDN'T refuse the order and appeal it when they had the chance. Why, then, can the judge not go ahead and rule?

It's on appeal now, along with a number of other issues. The government has refused the order by asserting the privilege.

Ah. OK.

"...Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a “recent grant” of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision."

http://www.judicialwatch.org/printer_5862.shtml

So I've seen. And from what the lawyers say, not sufficient basis for the judge to have recused herself, although it certainly looks bad that she didn't at least disclose the connection.