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Thursday, August 17th 2006

All That Stands In The Way Is Scalia

And he’s a big man.

A U.S. District Judge has ruled that the NSA’s warrantless surveillance of phone calls, in which one party is domestic and the other end stationed internationally, is illegal.

“It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote in the 43-page opinion.

Diggs rejected the government’s argument that the program was authorized by a resolution empowering Bush to use military force in response to the terrorist attacks as well as the president’s inherent powers as commander-in-chief.

Still, this has a long road of appeal ahead of it. And it isn’t really Scalia in the way, it is the swing voters. It’ll probably be Kennedy if it reaches the highest court because the appeal will come down 5-4 and he’ll be the deciding vote (Scalia, Thomas, Roberts, Alito vote for the DoJ).

Plus, the government could’ve always just taken the darn time to ask FISC for a warrant for all their taps. It ain’t like they’re going to get turned down. No matter how skeptical some seem of the program or how much “stricter” it is getting for them to grant the government warrants.

I’ve already made it clear I think SCOTUS will rule against the NSA program. I think there is ample evidence that the NSA program, from what we know now, violated FISA. The President’s power in Article II to engage in warrantless searches in pursuit of foriegn intelligence is amendable to the will of congress.

Certainly, I cannot find a legitimate non-partisan look at the program which hasn’t sounded concern. Included amongst these is the Congressional Research Service report (a news story here).

Volokh addresses the issue of how FISA can “trump” the US Constitution.

Over at Unclaimed Territory (via Wonkette), a NYC attorney goes over the decision. He’s about as happy with the decision as any civil libertarian anywhere, but even he admits the ruling looks like it has a lot of argumentative holes in it,

This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law.