Court Reverses Anna Diggs Taylor

CQ readers will recall the decision by Detroit federal judge Anna Diggs Taylor that ruled Bush’s warrantless surveillance of international communications illegal and demanded a cessation of the NSA’s activities in this program last fall. At the time, I argued that her reasoning was flawed, especially regarding the legal standing of the plaintiffs. Today the appellate court agreed, directing Taylor to dismiss the charges:

A federal appeals court Friday ordered the dismissal of a lawsuit challenging President Bush’s domestic spying program, saying the plaintiffs had no standing to sue.
The 2-1 ruling by the 6th U.S. Circuit Court of Appeals panel vacated a 2006 order by a lower court in Detroit, which had found the post-Sept. 11 warrantless surveillance aimed at uncovering terrorist activity to be unconstitutional, violating rights to privacy and free speech and the separation of powers.
U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance and therefore do not have standing for their claims.
U.S. Circuit Judge Ronald Lee Gilman, a Democratic appointee, disagreed, saying he felt the plaintiffs were within their rights to sue and that it was clear to him that the surveillance program violated the Foreign Intelligence Surveillance Act of 1978.

The argument that allowed Taylor to approve the standing of the defendants was the novel supposition that the NSA program violated the First Amendment as well as the Fourth. The ACLU and other plaintiffs argued that the existence of the program had already chilled free speech, forcing the complainants to restrain their speech because of their knowledge of the surveillance. Otherwise, the plaintiffs would have to prove that they had been surveilled as a result of the program and had suffered an actual and provable violation of their Fourth Amendment rights.
Thankfully, the court threw out this novel and dangerous argument. Had it succeeded, anyone could file a lawsuit on the basis of imaginary intimidation to speech, especially as it relates to law enforcement and counter-terrorism efforts. Any program would have been vulnerable to harrassing lawsuits, regardless of their legality and efficacy.
Instead, the propensity for filing lawsuits has met an all-to-rare rebuke from the courts, and rightly so.

19 thoughts on “Court Reverses Anna Diggs Taylor”

  1. So according to Judge Gilman, if I “feel” that others are trying to intimidate my speech it’s prima facea evidence that someone is in fact trying to intimidate my speech. Or by extension, if I “feel” that people are staring at me and laughing at me behind my back that the feeling alone is sufficient evidence of the reality for me to present a suit in court.
    A field day for paranoids!!!!
    I “feel” that others around me are plotting to undermine my every effort and probably murder me as well, and the fact that I “feel” this is so is enough for the state to pursue a case of conspiracy to murder against those I “feel” are conspiring.
    Maybe I should move to Salem, Mass. No, too late! They already did that!

  2. I’m telling you, liberals listen to the voices in their heads! It explains so much about what they believe and do.
    “The CIA is listening to your phone conversations! Scooter Libby was covering for Dick Cheney! The Bush administration is shooting mind control rays into your head from power lines! Fire won’t melt steel! Karl Rove put toxic chemicals into Air Force tankers and they’re spraying them into the air! Global warming is killing the polar bears so Halliburton can take their land to drill for oil! Theocracy in America! McDonald’s should bring back McStuffins!”
    It’s bad enough that there are members of Congress who have these paranoid delusions, but a federal judge… Sheesh.

  3. Anna Diggs Taylor

    Justice Served…. NSA surveillance, and in New York, terrorist financing found to be legal. I guess the Bush Administration and the Justice Department were acting within the scope of the law. UPDATE: Link fixed. Thanks, Geoff.

  4. Heh,
    I find it doubly ironic that the ACLU is worried about a “chilling effect on free speech”. It seems to me that that is the very bedrock of ACLU values: To intimidate everyone who doesn’t believe as they do, and to use the courts to silense their critics.
    Respects,

  5. If the NSA listens to you call your Egyptian-born doctor, while on vacation in England, it’s probably not your genital herpes outbreak that they’re most interested in.

  6. Cap’n Ed: The ACLU and other plaintiffs argued that the existence of the program had already chilled free speech, forcing the complainants to restrain their speech because of their knowledge of the surveillance. Otherwise, the plaintiffs would have to prove that they had been surveilled as a result of the program and had suffered an actual and provable violation of their Fourth Amendment rights.
    Thankfully, the court threw out this novel and dangerous argument. Had it succeeded, anyone could file a lawsuit on the basis of imaginary intimidation to speech, especially as it relates to law enforcement and counter-terrorism efforts.
    If anybody can have their international telephone calls tapped at any time then of course restraint exists.
    Let me make two bets with you Cap’n, for a nickel apiece:
    (i) You have never actually had your income tax audited.
    (ii) You keep your tax records in tip-top shape anyway.

  7. Well, thank goodness USA Today was able to find space to indentify whether each judge was a Republican or Democratic appointee.
    Cue howls of “Nazi-Neocons” in 5…4…3…2…

  8. James,
    To draw a parallel with this case, it would be equivalent to me suing a mugger in New York because he has mugged others, even though I’ve never been to New York and have no intention of going there. Your argument is that the fact that he mugs people restrains me from wanting to go to New York. That may be true, but does that give me standing to sue the mugger?
    If it does, then I’d like to sue the Supreme Court for Kelo, because I’m restrained from buying a house because I’m afraid that my municipality will take it from me through eminent domain in order to build a McDonalds. Do you think that perhaps the Supreme Court will declare all Supreme Court decisions unconstitutional?

  9. Immolate: You may not have standing to sue the mugger as an individual, but I’m sure you support the idea that the mugger is liable for criminal charges. I’m pretty sure that you’ll agree as well that if there was no such liability, there would be a lot more muggers.
    Maybe the lawsuit should have gone ahead – maybe it shouldn’t. I’m not taking a view on that. You can argue that the wiretaps are a reasonable use of governmental power, you can argue that they’re not.
    I am, however, taking a view on the Cap’n’s – and some other posters – opinion that since the complainants were not directly and explicitly tapped, they therefore had no interest in the matter.
    Threats need not be executed to influence behaviour. They need only be credible – which applies to income tax audits, criminal charges for muggers and wiretapping. To argue otherwise is just silliness.

  10. Indeed, the Diggs decision was one of the most specious and vapid arguments ever handed down by a judge at any level, much less Federal.
    The case boils down to any one at any time COULD be subject to having their free speech rights infringed upon by the government, therefore the courts must treat us all as potential plaintiffs who HAVE HAD our free speech rights infringed upon by the government.
    It’s the most idiotic thing I’ve ever heard of, Ed called this one several months ago as getting overturned and thrown out. It would make you all class action plaintiffs to everyone in America who *wasn’t* you…they might be potentially infringing on your rights!

  11. One more powerful reminder that it’s critical to keep the Dims from winning
    the White House next fall. The appellate court vote was 2-1; two Republican
    appointees with good sense and one Clinton appointee. I question whether this
    nation can even survive four years of Dhimmicrat rule.

    I excerpted and linked
    .

  12. Diggs Taylor was probably above her Peter Principle ceiling as much as the goof-ball POTUS who appointed her, the Gee-mah. The 30-plus page argument she wrote sounded like a nut-root rant. That’s the sort of judicial nitwittery that will return if we get another Democratic administration.
    Is there any way to commute her life sentence as a Federal Judge?

  13. Terrorist Spying Lawsuit Tossed

    A U.S. appeals court tossed an ACLU suit challenging the domestic terrorist spying program:
    The 2-1 ruling by the 6th U.S. Circuit Court of Appeals panel vacated a 2006 order by a lower court in Detroit, which had found the post-Sept. 11 warrantless su…

  14. 6th Circuit kicks ACLU’s standing argument in challenge to terror surveillance to the curb

    We covered crooked Anna Diggs Taylor’s ridiculous ruling in federal district court pretty extensively last year. Check it all out here.
    Good news from the 6th Circuit today. From a PAO at Justice:
    “We are pleased with the Court’s d…

  15. Threats need not be executed to influence behaviour. They need only be credible – which applies to income tax audits, criminal charges for muggers and wiretapping. To argue otherwise is just silliness.
    Posted by: James I. Hymas at July 6, 2007 12:38 PM
    &&&&&&&&&&&&&&&&&&&
    Newvertheless, we are still at war, and we expect our government to do SOME things to SOME individuals which are obviously not alright to do to EVERYONE, for the sake of our war effort – AND TO KEEP DEADLY SILENT ABOUT IT, FOR OUR SAKES – even if a small minority of Dim Socialists try to scream as loudly as if they are the whole bag of chips AND all that!
    Which they are not – and constantly prove in solid reality they realize they are not – such as when they have to back down over defunding the troops, etc – because their offices are bombarded by folks THAT DID VOTE AND FINANCIALLY SUPPORT THEM.
    Go back and watch a few days worth of WW2 era movies, like the old Nancy Drew movies, and there are even some old westerns set in WW2, fighting German Nazis with secret hideouts in old west territories – and in those days, you can tell by who the actors are, and the way they did the movies, that they EXPECTED the govt to do what it took to apprehend the bad guys, and everyone else to HELP them do it.
    Most of us are a whole lot more fed up with Liberals thwarting our efforts than they will ever realize.
    We are all taking notes these days on who is ASSISTING our ENEMIES.
    And we will remember it, when things get rougher again, too.

  16. Well, but you saw what kind of bozo you got appointed to the bench when it came time sentence Scooter. And when he was ordered to start serving while waiting for his appeal. Didn’t all three of those morons concur in that fiasco?
    Maybe we should wiretap judicial nominees so we know what we’re getting BEFORE they make those stupid decisions.

  17. I think you fundamentally misstated the case and what it could do.
    This case was not about the legality of the wiretapping in question. The wiretapping in question was already found to be illegal. This was about certain individuals and groups who had some good reasons to believe they were subject to warrantless wiretapping. The case was overruled because there was no certain evidence against the NSA. Might I ask how you could get definitive evidence against the NSA? Over turning the decision seems to say that it is absolutely impossible to challenge the warrantless wiretapping. A stand that seems to run counter to most conservative viewpoints. So instead of unleashing this hypothetical barrage of lawsuits against the government, it instead completely insulates the government from anyone – even if that have pretty compelling evidence. It just will never have the “Made by the NSA” tag on it.

  18. Re: Bill Faith: “I question whether this nation can even survive four years of Dhimmicrat rule. I excerpted and linked.”
    Yeah Bill that makes a lot of sense. Let’s see, Bush years =
    -According to all polls the world hates us more than at any other time in history.
    -Terror attacks have skyrocketed!
    -We are stuck in a quagmire in Iraq.
    -Our debt has risen to historic levels.
    -A city was nearly wiped out due to lack of oversight.
    Yeah – goddamn democrats. They might raise taxes back to the level they were at in the 90s!!! Oh the horror!!

  19. NSA Surveillance Watch: US Appeals Court Throws Out Ruling – OKs Bush Domestic Surveillance Program

    The National Security Agency (NSA) logo is shown on a computer screen inside the Threat Operations Center at the NSA in Fort Meade, Maryland, January 25, 2006.
    US appeals court throws out ruling against eavesdropping
    A US federal appeals court on Fr…

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