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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, September 28, 2006

Judge Taylor defies the Leader again

(updated below)

As Congress prepares to enact one of the most tyrannical and un-American laws in our nation's history, at least there is a Federal Judge who recognizes that we are not supposed to live under executive tyranny and that the obsequious submission to the President which characterizes Congressional Republicans is a destructive and repugnant trait.

Judge Anna Diggs Taylor today refused the Bush administration's request to issue a "stay" of her Order in the ACLU v. NSA case. When Judge Taylor ruled previously that the President's warrantless eavesdropping violated both the criminal law and the U.S. Constitution, she issued an Order enjoining the Bush administration from continuing its warrantless eavesdropping program.

The parties agreed to "stay" that Order until Judge Taylor could rule on the administration's request that the Order be stayed until the Sixth Circuit Court of Appeals rules on its appeal. Today, Judge Taylor refused the administration's request and instead gave them only seven days to comply with her Order. According to this Detroit Free Press article, this is part of what happened:

[Justice Department lawyer Paul] Coppolino and Taylor traded gentle barbs during Thursday's 30-minute court hearing. "Your injunction, as far as we can see, was the first time in history that foreign intelligence has been enjoined at a time of war," Coppolino told Taylor.

In rejecting his request for a stay pending the outcome of the appeal, Taylor remarked that the government had failed to cite any steps it had taken to comply with her order.

As is the case virtually every time the legality of its conduct is challenged, the Bush administration has displayed nothing but contempt for the court in this case as well as for the very idea that their behavior can be or should be subject to the rule of law (which happens to be exactly why Congress today is going to give them the power to put people into black holes for the rest of their lives without being bothered by any review from any court or tribunal; the President knows best and must not have his decrees regarding Guilt and Permanent Imprisonment -- or eavesdropping -- reviewed by any court).

The Bush administration can and unquestionably will ask the Sixth Circuit to stay Judge Taylor's order pending appeal. I would be surprised if the Sixth Circuit refuses to do so. Nonetheless, on a day when one watches one obsequious, craven, authoritarian presidential worshipper after the next crawl onto the Senate floor and make some of the most wretched statements one can imagine, in defense of one of the most wretched bills imaginable, reading about someone who is willing to stand up to the administration and enforce the most fundamental principles of our government is extremely refreshing.

The contrast between the independent-minded and patriotic Judge Taylor and the mewling, mindlessly obedient Congressional Republicans could not be clearer.

UPDATE: The GOP is apparently forcing a floor vote in the House on Heather Wilson's FISA bill, which legalizes warrantless eavesdropping. They are not going to be able to get a FISA bill enacted prior to adjournment (because there is no time to get a bill passed in the Senate and then reconciled), but they want to force Democrats to vote against warrantless eavesdropping in order to exploit that vote politically. These comments and links in the comment section explain these developments.

UPDATE II: The final votes on the amendments to the torture/detention bill and the underlying bill itself are underway (see UPDATE VI in the post below).

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