Jon Christian Ryter -- Judge Exceeds Authority by Ruling Against NSA, Part 1

JUDGE EXCEEDS AUTHORITY BY RULING AGAINST NSA
PART 1 of 2

By Jon Christian Ryter

August 23, 2006

NewsWithViews.com

Court-shopping for an ultraliberal federal judge that would be sympathetic to the plight of the American Civil Liberties Union was easy. The ACLU picked Jimmy Carter-appointee Anna Diggs-Taylor, US District Court Judge for the Eastern District of Michigan in Detroit. The ACLU knew Taylor as a kindred spirit for years. In 1984 when the ACLU wanted to ban the Nativity scene on municipal property in Birmingham, Alabama, they tossed Dearborn, Michigan into the lawsuit and went to court in Detroit. Taylor accommodated them, banning the Nativity not only in Dearborn where she had jurisdiction, but in Birmingham where she does not. Anna Diggs Taylor has been a good friend of the far left since her appointment to the federal judiciary in 1979.

Filing on behalf of the Council on American-Islamic Relations, Greenpeace and the National Association of Criminal Defense Lawyers was the ACLU. The fact that this was a lawsuit initially instigated by CAIR was camouflaged by adding other plaintiffs�including one academic and four internet journalists. The claims of injury were simply smoke and mirrors. The ACLU and the plaintiffs used half truths as whole truths. The journalists and the academic who claimed to be the injured parties were: James Bamford, a liberal author who writes exposes on the NSA and the American intelligence community; Larry Diamond of the centrist Hoover Institute. Diamond publishes the Journal of Democracy; Christopher Hitchens, a liberal web blogger; Tara McKelvey, senior editor of the website publication, American Prospect; and finally, a genuine academic�Dr. Barnett Rubin, Director of the Center for International Cooperation at New York University, and a policy wonk for the Council on Foreign Relations.

Anna Katherine Johnston Diggs Taylor was educated at the prestigious Barnard College at Columbia University, earning a degree in economics in 1957. Three years later she graduated with a degree in law from Yale�only one of 5 women in her graduating class, and the only African American. She served as an assistant US Attorney in Detroit from 1966 to 1970 when she went into private practice, specializing in civil rights law. In 1976 Taylor joined the presidential campaign of Jimmy Carter. Carter rewarded her in May, 1979 with a lifetime berth on the US District Court bench in Detroit. Taylor had no judicial experience but the Democratically-controlled Senate confirmed her appointment in October, 1979 anyway. If a GOP president had nominated a candidate for the federal bench as conservative as Diggs-Taylor was liberal, the liberals on the Senate Judiciary Committee would have spiked the nomination, arguing that without judicial experience as a yardstick to measure performance, they could not properly evaluate the worthiness of the nominee as a candidate for the federal bench.

In addition to the Nativity scene verdict in 1984, Taylor also presided over the racial discrimination trial of Ronald Ebens that year. The 6th Circuit Court of Appeals overturned her verdict in that case and set Ebens free. Ebens and his stepson, Michael Nitz killed Vincent Chin on the night of July 19, 1982 after an incident at the Fancy Pants Lounge in Highland Park, Michigan that ultimately resulted in the beating death of the 27-year old Chinese-American engineer who was celebrating his forthcoming marriage with a bachelor party at the bar. It's unclear what precipitated the fight, or who threw the first punch. It is likely the first blow was struck by Chin who was offended when Ebens�an unemployed auto worker blamed the Japanese for stealing the American auto market (thinking Chin was Japanese). The club's bouncers threw all of the combatants out of the bar. Chin and his friends left. Ebens and Nitz, who had been soundly thrashed at the bar, found Chin at a local McDonald's a short time later. Ebens had a Louisville Slugger. He hit Chin with the baseball bat at least four times. Chin died from his injuries on June 23.

Ebens entered into a plea agreement with the State in 1983. He pleaded guilty to manslaughter and was placed on probation for three years. Chinese-American activists across the country were outraged and painted the killing as a hate crime, arguing that the State of Michigan trivialized the lives of Asian minorities. Responding to growing pressure nationwide, the Reagan Administration filed federal civil rights violations charges against Ebens. The trial was assigned to civil rights activist Judge Anna Diggs Taylor. She refused to allow the defense to argue that the Chinese-American "witnesses" were inappropriately coached to maximize the negative impact of their testimony. Knowing the testimony was tainted, Taylor still sentenced Ebens to 25 years�and fined him $20,000.

Ebens' lawyers immediately appealed Taylor's decision. The 6th Circuit Court granted the appeal. In 1986 the court ruled that the federal prosecutors had inappropriate coached witnesses and overturned Ebens' conviction. The federal government moved the retrial to Cincinnati, but this time, the evidence of witness tampering was admitted when others who witnessed the fight at the Fancy Pants Lounge were allowed to testify. Ebens was convicted the first time because witnesses coached by prosecutors claimed Ebens had made racial remarks, lending credence to the racial discrimination allegations�needed to convict Ebens of violating Chin's civil rights. This time, he was acquitted because no racial epitaths were uttered by either Ebens or his stepson..

Taylor proudly wears her biases openly like a badge of honor for the world to see. Hardcore civil rights activists like Taylor should never be appointed to the federal judiciary. When the 6th Circuit overturned her verdict in the Ebens case, the federal magistrate said the "...entire experience was wrenching from start to finish." Not the trial�having her verdict overturned and having the defendant acquitted on the retrial. The ACLU judge-shopped Taylor by making the ACLU-Michigan a key component in the filing. The headquarters of the key defendant, CAIR�and both corporate co-defendants)�is Washington, DC. The plaintiff, the NSA, is headquartered in Washington, DC.

When she ruled in favor of the ACLU�with no evidence presented by any defendant that they had in any way, been damaged by the NSA surveillance program�Taylor awarded a major�albeit temporary (I hope)� victory to the Mideast Wahabbists who will benefit if her ruling is allowed to stand.

In Taylor's court, the ACLU did not even attempt to prove their clients were damaged�they simply argued that their clients might find it more difficult "...to do their jobs" in fear that the overseas telephone calls they make to "some contacts" might be monitored. Clearly, if Americans are talking to al Qaeda�or those connected to al Qaeda�then the National Security Agency should be listening. What in the world makes any American believe that conversations with those who want to destroy this nation should be construed to be privacy protected? There is no inherent right to privacy anywhere in the Constitution of the United States even though US Supreme Court Associate Justice Harry Blackmun tried to create one when he wrote the majority decision in Rove v Wade by claiming that a woman's right to privacy was so inviolable that she had an inherent right to evict the baby in her womb for intruding in it.

In 1994 when the Clinton Administration used warrantless surveillance under the 1976 FISA Wiretap Act to eavesdrop on al Qaeda cells operating in Afghanistan, the Mideast and in the European Union, Deputy Attorney General Jamie Gorelick (one of the most vehement anti-Bush 9-11 Commission members) argued to Congress that "...case law supports that the president has inherent authority to conduct warrantless searches for foreign intelligence purposes, and that the president may, as has been done, delegate this authority to the attorney general." When Clinton exercised this newfound "power," the ACLU didn't file a lawsuit, nor was there any cries of outrage from civil libertarians�or from the liberal Democrats who are now screaming from the rooftops that President George W. Bush is violating the Constitution by assuming authority he does not possess. The reason? Clinton's use of the FISA apparatus was an exercise of inert motion (an oxymoron). Even the terrorists knew that. Bill Clinton was a man that no one feared�except, perhaps, the husbands of his paramours.

Constitutionally, no infererior court federal judge in this land can theoretically overrule the President of the United States. To allow an appointed federal judge to vacate a decision of the elected president is to suggest that a federal judge has more authority than the President of the United States�or that the judiciary can overrule the Executive. The Constitution of the United States very clearly established a system of governance in which the legislative, judicial and executive branches of government are separate, and that none have authority over the others. However, fail-safes were designed into the Constitution to make sure the Chief Executive did not usurp power not granted him by the Constitution or by Congress. Keep in mind that Congress cannot confer powers on the President that it, itself, does not possess.

To prevent the Chief Executive of the nation from assuming dictatorial powers (as Federalist President John Adams attempted to when he criminalized political opposition with the Sedition Act of 1798), the Constitution delegated to the Supreme Court the authority to weigh the actions of the Chief Executive against the Constitution to make certain the President of the United States did not exceed the authority granted him. Additionally, the Constitution did not give the federal court system the right of judicial review. The high court unconstitutionally usurped that authority in 1803 in Marbury v Madison�just as the federal court system now regularly and unconstitutionally rules on issues outside its authority.

When John Adams prosecuted 14 outspoken colonists�most of them newspaper editors and publishers, including Matthew Lyons a anti-Federalist member of the House of Representatives from Vermont�under the Sedition Act for speaking out against him, the States rebelled against the Federalists. The Virginia and Kentucky Resolves nullified the Sedition Act of 1798. They also a repudiated the Federalists themselves. No Federalist ever again won a presidential election. Within 2 decades, the Federalist Party no longer existed.)

Two things should come to mind over the high court's dealing with the Sedition Act of 1798. First, just a dozen years after the ratification of the Constitution, the Federalist Supreme Court allowed party politics to blind them to their role as protectors of the of the Bill of Rights. The primary role of the high court has always been that of caretaker of the Constitution. They should have ruled the Sedition Act of 1798 unconstitutional. Interestingly, it should be noted that in actions initiated by the Executive Branch, the US Supreme Court was the court of record for those cases. This is why the US Supreme Court heard the sedition cases resulting from the Sedition Act of 1798.

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Second, not only did they not do that, but the original five justices found the 14 defendants charged by the Adams Justice Department guilty of the seditious act of criticizing the president. The Supreme Court sent them to jail for six months and fined them $1,000. Because most of those sentenced did not have $1,000, the federal government seized their property�just because they criticized John Adams. These men had no First Amendment right to free speech, nor did they have a Fourth Amendment right to avoid having their property seized. They did, however, retain the protection of the Sixth Amendment. They got a speedy trial. But they lost their Seventh Amendment rights because they were denied a trial by jury. For part two click below.

Click here for part -----> 2.