ACLU agreed to a temporary stay of the decision re: NSA wiretaps

[MrCoffee]

http://www.aclu.org/safefree/nsaspying/26489prs20060817.html

"Judge Taylor will next consider a request from the government for a stay pending the government's appeal to the Sixth Circuit Court of Appeals. The ACLU will oppose the motion, but has agreed to a short temporary stay until the court can rule on the government's request. That hearing is expected to be held on September 7th."

[riderinthestorm]

1. I don't understand why they ageed to the stay

If this program is so egregious that it's unconstitutional, then it should be suspended pending the appeal. Allowing it to go on for even a single day longer sounds wrong to me.

:shrug:

[MrCoffee]

3. Because they're not stupid.

The damage has been done with this program. The ACLU isn't about to be accused of "supporting terrorists." They won. It will go through the courts, as it should, and IMHO, they'll win in the 6th.

It's the right decision by the ACLU. They have the victory. Take the high road.

[mdmc]

4. security uber alles

The stay is exploring whether there is a security reason for wiretaps.

[Trillo]

8. Just a guess.

Perhaps it's more than just software, maybe it's been hardwired (that's the implication of some of what I've read about it here on DU). If it's been hardwired, then there could be large disruption-of-service and reconfiguration issues.

Like I said, just a guess.

But I do agree with you that with citizens, checking the law first is always prescribed, and we're commonly told, "ignorance of the law is no excuse" (for breaking it), whether true, or not. The big boys seem to just do whatever they want; conceal what they're doing; and when discovered by the public, then they resist with legal maneuvering as long as their deep pockets allow.

[ThomWV]

2. That Is Confusing As Hell's Gates

Which motion will the ACLU oppose, the motion for a stay until the 6th Circuit gets a shot at it or a shorter stay (presumably just a couple of days) while everyone get's their shit together and then the ACLU opposes even their request for a stay? Which is it?

[MrCoffee]

5. They are staying the enforcement of the opinion.

This means the feds can keep running the program.

[Robbien]

6. I am guessing

First the Judge has to decide whether to hear the government's appeal and secondly if the first one is yes, the Judge has to rule over the government's appeal.

I believe the ACLU agreed to wait for the first ruling.

[MrCoffee]

7. Technically...

The district judge can issue a stay of her own order pending the appeal. This is the next procedural step for the government, and the ACLU has decided to stay enforcement until it's heard.

Basically, the judge would grant the stay anyway, so ACLU saved the goverment the bother of filing the temporary motion to stay. They will contest the motion to stay on appeal.

Fed Rule of Civ Pro 62 (i think...)

[riderinthestorm]

9. You sound like a lawyer - thanks for enlightening us non-lawyers!

I would appreciate any kind of feedback you have on this. Do you think it is a "strong" ruling for example?

I am fascinated with this whole thing. I believe/hope this case is another crack in the "imperial" armor with which this Admin has tried to cloak itself.

[MrCoffee]

10. Here's my interpretation...for what it's worth

If you haven't read it, I'd really encourage you to. It's not a difficult or overly technical read. http://i.a.cnn.net/cnn/2006/images/08/17/nsa.lawsuit.pdf

First, the judge dismissed the Govt argument that the "state secret" privilege required the case to be dismissed. The Govt argued that, in order to prove the basic elements of the claim, the ACLU (which I'll use as shorthand for plaintiffs) would have to have access to privileged state secrets, which are protected from disclosure by fed law. The Court said no to that argument because (and this was BRILLIANT on the ACLU's part) the whole case was based on public statements made by the Govt. The ACLU did no discovery at all, and proved the prima facie elements of their claims based solely on Administration statements made in public.

Then there's some technical standing arguments over whether ACLU had the right to sue, which of course the ACLU won. Whether or not they actually suffered an injury in fact might be a problem for the ACLU in the appellate court. I'm just speculating, but to me, that's the weakest part of their standing to sue.

The judge found the 4th Amendment violation pretty much based on the text of the amendment, in that the Foreign Intelligence Surveillance Act defines what is and is not reasonable in the context of the searches, and the Govt's failure to follow FISA procedure is tantamount to a 4th Am violation.

The best part is that the judge constantly throughout the opinion refers to the President as a creature of the constitution, created by Article II, and bound by the same. "There are no hereditary kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution." She's telling Shrub that the Oval Office only fits inside the Constitution, and no further, and that he'd better watch his step.