Judge orders immediate halt to NSA program

[dividebyzero]

I think the Bush admin's credibility went out the window when it was made known that in the last couple of years, with a hundred or so request for warrants from the FISA courts, maybe *one* has ever been denied...

The program was quite obviously illegal, I'm surprised that its suspension is all that's being called for.

[Julie Fern]

hey, baby.  good to see you around.

if injunction against program become operative, it be interesting to see if bush believe he have inherent authority to defy court order.

[dividebyzero]

Good to see you again, sweetie 

You bring up a good point, and I would certainly imagine that he'd try. That is, barring any divulgence of "critical successes" that somehow resulted from this program that the DOJ keeps insisting exist but refuse to disclose.

Also glad to see that 1) the judiciary still has balls, 2) that the judiciary is the only branch of government that's pissed off with Bush's blatant usurpations.

[J D]

I found the following blog post on the decision very interesting and enlightening, in that it seems to provide an explanation for why the opinion's reasoning on certain issues (e.g., state secrets privilege, standing) is more solid than it is on other issues where the reasoning is more conclusory (e.g., 1st and 4th Amendment violations).  Apparently, the DOJ's litigation team took the apparently risky strategy of putting all their argumentative eggs in the state secrets and standing basket, and either did not raise the other arguments, or raised in such a way that they do not even rise to the level of argument (in other words, those arguments might be deemed waived, and therefor need not be considered by the court).  Take a look for yourself, especially at the government's brief, linked to (via the ACLU) at the end.  If nothing else, it might shed some light on why the opinion doesn't address all these arguments buzzing around in the media: because they weren't made in the one place they would have counted for something, in Judge Taylor's courtroom.

http://glenngreenwald.blogspot.com/2006/08/ongoing-misconceptions-about-judge.html

[Julie Fern]

yes, greenwald very good.  has been for long time.

[Julie Fern]

well, diphshit, did republican administration move to recuse judge on these grounds?  or has judiciary dominated by republicans raised as disciplinary issue?

what next, you going tell us she not really all that8 "green"?

[J D]

JUDGE BUSTED! 

http://gatewaypundit.blogspot.com/2006/08/judge-anna-diggs-taylors-dirty.html

Freakin' criminals.  They should be jailed for this sh*t.

Recusal is generally left up to the sound discretion of the individual judge.  Judges have often presided over cases where they nonetheless hold close personal ties to one of the litigants or parties in interest, because they feel that they can still be impartial.  Cross-reference Scalia, Antonin and Cheney, Richard. 

The truth is, many judges out there are trustees of this or that organization, or own stock or have other investments in numerous companies.  If they always had to recuse themselves over these kinds of potential conflicts of interest, I think you'd be hard-pressed to find judges who could actually preside over cases involving these litigants.  They should be jailed?  I sincerely hope you're joking, though I suspect otherwise.

And, as Julie Fern correctly notes, the government has little ground to complain if they didn't move for the judge to recuse herself in the first place.  Certainly, they would have known whom they were appearing before, and they would have had some opportunity to do some research on her and her proclivities.  These ties were no secret.  If they had any inkling that this would be a cause for concern, they should have made a motion for her to recuse herself, if for nothing else than to bring the potential conflict to her attention (perhaps the fact of the Foundation grant, although made "recently," slipped Judge Taylor's mind--federal judges are busy, after all--and thus she didn't think she had any real ties to the ACLU which would create a conflict, since she doesn't have a leadership role in that organization); if they didn't, it's waived.

[Freak]

It's not always waived just because a judge believes they can be impartial and a party fails to raise the issue. It depends, as most everything in law does.

[J D]

It's not always waived just because a judge believes they can be impartial and a party fails to raise the issue. It depends, as most everything in law does.

Generally, waiver means that when someone doesn't raise an objection that they could have raised before, they lose their chance to raise it at all.  A court might still look at a waived issue, I think, if there's a substantial risk of a miscarriage of justice, or if there is plain error, but those are pretty high standards to meet.  Do you know of a different standards applying to recusal, by any chance?  Certain objections are unwaiveable, of course, like lack of federal jurisdiction, but I don't see why a recusal objection couldn't be waived.  As far as I know, it's a discretionary decision, which means that any review of it will use a highly deferential "clear error" standard anyway, assuming they would review it at all.

[Freak]

Parties may voluntarily waive a valid objection even recusal, and I believe those are the correct standards, you just didn’t note them in your previous post.