Holy Shit! Action Alert

Or perhaps I mean unholy shit.

A federal judge in Detroit has ruled that the NSA program is unconstitutional, and ordered it to be halted.

The AP leads with that order to halt the program.
P.S. Chicago Dyke and I were writing at the same time. Follow me below the fold for a take on what we need to do immediately.

The suit was brought by a group of journalists and the ACLU.

Don’t get too excited; the decision is at the circuit court level. I’ll bet that the administration asks for and receives a stay, while the decision moves to the appellate level, where the outcome, I fear, is considerably less sure. In fact, there is a possibility of an appellate decision that will give constitutional protection to the NSA and the unitary theory of the presidency; depends on the which appellate circuit it goes to.

This decision will gladden the hearts of Republicans; expect the usual outrage at judicial over-reach, and those among us who would make us unsafe, because we were and are objectively pro-Saddam/bin Ladin/Hizbollah/Hamas/Syria/ and, of course, pro-Iran.

Expect Democrats to be put in a difficult position on this one. Don’t expect them to welcome this interruption in surveillance, although that is not required by this decision, only that the administration go back to the procedures outlined in the FISA act.

What I hope Democrats avoid is a contest with Republicans to express disdain for the decision, or outraged pledges to keep the program alive, as a way to prove their security bona fides. Coming on the heels of a week in which Republicans have managed to get the SCLM to repeat, once again, Republican talking points on so-called Democratic weakness in the area of homeland security, the temptation to go on the defense will be strong.

What one would hope from Democrats is an immediate offensive; the responsibility for this decision, which stops the NSA surveillance, can be laid exclusively at the feet of the Bush administration, for whom claims of administrative power, which undermine the constitutional principle of separation of powers, appear to be more important than doing what needs to be done in the field of security in ways which don’t raise constitutional issues. Theirs is the ultimate politicization of security issues; Republicans wanted this decision so they could make hash out of Democrats, and that desire takes precidence, e

Democrats need to point out that nothing about the Bush administration’s depredations of the constitution have made any of us any safer; this decision by a federal judge is a defense of the constitution, a defense of separation of powers, a fundamental principle of our governance. And that damn, incredibly unpopular, Republican-controlled congress is implicated here, as well. It has rubber-stamped every grab for unsupervised power by this administration, which is precisely what has led to this decision.

There is nothing about the FISA law which precludes an effective NSA style program, and in fact, it is the Bush administration itself, in answer to the constitutional issues raised by their program, which has suggested that the FISA court be the court to analyze and certify the program, a suggestion that makes very little sense, anyway, but if the court can do that, why can’t the administration go to the court to get secret warrants for their listening?

Democrats also need to point out the incredible possibilities for abuse in the Bush version of this program; they need to contrast Republican statements about the dire possibilities proclaimed when it was discovered that files from the FBI had gone to the Clinton White House, in comparison to Republican Zen-like composure in the face of a program that allows a Bush White House to listen in to just about anyone, including jounralists, critics, and political opponents, in a program that provides for no scrutiny outside the administration, at least as long as the Republicans control congress.

This is not an occasion for comment threads rife with observations about Democratic lack of spine.

Anyone who has ever made such a comment who doesn’t immediately call Harry Reid’s office, and the offices of other key Democrats, from Senator Clinton, to Obama, to Kerry, to every single potential presidential candidate, including Joe Biden, and then send a follow-up email demanding the Democrats take the offensive, and damn partisanship, since that’s all Democrats are going to get from Republicans, as usual, on this one, and then get five friends to do the same, has lost the right to complain.

No kidding, this is a big one; you know where Holy Joe is going to go on this one; for once let’s be ready for them, or better yet, ahead of them.