In the NSA Case, a Judge Says No to King George

by David Corn

In ruling on Thursday that the Bush administration's warrantless surveillance program is unconstitutional and must be halted, U.S. district Judge Anna Diggs Taylor slammed the White House on several critical fronts.

For months, George W. Bush, Dick Cheney and other administration aides have been defending--even championing--what they call the "terrorist surveillance program," under which the National Security Agency can intercept communications that involve an American citizen or resident without a warrant if one party to the communication is overseas and suspected of being linked to anti-American terrorists). They have maintained that the president has the authority as commander in chief to authorize such surveillance. Though the Foreign Intelligence Surveillance Act (FISA) generally forbids wiretapping without warrants, the White House has contended that Bush is not bound by the limitations of that law. This claim--arising from the Bush administration's view of expansive (even supreme) presidential power--set up a constitutional clash. And in the first round of the legal battle, Judge Taylor has knocked out the White House argument.

In her decision, she accused the administration of dishonestly arguing that the lawsuit filed by the ACLU and others (including journalists, researchers and lawyers) against the NSA wiretapping should be dismissed because it would expose state secrets:

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP [Terrorist Surveillance Program] exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.

She added:
Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF [legislation authorizing Bush to use military force against Iraq] and the Constitution to authorize the continued use of the TSP. Defendants [the Bush administration] have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP....Consequently, the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.

In other words, Bush cannot hide behind an it's-classified defense. (Taylor did say that the administration could do so in a related matter--the data-mining of phone records by the NSA. That's because not enough information has been publicly released about this covert program.)

The judge reserved her sharpest words for slicing and dicing the administration's contention that Bush had the authority to ignore FISA and, in essence, act outside (or above) that law. And she cited a favorite Supreme Court case of conservatives to make this point: Clinton v. Jones. In that case, the justices ruled that Clinton could be sued for sexual harassment by Paula Jones.

Taylor wrote:
It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d]...into a single branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997). "It remains one of the most vital functions of this Court to police with care the separation of the governing powers....When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).

Though pundits, partisans and legislators have debated the legality of the warrantless wiretapping program, Taylor rendered a clear verdict:
The wiretapping program here in litigation...has undisputedly been implemented without regard to FISA and...in violation of the Fourth Amendment.

Bush, as president, she added, has no extraconstitutional powers:
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well....In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.

She noted:
The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

Once again, a court has told Bush that he is not all-powerful. He cannot create military tribunals on his own. He cannot detain American citizens as enemy combatants without affording them some elements of due process. Taylor's decision will probably be appealed by the Bush administration, and the case will wind its way toward the Supreme Court. But this decision reaffirms--and puts into practice--the bedrock principle that a president's power does not trump the workings of a republican government, even when it comes to war. Weeks before he took office in 2001, Bush quipped, "If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator." Democracy, though, is not easy. And a commander in chief has to abide by the rules, as various courts have now ruled. The administration's King George approach to governance has taken another blow. But it's royally unlikely this president is going to accept the decision and give up his claim to the throne.