Friday, August 18, 2006

"There are no hereditary kings in America"

The "war on terror" may be eroding human rights an civil liberties, but it is also giving us some of our strongest language in defence of freedom. First, we had the Supreme Court's memorable statement in Hamdi v Rumsfeld that

[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.

And now we have the statement by Judge Anna Diggs Taylor of the US District Court, in her decision [PDF] on Bush's warrentless domestic eavesdropping scheme, that

There are no hereditary kings in America and no powers not created by the Constitution.

and that therefore, the Administration's "arguments" about the "inherent authority of the President as Commander in Chief" are bunk. Even in a time of war, the President is bound by the constitution and the law. He is not, in the infamous words of Nixon's lawyers, powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.

What of the decision? It is exactly as you would expect it to be: warrantless wiretapping violates the Fourth Amendment prohibition on unreasonable searches and seizures. It violates the Foreign Intelligence Surveillance Act, the law Congress has established to govern wiretapping by the intelligence services, and the Separation of Powers, which vests legislative power solely in the Congress, and charges the President to "take care that the laws be faithfully executed". In this case, it also violates the plaintiff's First Amendment rights to freedom of expression and association, on the grounds that it chills expressions and associations with various people they communicate with in their professional and private lives (the plaintiffs are a group of lawyers and academics, who regularly communicate with people in the Middle East in their line of work). While Congress has authorised the use of military force against those responsible for the September 11th attacks, this was not a blank cheque, and cannot override existing legislation without explicit authority to do so (but even then, unconstitutionality would still apply; Congress can't authorise the President to violate the Constitution). So, the scheme is illegal and unconstitutional, and the Court has ordered the government to stop it immediately.

(Glenn Greenwald has a more thorough analysis here).

The Administration is appealing, of course, and this is likely to go all the way to the Supreme Court. The most likely target of an appeal will be the Court's dismissal of "state secret privilege" at the beginning, on the basis that the plaintiffs could establish a prima facie case based solely on publicly released material. A higher court reversing that decision would effectively nullify the whole judgement, but also leave the US in the rather interesting position of having a court say "what you're doing is illegal and unconstitutional - but no-one can go to court and argue it". In a country which is supposed to be "a nation of laws", that's an extremely problematic position to uphold.


I suspect this will slowly work it's way up to the Supreme Court where it should be heard.

I would be surprised that it wouldn't.

Posted by Anonymous : 8/18/2006 12:01:00 PM

I should also add there is one great limit on the President's powers - the voters.

Posted by Anonymous : 8/18/2006 12:02:00 PM

In George Bush's case the voters have no power - he is prohibited from standing again for election. They could I guess elect a Congressional Democratic majority to impeach GW, but that would be unlikely to happen. As a lame duck there may be no incentive for him to pay any more heed to the Constitution than he does now.

Posted by Anonymous : 8/18/2006 12:13:00 PM

This is an excellent result. I hope that the Supreme Court upholds it.

Pablor - the Congress can only move to impeach, however, the final removal of the President (the conviction vote) must be by a 2/3 majority - so if the Democrats won a majority they'd still need help from Republicans to impeach the President, which they probably won't get - and given the amount of time it took to get to the conviction vote for Clinton, I'd say impeaching Bush would be a waste of time and effort.

Posted by Lewis Holden : 8/18/2006 02:59:00 PM

Note carefully that the same tiresome, intellectually dishonest crew who have been croaking "corruption" endlessly around here, are exactly the same people who have firmly supported the blatantly and catastrophically corrupt Bush Administration.

The cognitive dissonance involved should stun them senseless, but as the famous song says.."a man believes what he wants to believe, and disregards the rest".

Posted by Anonymous : 8/18/2006 08:08:00 PM

Well summed up I/S. I trust our own government will soon have a similar reminder. :-)

Posted by Peter Cresswell : 8/19/2006 10:52:00 AM

Thanks to posting a link to the decision. Is this going to be cited as ACLU v. NSA? - Greg DeClue, DeClue's News

Posted by Greg DeClue : 8/21/2006 12:26:00 PM