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Friday, August 18, 2006

And now we will see how our far our dictator-king wants to go
Posted by Jill | 5:46 AM
Following yesterday's strikedown by a federal judge of the Administration's NSA wiretapping program, the media response seems to be "Good....the president isn't a king", except for the ever-more-right-wing Washington Post Editorial Page.

USA Today:

President Bush has unilaterally declared what parts of new laws he wishes to enforce. He has created military tribunals unauthorized by Congress. And, perhaps most ominously, he has authorized eavesdropping on phone calls to and from the USA without court orders.

Bush has done these things by simply asserting that the powers of the presidency enumerated in Article II of the Constitution — particularly the clause making him the "Commander in Chief of the Army and Navy" — are much more sweeping than previously imagined. In short, he has acted like a king.

Fortunately, the courts have begun to rein in his royal ambitions. In June, the U.S. Supreme Court threw out the military tribunals. And on Thursday, federal Judge Anna Diggs Taylor struck down the warrantless surveillance program, finding it to be a violation of the First and Fourth Amendments and the principle of separation of powers. "There are no hereditary Kings in America," she wrote.

The ruling by Taylor, who was appointed by President Carter, is far from the final word. The wiretapping program will continue while the administration appeals. It is not hard to see other courts ruling differently by saying that the plaintiffs, led by the American Civil Liberties Union, should not have been given standing to bring the case because they could not show they were harmed by the eavesdropping.

But the ruling does undermine Bush's main argument — that the program is constitutional because the administration says it is constitutional. Taylor gives little credence to this argument, as one might expect from a representative of the judicial branch, the place where questions of constitutionality are properly resolved.


New York Times:

The ruling eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.

It’s good news that this ruling exists at all. Mr. Bush’s lawyers tried to have the entire suit thrown out on national security grounds, a tactic they have used in an alarming number of cases. In one particularly appalling example, they persuaded federal judges to refuse to hear a lawsuit filed by an innocent German citizen of Lebanese birth who was snatched out of his private life, illegally imprisoned for five months and tortured by American jailers.

In this case, the administration told Judge Taylor that merely arguing its case would expose top secret information. Judge Taylor said she had reviewed the secret material and concluded it was not relevant. The secrecy claim, she said, was “disingenuous and without merit.”

No sooner had this ruling been issued than Mr. Bush’s loyalists in Congress, who have been searching for ways to give legal cover to an illegal spying program, began calling for new laws to overcome Judge Taylor’s objections. Republicans quickly pointed out that Judge Taylor was appointed by President Jimmy Carter and that some of the many precedents she cited were written by liberal judges. These efforts to undermine Judge Taylor’s arguments will undoubtedly continue while the White House appeals the decision, and the outcome in the conservative Sixth Circuit Court of Appeals is uncertain.

But for now, with a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them.

Next Article in Opinion (1 of 16) »Related Articles
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WaPo doesn't claim the president to be a king, but it seems to give Bush a great deal more leeway to decide what is and isn't Constitutional than the man deserves, given his track record of Making Stuff Up whenever his poll ratings are in the toilet:

Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality. Fortunately, as this case moves forward on appeal and as other cases progress in other courts, it won't be the last word.


No, it won't be the last word. Don't forget, the Supreme Court is now headed by John Roberts, and we now have at least four justices with a demonstrated fondness for the unitary executive theory. So the dancing in the streets that someone has finally put the brakes on Bush's dictatorial ambitions is premature.
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