Friday, August 18, 2006

"There are no hereditary Kings in America..."

"There are no hereditary Kings in America," wrote U.S. District Court Judge Anna Diggs Taylor in slam dunking the (p)resident's secret surveillance program.

And there's so much more highwayscribery has dug up for you in reading the full 44-page written decision!

Suffice it to say, the administration must be embarrassed by the rotund rejection of its illegal (says the court) snoopy spy program and its raggedy defense of same.

Even though the court granted the Bush administration's (defendants) invocation of state secret privileges in the case, these aspiring little dictators do not fare well.

That's largely because the lawsuit is rooted in things already known and, to quote the judge, "the government has already admitted the program exists," operates without warrants and targets communications between someone inside the U.S. and someone outside it who, ostensibibly, has something to do with Al-Qaeda.

Somebody like Ned Lamont (if you're reading Prick Cheney).

Instead, the scribe recommends you read Diggs Taylor's decision because it is a wonderful piece of intersecting histories: on the one hand, an account of surveillance in this country; on the other, a history lesson rooted in our inception as a nation that makes clear why we don't care for spy programs used against our fellow citizens.

It's not a complicated legal document, this decision. Rather it is based upon a simple reading of the Foreign Intelligence Surveillance Act (FISA) at the root of the debate.

FISA, the court observed, "was essentially enacted to create a secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment."

Then Taylor Diggs quotes the noble constitutional entry, probably for the benefit of Attorney General Alberto Gonzalez (who's a crappy lawyer), the president and vice president, who think they're running the old Soviet Union:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be searched.

Pretty clear stuff, no?

The judge thought so, but again for the benefit of the little dictators atop us all wrote, "The Fourth Amendment, accordingly, was adopted to assure that executive abuses of the power to search would not continue in our nation."

Taylor Diggs noted that in passing FISA, Congress gave considerable leeway from nettlesome constitutional protections to a president conducting a foreign war and related surveillance.

By way of example, one such condition was that the government could apply for a warrant after the surveillance had begun. So Congress wasn't being selfish of its power at the expense of the president's "duty to protect the American people" that Bush is always babbling about.

All of which turned out to be futile and useless in this case.

The judge said, "The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard for FISA and, of course, the more stringent standards of Title III (of the Omnibus Crime Control and Safe Streets Act of 1968), and obviously in violation of the Fourth Amendment."

Undisputedly, obviously.

Again, Taylor Diggs quotes the Constitution, this time the First Amendment (the scribe's favorite):

Congress shall make no law respecting an establishment of religion, or prohibiting thhe freee exercise thereof; or abridging freedom of speech, or of press,; or the right of the people peacably to assemble, and to petition the government for redress grievances.

After serving up the heavenly filet, Diggs Taylor digs in: "The [p]resident 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."


That's a great riff there, "creature of the same Constitution..." and Diggs Taylor will dig it up once more, which is important because Bush thinks he's above the Constitution, rather than a creature of it, bestowed with the power to pick and choose what he likes and what he doesn't about it, independent of the two other branches of government.

The court served up an interesting discussion through its presentation of Youngstown Sheet & Tube v. Sawyer in which Supreme Court Justice Jackson wrote that the powers of the president fluctuate, "depending upon their junctions with the actions of Congress. Thus if the president acted pursuant to an express or implied authorization by Congress, his power was at its zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own indepdendent powers."

In this case, Diggs Taylor said, "the president has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised as its lowest ebb and cannot be sustained."


The government also argued that, after Sept. 11, 2001, the Congressional authorization for use of military force (AUMF) granted Bush the right to violate FISA and the Constitution.

"The court must note that the AUMF says absolutely nothing whatsoever of intelligence or surveillance."

Absolutely nothing.

The authorization to flatten Afghanistan and destroy Iraq preemptively, "gives no support to defendants here. Even if that resolution superceded all other statutory law, defendants have violated the constitutional rights of these citizens including the Fourth Amendment, First Amendment, and the separation of power doctrine.

"There are no hereditary Kings in America and no powers not created by the Constitution. So all inherent powers must derive from that constitution."


1 comment:

Anonymous said...

Wonderful! In times like these, the constitution reads like poetry. Thanks for doing the research, Scribester.