REVIEW & OUTLOOK
A federal judge rewrites the Constitution on war powers."
Friday, August 18, 2006
"In our current era of polarized politics, it was probably inevitable that
some judge somewhere would strike down the National Security Agency's
warrantless wiretaps as unconstitutional. The temptations to be hailed as
Civil Libertarian of the Year are just too great.
So we suppose a kind of congratulations are due to federal Judge Anna Diggs
Taylor, who won her 10 minutes of fame yesterday for declaring that
President Bush had taken upon himself "the inherent power to violate not
only the laws of the Congress but the First and Fourth Amendments of the
Oh, and by the way, the Jimmy Carter appointee also avers that "there are no
hereditary Kings in America." In case you hadn't heard.
That's another reason the Angry-Left Democrats HATE George Walker Bush --
because his father was President. That hasn't happened since John Adams and
John Quincy Adams -- and both of them were one-termers. -- DSH
The 44-page decision, which concludes by issuing a permanent injunction
against the wiretapping program, will doubtless occasion much rejoicing
among the "imperial Presidency" crowd. That may have been part of her point,
as, early in the decision, Judge Taylor refers with apparent derision to
"the war on terror of this Administration."
We can at least be grateful that President Taylor's judgment won't be the
last on the matter. The Justice Department immediately announced it will
appeal and the injunction has been stayed for the moment.
But her decision is all the more noteworthy for coming on the heels of the
surveillance-driven roll up of the terrorist plot in Britain to blow up
U.S.-bound airliners. In this environment, monitoring the communications of
our enemies is neither a luxury nor some sinister plot to chill domestic
dissent. It is a matter of life and death.
So let's set aside the judge's Star Chamber rhetoric and try to examine her
argument, such as it is. Take the Fourth Amendment first. The "unreasonable
search and seizure" and warrant requirements of that amendment have their
roots in the 18th-century abuses of the British crown. Those abuses involved
the search and arrest of the King's political opponents under general and
often secret warrants.
Judge Taylor sees an analogy here, but she manages to forget or overlook
that no one is being denied his liberty and no evidence is being brought in
criminal proceedings based on what the NSA might learn through listening to
al Qaeda communications. The wiretapping program is an intelligence
operation, not a law-enforcement proceeding. Congress was duly informed, and
not a single specific domestic abuse of such a wiretap has yet been even
alleged, much less found.
As for the First Amendment, Judge Taylor asserts that the plaintiffs -- a
group that includes the ACLU and assorted academics, lawyers and journalists
who believe their conversations may have been tapped but almost surely
weren't -- had their free-speech rights violated because al Qaeda types are
now afraid to speak to them on the phone.
But the wiretapping program is not preventing anyone from speaking on the
phone. Quite the opposite -- if the terrorists stopped talking on the phone,
there would be nothing to wiretap. Perhaps the plaintiffs should have sued
the New York Times, as it was that paper's disclosure of the program that
created the "chill" on "free speech" that Judge Taylor laments.
The real nub of this dispute is the Constitution's idea of "inherent
powers," although those two pages of her decision are mostly devoted to
pouring scorn on the very concept. But jurists of far greater distinction
than Judge Taylor have recognized that the Constitution vests the bulk of
war-making power with the President. It did so, as the Founders explained in
the Federalist Papers, for reasons of energy, dispatch, secrecy and
Before yesterday, no American court had ever ruled that the President lacked
the Constitutional right to conduct such wiretaps.
President Carter signed the 1978 FISA statute that established the special
court to approve domestic wiretaps even as his Administration declared it
was not ceding any Constitutional power.
BINGO! -- DSH
And in the 2002 decision In Re: Sealed Case, the very panel of appellate
judges that hears FISA appeals noted that in a previous FISA case (U.S. v.
Truong), a federal "court, as did all the other courts to have decided the
issue, held that the President did have inherent authority to conduct
warrantless searches to obtain foreign intelligence information."
We couldn't find Judge Taylor's attempt to grapple with those precedents,
perhaps because they'd have interfered with the lilt of her purple prose.
ZAAAAAAPPPP! -- DSH
Unlike Judge Taylor, Presidents are accountable to the voters for their
war-making decisions, as the current White House occupant has discovered.
Judge Taylor can write her opinion and pose for the cameras -- and no one
can hold her accountable for any Americans who might die as a result."
The Wall Street Journal
Correct! And she really doesn't give a damn. She simply wants to be
crowned, feted and lauded as Civil Libertarian of the Year and the National
Security of the American People be damned.
Lux et Veritas et Libertas
Vires et Honor