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BREAKING: Bush spying is unconstitutional
By Evan Derkacz
Posted on August 17, 2006, Printed on November 26, 2009
http://www.alternet.org/bloggers//40478/
A federal judge in Detroit, Anna Diggs Taylor, has ruled (pdf) that Bush's NSA spying program is a violation of the Constitution (clip right).
Thinkprogress writes: The lawsuits have alleged that NSA program violated the First and Fourth Amendments, as well as a number of federal statutes, including the Foreign Intelligence Surveillance Act (FISA). The defendants included AT&T and the federal government. It should be noted that the president KNEW this was a violation of the constitution. That wasn't his argument. The argument was that he was given the authority to do so by the AUMF, or the authorization to use military force by the congress.
Wisconsin Senator Russ Feingold pointed out the obvious, which, given the state of spin, is necessary:
We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA's warrantless wiretapping program. Today's federal court decision is an important step toward checking the President's power grab. Going forward, this decision will be appealed and the spying will likely continue until Judge Taylor's decision is reaffirmed by the 6th Circuit Court. However, legislation like Arlen Specter's pernicious bill which would effectively legalize the president's spying program (as well as retroactively legalize all past spying) are null and void, according to Glenn Greenwald, who has an excellent roundup of the 8 important conclusions from the decision. Greenwald writes:[A]s of right now, it is illegal, according to this federal court, for the Bush administration to continue to implement its "Terrorist Surveillance Program," and since it is grounded in constitutional conclusions, nothing -- such as Arlen Specter's dreaded bill -- could change that. Those who disagree with the ruling are already busy attempting to discredit Judge Taylor but they will find it exceedingly difficult to do so given her credentials. Anna Diggs Taylor has...
a sterling reputation as one of the earliest black women to attend Yale Law School. She was a fierce Civil Rights advocate in the 60s and has, according to a Detroit Free Press article, a reputation for showing excellent judgement. According to former National Bar Association president Harold Pope III, "She'll rule based on what the law requires, not on what people perceive her biases to be."
The Free Press article goes on to note that while Pope and Taylor worked together to integrate Detroit's city government in the 70s, Taylor ruled against Pope's effort to reserve city jobs for minorities in the 90s.
Judge Taylor, who notes that... "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" ... does not agree:The Government argues here that it was given authority by that resolution to conduct the TSP in violation of both FISA and the Constitution. First, this court must note that the AUMF says nothing whatsoever of intelligence or surveillance. The government argues that such authority must be implied. Next it must be noted that FISA and Title III, are together by their terms denominated by Congress as the exclusive means by which electronic surveillance may be conducted. Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable. Indeed, the government here claims that the AUMF has by implication granted its TSP authority for more than five years, although FISA’s longest exception, for the Declaration of War by Congress, is only fifteen days from date of such a Declaration. A summary of the decision's highlights courtesy of Onnesha Roychoudhuri...
Do the plaintiffs have standing? Of course they have standing. And even if they didn't, your embarrassing ploy to deny justice is totally counter to our country's principles:
Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. 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.
It violates the Fourth Amendment:
The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.
The President of the United States is himself created by that same Constitution.
It violates the First Amendment:
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.
It violates the Separation of Powers:
These secret authorization orders must, like the executive order in that case, fall. They violate the Separation of Powers ordained by the very Constitution of which this President is a creature.
But what of the argument that AUMF trumps all? Sorry, no help there:
The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine.
But what of Inherent Powers? Nope:
The argument that inherent powers justify the program here in litigation must fail.
It's the Constitution, stupid:
Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.
As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):Implicit in the term 'national defense' is the notion of defending
those values and ideas which set this Nation apart. . . . It would
indeed be ironic if, in the name of national defense, we would
sanction the subversion of . . . those liberties . . . which makes the
defense of the Nation worthwhile.
Evan Derkacz is a New York-based writer and contributor to AlterNet.
© 2009 All rights reserved.
View this story online at: http://www.alternet.org/bloggers//40478/
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