IP Democracy: Judge in Wiretap Case: There Are No Kings in America

In a lengthy and eloquent decision, U.S. District Court Judge Anna Diggs Taylor of the Eastern District of Michigan (Detroit) threw a punch at the Bush Administration by ruling that the government’s warrantless wiretapping program is unconstitutional and should be immediately halted. In striking down the NSA’s controversial domestic spying program, Judge Taylor said that it violates free speech, privacy and separate of powers.

The ACLU filed the suit on behalf of journalists, scholars and lawyers who claim that the spying has made it difficult for them to do their jobs because overseas contacts will no longer talk to them. In ruling on the government’s motion to dismiss or in the alternative motion for summary judgment, Judge Taylor did dismiss one complaint about data-mining of phone records after the fact.

She said that unlike the domestic spying program, which has been made public and widely discussed by Administration officials, the data-mining efforts are less well-known. Therefore, proceeding with litigation on data-mining might jeopardize state secrets.

Judge Taylor’s distate for the warrantless spying on American citizens, and her contempt for the Bush administration’s assertion of supreme executive power to justify that spying, is clear throughout her opinion. At one point, she basically states that Bush, in implementing the wiretapping initiative by executive fiat, acted as if he were an hereditary king, a ruler who is above the law.

The Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

U.S. citizens are free now to make phone calls to overseas friends, family members and colleagues without threat of the government listening in — at least for the time being. The Bush Administration plans to appeal Judge Taylor’s decision. The ruling to suspend the wire-tapping is stayed pending a September 7 hearing, as a very helpful commenter pointed out.

Posted by Cynthia Brumfield on August 17, 2006 6:12 PM to IP Democracy