Just as a terrorist plot was thwarted by vigorous surveillance, a U.S. judge has decided that such surveillance is unconstitutional. From the Washington Post:
A federal judge in Detroit ruled yesterday that the National Security Agency's warrantless surveillance program is unconstitutional, delivering the first decision that the Bush administration's effort to monitor communications without court oversight runs afoul of the Bill of Rights and federal law.
U.S. District Judge Anna Diggs Taylor ordered a halt to the wiretap program, secretly authorized by President Bush in 2001, but both sides in the lawsuit agreed to delay that action until a Sept. 7 hearing. Legal scholars said Taylor's decision is likely to receive heavy scrutiny from the U.S. Court of Appeals for the 6th Circuit when the Justice Department appeals, and some criticized her ruling as poorly reasoned.
I suspect that Judge Diggs Taylor's ruling will be overturned in short order, for it is not consistent with previous law on this topic. The Wall Street Journal has this:
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. 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.
My friend at CCK has this:
The problem with Bush's practice of wiretapping anyone he wishes isn't the practice of wiretapping in and of itself.
The problem is that he's doing it without oversight. He claims oversight, but that oversight is from within his own branch of government.
We have something in this country called checks and balances on the powers of each branch of government. And Bush and his apologists have forgotten that.
I emphatically agree that oversight is required, but the question is whether it should be judicial oversight. Consider for example the Fourth Amendment, as brought to you by EPublius:
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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
When the FBI or MI5 is scrambling to stop terrorists from blowing ten airliners out of the sky, either has to be able to follow any piece of information instantly to its source. The prior warrant regime of the Fourth Amendment is no more applicable here than in a house to house search in Baghdad.
The only oversight that can work in this environment is Congressional oversight, which is in fact in place. If the Democrats in Congress think the current scheme is inadequate, let them propose a new one. But caution is in order. I gather Judge Diggs Taylor was worried that the government might listen into a conversation between Osama and some New York Times reporter. Maybe it wouldn't be too savvy to frame the issue as one between the next Pulitzer prize and a High School Choir from Boise returning from a trip to London.
Recent Comments