U.S. District Court Judge Anna Diggs Taylor has issued a ruling in the case American Civil Liberties Union et al. v. National Security Agency/Central et al. (2006), regarding the NSA’s warrantless wiretap program (TSP). The Bush administration and Congress have publicly acknowledged the existence of the program, yet the government tried to argue that the plaintiffs do not have standing, and that to allow discovery necessary to the case would harm national security. President Bush has claimed that the program is legal, and that as president he has “inherent power” to do whatever is necessary to protect the nation, the Constitution and U.S. laws notwithstanding.
Athough Judge Taylor found the TSP program to be unconstitutional on multiple grounds, including the First Amendment, Fourth Amendment, and Separation of Powers, in my view the most important part of the decision is the ruling that the President’s “inherent power” derives from the Constitution and is thus constrained within the limits it sets:
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.
We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well.51 In the Youngstown case the same “inherent powers†argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war.52 Indeed, since Ex Parte
Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .†Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.
Judge Taylor granted the plaintiffs’ request for a permanent injunction. Naturally the government is appealing the ruling. It will be interesting to see whether they are able to obtain a stay of the injunction. And even if the ruling stands, we may never know whether the government actually honors it.
Judge Taylor wraps up the decision with a wonderful quote:
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. Id. at 264.
Federal District Court rules warrantless wiretaps illegal
U.S. District Court Judge Anna Diggs Taylor has issued a ruling in the case American Civil Liberties Union et al. v. National Security Agency/Central et al. (2006), regarding the NSA’s warrantless wiretap program (TSP). The Bush administration and Congress have publicly acknowledged the existence of the program, yet the government tried to argue that the plaintiffs do not have standing, and that to allow discovery necessary to the case would harm national security. President Bush has claimed that the program is legal, and that as president he has “inherent power” to do whatever is necessary to protect the nation, the Constitution and U.S. laws notwithstanding.
Athough Judge Taylor found the TSP program to be unconstitutional on multiple grounds, including the First Amendment, Fourth Amendment, and Separation of Powers, in my view the most important part of the decision is the ruling that the President’s “inherent power” derives from the Constitution and is thus constrained within the limits it sets:
Judge Taylor granted the plaintiffs’ request for a permanent injunction. Naturally the government is appealing the ruling. It will be interesting to see whether they are able to obtain a stay of the injunction. And even if the ruling stands, we may never know whether the government actually honors it.
Judge Taylor wraps up the decision with a wonderful quote: