Court Holds Warrantless Wiretaps Unconstitutional

A federal court has thrown out the Bush administration’s creative reading of the US Constitution when it comes to warrantless wiretaps. US District Judge Anna Diggs Taylor, in Detroit, Michigan, handed down a 44-page decision that effectively guts the badly named Terrorist Surveillance Program of the National Security Agency. Of course, there will be an appeal, but for now, the power-mad White House has been stopped.

Barring a successful appeal, the court did offer a way forward for the administration. The Busheviks could follow the law. The Foreign Intelligence Surveillance Act of 1978 established a judicial procedure that allows a warrant to be issued up to 72 hours after surveillance begins if necessary. The White House felt that was too much trouble, but it is hardly fighting terrorist threats with one hand tied behind one’s back.

Of course, the Busheviks don’t quite understand the idea of freedom very well anyway. They are quite prepared to burn the village to save the village on this point. As Judge Taylor cited, “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.” Irony also confuses and befuddles the White House along with freedom.

The real effect of this ruling is to undermine the entire “unitary presidency” myth that the administration has made the cornerstone of its constitutional theory; that, is there are “inherent powers” (X-ray vision?) that come with being president. In Germany seventy or so years ago, the term was fuhrerprinzip, which meant there was no law higher than the leader’s will. No one can be trusted with such power, and certainly not the incompetent yahoos in and around the Oval Office these days.

Judge Taylor wrote, “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 . . . . There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.”

This is severely damaging because Mr. Bush has renewed the warrantless wiretap program thirty or so times since he first embarked on it. Moreover, he told the country while campaigning in 2004, “A wiretap requires a court order; nothing has changed” – the baldest of bald faced lies. When the US Constitution discusses impeachment, it relies on the 18th century formula, “high crimes and misdemeanors.” Mr. Bush has violated his oath of office, he has authorized NSA lawbreaking, and he lied to the public about it, thus meeting those 18th century standards. The offenses are impeachable, but two words will stop that from happening: “President Cheney.”

© Copyright 2006 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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