Warrantless Wiretap Program in Doubt

WASHINGTON - "There are no hereditary kings in America and no powers not created in the Constitution."

That eloquent putdown of an imperial presidency was the essence of a ruling by U.S. District Judge Anna Diggs Taylor, who declared President Bush's warrantless wiretap program was unconstitutional.

Bush secretly authorized the intercepts after the 9/11 terrorist attacks, with the stated goal of eavesdropping on international calls and e-mails by potential al-Qaida terrorists. Existence of the program was revealed by The New York Times on Dec. 16.

After Taylor's decision, Bush immediately announced he would appeal. On Monday, he told reporters, "It was a terrible opinion. ... "

The ruling was made in a lawsuit brought by the ACLU and others representing scholars and journalists.

Taylor said the government surveillance program run by the National Security Agency violates privacy and free speech rights under the Bill of Rights. She also found the telephone taps violate the 1978 Federal Intelligence Surveillance Act, which requires court approval before the government can wiretap within the U.S.

"It was never the intent of the framers (of the U.S. Constitution) to give the president such unfettered control, particularly when such actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," Taylor said.

The administration argued the 2001 congressional resolution authorizing the use of force -- passed after the terrorist attacks -- gave Bush the right to create the program. But Taylor noted the congressional resolution "says nothing whatsoever of intelligence or surveillance."

Both sides agreed to a temporary stay of her order halting government wiretapping until a Sept. 7 hearing.

It is odd that the administration finds the FISA law so burdensome, since obtaining a warrant should be no problem even in an emergency. The record shows the special court created by FISA almost always approves requests for electronic eavesdropping. The law also allows for retroactive approval in emergencies.

The alleged plot foiled in Britain to bomb airliners bound for the U.S. undoubtedly bolsters the administration's warnings about terrorism but still does not explain why the Bush administration balks at getting a warrant to spy legally.

Taylor's arguments have been trashed by some law school professors. Even some who agreed with her bottom-line ruling took issue with her reasoning and rhetoric.

But to an average American, the ruling's beauty rests in its simplicity and the inspiration that the Constitution still prevails.

Anthony Romero, the ACLU executive director, said the ruling vindicates the notion there are limits on the scope of executive authority.

"Ultimately," Romero added, "any doubts about the decision will be taken on appeal by sitting federal judges rather than pundits or commentators."

Last February, the American Bar Association adopted a resolution calling on the president "to abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees."

The ABA urged the president to seek appropriate legislation, rather than act outside the law, if he feels the existing legal framework is somehow lacking.

The ABA also noted that the Watergate scandal in the Nixon administration revealed abuses of government wiretapping. This led a Senate committee to recommend legislation to provide the government with needed authority to conduct surveillance to protect national security but also to protect against abuses of that authority.

The result was the 1978 law creating the FISA court.

The Taylor decision is expected to face tough going before the conservative U.S. 6th Circuit Court of Appeals and the U.S. Supreme Court.

Let's hope the higher courts do not allow the president to break the law.