August 21, 2006

They’re the only ones standing in the way of Bush’s lawlessness.

Thursday’s decision by Judge Anna Diggs Taylor represents a huge and welcome slapdown to Bush. And no amount of slamming the judge by the pundits on the right over the weekend can detract from its power. Ruling the NSA spying to be illegal and unconstitutional, Judge Taylor said Bush was acting like a king.

The Administration, the judge ruled, “undisputedly” violates the Fourth Amendment, “undisputedly” violates the Foreign Intelligence Surveillance Act, violates the First Amendment, and violates the separation of powers. (You can find her ruling at aclu.org or by clicking here.)

Not mincing any words, she added: “The Constitution itself has been violated.”

She shredded the Administration’s two main arguments: that the Authorization for Use of Military Force (AUMF) against Al Qaeda justifies Bush’s spying, and that his commander in chief powers justify that spying.

As far as the first claim, she noted, “The AUMF says nothing whatsoever of intelligence or surveillance.” She also pointed out that FISA says “the exclusive means” by which electronic surveillance can occur is with a warrant. The Bush Administration’s contention that the AUMF implies general powers, including warrantless surveillance, to the President collides with the specific prohibition against such spying, she ruled. And she cited Supreme Court precedent that “the specific governs the general.”

As to the Administration’s second argument, on the President’s commander in chief powers, Judge Taylor properly noted that the logic of this claim is that the President has “the inherent power to violate not only the laws of Congress but the First and Fourth Amendments of the Constitution.”

She cited the precedent in Ex Parte Milligan that says, “The Constitution of the United States is a law for rulers and people, equally in war and in peace.”

Judge Taylor’s decision not only puts the Administration on notice. It puts Congress and all of us as citizens on notice: Bush is a law-breaker of the highest order.