The Obfuscation Report

by mcjoan

A quick review of Judge Diggs Taylor's decision [pdf] demonstrates that she has categorically and unequivocally rejected the dangerous Bush administration theories of unitary executive and President as King as well as the several specious arguments that the Bush administration has forwarded to defend its behavior.

First, Judge Taylor finds that the Bush administration's warrantless eavesdropping program violates the Fourth Amendment. From the decision:

Accordingly, the fourth amendment . . . requires reasonableness in all searches. It also requires prior warrants for any reasonable search based upon prior existing probable cause . . . and the interposition of a mutual magistrate between executive branch enforcement officers and citizens.

Hmmmm.... I wonder if General Hayden has figured out yet that the Fourth Amendment requires warrants.

In addition, Judge Diggs Taylor finds that the administration has been in violation of FISA for the last five years.

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants . . . for several types of exigencies, reducing the probable cause requirement . . . and extension of . . . approved wiretaps from thirty days to a ninety day term. All of the above Congressional concessions to Executive need and to the exigencies of our present situation . . . have been futile. The wiretapping program here in litigation has undisputably been continued for at least five years, it has undisputably been implemented without regard to FISA . . . and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that Constitution.

One by one, Judge Diggs Taylor takes on each of the administration's specious arguments that the Bush administration forwarded to support its unconstitutional behavior and demolishes them. Readers of Glenn Greenwald and Armando at this site will be familiar with the arguments the judge adopts. For example, Judge Diggs Taylor wrote:

In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The president undisputably has violated the provisions of FISA for a five-year period. Justice Black wrote, in Youngstown:

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who make laws which the President is to execute. The first section of the first article says that `All legislative powers herein granted shall be vested in a Congress of the United States * * *'

The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President. . . . The Constitution did not subject this law-making power of Congress to presidential or military supervision or control. Youngstown, 343 U.S. at 587-588.

These secret authorization orders must, like the executive order in that case, fall. They violate the Separation of Powers ordained by the very Constitution of which this President is a creature.

Judge Diggs Taylor simularly dispatched the Bush administration's absurd arguments that the AUMF authorized the President to violate FISA and Bush's dangerous argument that Article II of the Constitution provides the President the power to become a King during wartime. In sum, it is a devastating and categorical rejection of the Bush administration's attempt to overturn our Constitution. Of course this is a district court opinion, which the administration is already in the process of appealing, so it's not the final word. Nonetheless, it is a very encouraging first word on the BUsh adminstration's outrageous, unconstitutional behavior.