August 19, 2006

Judge Rules Against Bush for Wiretapping Without Warrants: Triumph or Tragedy?

By Julian Dunraven

All day long, I have listened to the shrieking of my conservative friends as they denounce the ‘terrible’ decision by a U.S. district court judge to end the Bush administration’s warrantless wiretapping program. ACLU v. NSA. It seems they think the honorable judge has put all of national security at risk with the naive notion that we can fight terrorism according to the same rules we use to fight common criminals. Knowing the miserable quality of reporting the major media sources continually exhibit on questions of law, I understand why they hold such a dismal opinion of this case. However, having read the honorable judge’s opinion myself, I am thoroughly convinced that she has actually strengthened national security, and that conservatives would be the last people to take issue with this decision if they only took the time to read it. It is based soundly in traditional conservative principles. Let me see if I can condense it here.

First, no state secrets were ever at risk. The court considered the legality of the wiretapping program based on statements the Bush administration has already made public: (1) The wiretapping program exists. (2) The Bush administration monitors communication between U.S. citizens and people overseas suspected of having some connection, to a terrorist organization. (3) The monitoring is conducted without warrants.

In considering these facts, the court looked to our history. It pointed out that searches and seizures without warrant were among the offenses committed by King George III against the American colonists prior to the Revolutionary War. These searches terrified the people and chilled any speech or publication that might criticize the King for fear of being labeled seditious. After the American Revolution, the Founders enshrined two amendments into the Constitution in order to prevent such abuses from ever occurring again. We now know these as the First and Fourth Amendments to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
--U.S. CONST. Amend. I.

The right the of people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
--U.S. CONST. Amend. IV.

These two amendments work together to protect some of the most basic liberties we hold so dear. However, Congress is mindful, too, that when it comes to national security, the obligations of these amendments might be too cumbersome to carry out in the ordinary course of business. Thus, Congress passed the Foreign Intelligence Surveillance Act (FISA) as, “the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted.” 18 U.S.C. §2511(2)(f). This act sets up a special and secret court to grant surveillance warrants to the administration. Acknowledging the need to act quickly in matters of national security, it even gives the administration up to 72 hours after already beginning surveillance to seek a warrant. And so Congress has wisely provided for the administration to see to the needs of national security, while still permitting to judiciary to ensure the protection of civil liberties.

The Bush administration, however, has argued this is insufficient. It claims the President, as Commander in Chief of the Armed Forces under Article II of the U.S. Constitution, should have the right to see to matters of national security as he sees fit, independent of the laws of Congress and the warrant reviews of the judiciary. As one of the great Founders, James Madison, wrote in the Federalist Papers, though, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” THE FEDERALIST NO. 47. The court refused to allow President Bush to usurp both the Legislative and Judicial branches of government, and reminded the President that he is sworn to uphold and abide by the entire Constitution, not just Article II.

“He has affected to render the Military independent of and superior to the Civil
power.He has combined with others to subject us to a jurisdiction foreign to our
constitution, and unacknowledged by our laws; giving his Assent to their Acts of
pretended Legislation .”
-- The Declaration of Independence

Thomas Jefferson wrote those words over 200 years ago describing a few of the offenses committed by King George III against the American colonists. Today, they could as easily apply to the warrantless wiretapping program of President George Bush II—or they would had the court not stuck it down. In this case, the court defended the U.S. Constitution and the liberties it enshrines, protected the separation of powers from dissolving into tyranny, and provided legitimate means for the defense of this country—all principles long cherished by conservatives. In the end, the court managed to strengthen our national security, both against the terrorists that seek to destroy us from outside our borders, and the possibility of tyranny that could destroy us from within.

As the court noted in its conclusion, “Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution. 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.”
Julian Dunraven, J.D., M.P.A.


Anonymous Anonymous said...

My negation as written by today's editorial in the Rocky ---

Wiretap decision goes over the top,2777,DRMN_23964_4928086,00.html

Sat Aug 19, 02:42:00 PM  
Blogger the boodge said...


Mon Aug 21, 03:17:00 PM  
Blogger Julian Dunraven said...


Thanks for the editorial. How can anyone not like the language though? It reaches back through history to summon up the shades of the Founders to remind us what this country stands for. It then travels through 200 years of patriotic jurisprudence, invoking such noble and eloquent pronouncements that you can hear the words echoing and booming about you as if you sat listening in the immortal marble halls Justice Herself, though you read them silently. Hearken to the American Revolution and the Declaration of Independence. Hear the pronouncements of the Bill of Rights. Heed the warnings of the Federalist Papers. Our Founders are speaking! Tyranny, National Security, Separation of Powers! Does it get any better?

Anyway, we shall see what the 6th actually says. While it is true that some of the First Amendment arguments are rather novel, perhaps a bit tenuous, but certainly interesting, I don't think the overall decision is quite so weak as this editorial implies.

As Judge Taylor points out, electronic surveillance is defined as a search or seizure under the 4th Amendment. "In 1972 the court decided U.S. v. U.S. District Court, 407 U.S. 297 (1972) (the Keith case) and held that, for lawful electronic surveillance even in domestic security matters, the Fourth Amendment requires a prior warrant." Further, Justice Stewart held that:
"Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,’ (citation omitted) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions. Katz, 389 U.S. at 357."

As both are Supreme Court decisions, it is hard to get around the fact that electronic surveillance is a search or seizure and that such have been deems to require warrants.
Finally, Congress spoke quite clearly in Title III of the Omnibus Crime Control and Safe Streets Act when it further strengthened the FISA of 1978 as "the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted." As the President is the executive of the law and has no authority not granted by the Constitution or Congress, he is bound to follow Congressional will. This is certainly not being done. Even if Congress changes its mind, though (and it is worthy of noting that it has not yet come anywhere close to doing so), there is still the Constitutional question--which Congress cannot legislatively avoid.

Julian Dunraven, J.D., M.P.A.

Tue Aug 22, 05:51:00 PM  

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