Judge Taylor got it right on wiretapping.

The law, lawyers, and the court.
Aug. 18 2006 4:34 PM

Every Executive Needs a Limit

Judge Taylor got it right on wiretapping.

The Constitution is the winner in Thursday's decision by a federal judge  in Detroit to invalidate the National Security Agency's program of warrantless wiretapping. The Bill of Rights is a constant reminder that the ends do not justify some means. Surely, there would be less crime and more safety if the police could search anyone's person or property, at any time, without a level of suspicion that meets the legal definition of probable cause. But a society that values privacy and dignity does not accord the police such authority, even when the objective is fighting terrorism.

Judge Anna Diggs Taylor followed basic constitutional principles in ruling that the NSA must not engage in warrantless electronic surveillance. The core requirement of the Fourth Amendment is that, subject to narrow exceptions, police searches and wiretaps must be authorized by a warrant issued by a judge and based on probable cause. The framers of the Constitution were deeply distrustful of executive power and wanted to make sure that searches and arrests were authorized by a neutral magistrate.

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Federal statutes reaffirm this by requiring the government to obtain a warrant when it engages in wiretapping. Under these laws, the government usually goes to federal district court for the required warrant. Or, if the person it wants to listen in on is thought to be acting at the direction of a foreign power, then the government goes to the Foreign Intelligence Surveillance Court. The law is explicit: The government must follow one of these two procedures before engaging in electronic surveillance.

The Bush administration, however, has intercepted millions of conversations and e-mails between American citizens and foreign nationals without going first to either federal district court or to the FISA court, and without meeting the requirements for a warrant and probable cause mandated by the Constitution and federal statutes. Judge Taylor rightly held that the president has no such power.

The president's claim of executive authority to ignore the Fourth Amendment and violate federal laws in the name of protecting national security has no apparent limits. Under the Bush administration's argument, federal law enforcement could seemingly go into anyone's home, at any time, without a warrant by claiming that it might better catch terrorists. There is simply no obvious stopping point, and that's what makes the president's claim of broad executive power so alarming. Nor is there any reason to believe that warrantless wiretapping is needed to protect national security. The administration could have gone to the Foreign Intelligence Surveillance Court, which approves more than 99 percent of all government requests for warrants. Under the procedures of that court, it even could have gotten the warrant after the surveillance had been done.

The Bush administration claimed that it has the power to engage in warrantless wiretapping under the Joint Resolution Authorizing the Use of Military Force passed by Congress after Sept. 11, which authorized the "use of all necessary and appropriate force." The government's theory is that this provision extends to everything from wiretapping to the indefinite detention of the men being held at Guantanamo Bay. But this broad reading of the AUMF failed earlier this summer in Hamdan v. Rumsfeld, when the Supreme Court rejected the government's argument that the AUMF provided the necessary authority for it to set up special military commissions to try the Guantanamo detainees. The court said that the generalized language authorizing the use of force could not be taken to override specific statutes and treaties. In short, the court made it clear that the AUMF cannot be viewed as a blank check authorizing anything the president wants to do in the war on terrorism. Judge Taylor, then, was correct to rule that Congress gave the president permission to use troops and take military actions—not to eavesdrop electronically, which is not military force.

Judge Taylor's ruling has been criticized because it did not offer a full explanation for why the NSA's warrantless eavesdropping is unconstitutional. And the judge herself has been derided for overstepping the judiciary's proper role. But critics would have objected to Taylor's opinion no matter how it was written. As for the notion that the judge went too far, it is precisely the role of the federal courts to interpret the Constitution and to determine if it has been violated. Also, it's important to note that this decision was not a total victory for the plaintiffs who challenged the NSA wiretapping. Taylor dismissed the part of their suit that challenged as an invasion of privacy the NSA's "data mining" practice, whereby computers review large amounts of information to find patterns and learn new things about a person.Judge Taylor accepted the government's argument that "state secrets" might be revealed if the plaintiffs were allowed to press this part of their suit, and thus declined to give any consideration to this claim.

The Bush administration has mounted a "state secrets" defense as a blanket response to any challenges to its actions in the war on terrorism. To be sure, the government's interest in protecting state secrets is compelling—of course the government possesses information that should be kept secret. But the government should not be able to violate the Constitution and then completely avoid accountability by forcing the dismissal of any and every piece of related litigation on the grounds that it implicates state secrets. There are means for keeping information secret short of preventing all judicial review. Federal courts have in place rules for examining evidence "in camera," or confidentially, that have worked well for centuries. Perhaps the administration's "state secrets" mantra will get a closer look in an ongoing suit challenging the NSA domestic surveillance in federal court in San Francisco.

The most important thing to keep in mind, in weighing Judge Taylor's ruling against the government's arguments, is that no administration in memory, and perhaps none ever in American history, has so frequently claimed that it can ignore the Constitution, as well as federal statutes and ratified treaties, to pursue important goals. Lawyers for the Bush administration have argued that the government can engage in torture in violation of federal statutes and treaties in the name of national security. They have claimed the power to detain American citizens as enemy combatants without complying with the Fourth, Fifth, and Sixth Amendments. They have argued that the administration can ignore federal statutes and the Geneva Conventions in imprisoning individuals indefinitely in Guantanamo.

It is the role of the federal courts to say no to such actions. Judge Taylor did exactly that on Thursday. Now it's up to the federal court of appeals and the Supreme Court to back her up.

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