What's to Understand?

Yesterday, United States District Court Judge Anna Digs Taylor held that the United States Constitution prohibits the Bush administration from spying on its citizens accept in accordance with the principles of law that have kept this Country strong for over 200 years.

American Civil Liberties Union v. National Security Administration, 2006 U.S. Dist. LEXIS 57338 (E.D. Mich. August 17, 2006)

Commenting on that decision today, the President said:

“I would say that those who herald this decision simply do not understand the nature of the world in which we live,” Mr. Bush said in a question-answer session at Camp David, Md.

In response, I would say that those, such as President Bush, who do not herald this decision, do not understand the decision, and do not understand the Constitution and the importance of preserving its values.

The first half of the decision deals with procedural issues of standing and privilege which are of more interest to scholars than the general public. The second half of the decision, beginning at page 24, provides a useful history of electronic surveillance in the U.S. Courts:

Since the [Supreme] Court's 1967 decision of Katz v. United States, it has been understood that the search and seizure of private telephone conversations without physical trespass required prior judicial sanction, pursuant to the Fourth Amendment. Justice Stewart there wrote for the Court that searches conducted without prior approval by a judge or magistrate were per se unreasonable, under the Fourth Amendment.

Congress then, in 1968, enacted Title III of the Omnibus Crime Control and Safe Streets Act governing all wire and electronic interceptions in the fight against certain listed major crimes. . . . The statute also stated content requirements for warrants and applications under oath therefor made, including time, name of the target, place to be searched and proposed duration of that search, and provided that upon showing of an emergency situation, a post-interception warrant could be obtained within forty-eight hours.

In 1972 the [Supreme] Court . . . held that, for lawful electronic surveillance even in domestic security matters, the Fourth Amendment requires a prior warrant.

In 1976 the Congressional "Church Committee" [the United States Committee to Study Governmental Operations with Respect to Intelligence Activities] disclosed that every President since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses, and in 1978 Congress enacted the FISA.

Title III . . . was later amended to state that "the FISA of 1978 shall be the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted."

The FISA . . . requires a prior warrant for any domestic international interception of [a United States Person's] communications. For various exigencies, exceptions are made. That is, the government is granted fifteen days from Congressional Declaration of War within which it may conduct intercepts before application for an order. It is also granted one year, on certification by the Attorney General, and seventy-two hours for other defined exigencies. ["case law has long permitted law enforcement action to proceed in cases in which the lives of officers or others are threatened in cases of "hot pursuit", border searches, school locker searches, or where emergency situations exist."]

Those delay provisions clearly reflect the Congressional effort to balance executive needs against the privacy rights of United States persons, as recommended by Justice Powell in the Keith case when he stated that:

Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.

* * * *

A FISA judicial warrant, moreover, requires a finding of probable cause to believe that the target was either a foreign power or agent thereof, not that a crime had been or would be committed, as Title III's more stringent standard required. Finally, a special FISA court was required to be appointed, of federal judges designated by the Chief Justice. They were required to hear, ex parte, all applications and make all orders.

The FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment. It is fully described in United States v. Falvey, where the court held that FISA did not intrude upon the President's undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this country.

The [FISA] Act was subsequently found to meet Fourth Amendment requirements constituting a reasonable balance between Governmental needs and the protected rights of our citizens.

ACLU v. NSC, 2006 U.S. Dist. LEXIS 57338, at *45-52 (footnotes and citations omitted) (emphasis added).

As Judge Taylor noted, it was against this background that the Bush Administration instituted the NSA warrantless wiretapping program.

In other words, the law was as clear as it could be, and that any sophistry and self-serving denial aside, the Bush administration knew that it was breaking the law when it decided to go ahead with this program.

And, just as an aside, it's no good for them to say that it wasn't our fault, the lawyers said we could. If I get a crooked lawyer to give me a legal opinion that said I can kill my wife. That is not going to be a defense if I go out and do it. It just might make my lawyer an accessory. Similarly, just because Arturo Gonzalez gives President the advice he wants to hear, does not mean that the President is not liable for breaking the law.

Judge Taylor next considers the history, meaning and importance of the Constitution's Fourth Amendment which provides:

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.

Judge Taylor quotes a number of opinions of Supreme Court justices highlighting the Founding Fathers' reasons for including the Fourth Amendment in the Bill of Rights. From an historical perspective, Justice Douglas wrote:

For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment. In Entick v. Carrington, decided in 1765, one finds a striking parallel to the executive warrants utilized here. The Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seize libelous material and libellants of the sovereign. . . . Lord Camden wrote that if such sweeping tactics were validated, then the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.' In a related and similar proceeding, Huckle v. Money, the same judge [held that] '(t)o enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition . . .' [t]he tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists, have been recognized as the primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights.

Justice Powell, also considered these cases:

Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. 'It is not fit,' said Mansfield, 'that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.'

Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a 'neutral and detached magistrate.' The further requirement of 'probable cause' instructs the magistrate that baseless searches shall not proceed.

Justice Powell has also written:

The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

And Justice Stewart has written, in terms little subject to interpretation:

'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.

After considering the historical meaning and purposes of the Fourth Amendment, Judge Taylor concluded:

The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the power to search would not continue in our new nation.

Accordingly, the Fourth Amendment, about which much has been written, in its few words requires reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

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

ACLU v. NSA, 2006 U.S. Dist. LEXIS 57338, at *57-58.

Judge Taylor also considered the Constitutionality of the NSA eavesdropping program under the First Amendment and found it wanting there as well. The First Amendment provides:

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.

As the Supreme Court has noted:

This Amendment, the very first which the American people required to be made to the new Constitution, was adopted, as was the Fourth, with Entick v. Carrington, and the actions of the star chamber in mind. . . . Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure. . . . This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.

This basic liberty right, and the need to balance it against executive claims of need were weighed by Congress and its determinations were included in FISA, which provides that:

no United States person may be considered . . . an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the Constitution of the United States.

50 U.S.C. § 1805(a)(3)(A). As Supreme Court Justice Powell wrote:

National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of 'ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. 'Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power'. History abundantly documents the tendency of Government--however benevolent and benign its motives--to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs

Thus the Court held that the NSA eavesdropping program non only violated the terms of FISA, but that it also violated the First and Fourth Amendments of the Constitution.

One thing the foregoing exerpts from the opinion demonstrates. There is no evidence that Judge Taylor engaged in any "interpretation" of the Constitution. The terms of the First and Fourth Amendments are clear. The Supreme Court precedents are clear. The intentions of the Founding Fathers are clear. Judge Taylor did exactly what President Bush continually complains that liberal judges don't do: she applied the clear law without interpretation.

The President says:

“I would say that those who herald this decision simply do not understand the nature of the world in which we live.”

I say the President is looking for a Judge who will ignore the plain text of the Constitution and interpret in such a way as to permit him to break the law whenever he decides it is necessary, without the benefit of any oversight. Judge Taylor determined that under the Constitutional Separation of Powers doctrine, the President, pursuant to the Constitution and his oath of office, is no more permitted to break the law than any other U.S. Citizen.

The point of all this is that in 1776, Thomas Jefferson, George Washington, Alexander Hamilton, Benjamin Lincoln, James Madison, and others, to quote President Lincoln "brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal." One of their most basic complaints was the King's execution of warrantless searches and seizure. The power asserted here by President Bush, the power to be judge, jury, prosecutor and executioner all in one, has always been rejected as the most basic privilege of tyranny.

Every democracy that has given way to tyranny, has done so at the hands of popular leaders, who, when confronted with crises, were granted ever-expanding powers by their constituents. Each new assault we allow the President (or Mayor Blumberg) to make on our basic Constitutional liberties, makes the next one easier. Forgive me for relying on the domino theory here, but the historical evidence is replete that people are always safer when certain basic protections are considered absolute.

If George Bush, doesn't understand that much, he does not understand the Constitution. If he doesn't understand that much, how can he hope to spread democracy abroad? If he doesn't understand that much, he has learned nothing in his five years of fighting terrorism.