'There Are No Hereditary Kings in America'

As I take the long view in the run-up to the fifth anniversary of the 9/11 attacks, it is obvious that America has been under attack from within as well as without. I'm talking about the Bush administration's systematic efforts to strip me of my rights to free speech and privacy, among other things.

It is much too soon to tell whether District Judge Anna Diggs Taylor's ruling on Thursday that the National Security Agency's warrantless domestic wiretapping program is illegal will stand.

But for a brief shining moment, anyway, we are reminded that the U.S. is a nation of laws and President Bush was absurdly incorrect to believe that Congress gave him carte blanche to do whatever he wanted in the wake of the 9/11 attacks.

Said Anthony Romero, executive director of the ACLU, which brought the lawsuit on which Judge Taylor ruled:

At its core, today's ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that's necessary to our democracy. [It is] another nail in the coffin in the Bush administration's legal strategy in the war on terror.

Jack Balkin at Balkinization is happy with the result but not the ruling itself:

[T]he court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court . . . has given are just not good enough. This is just the opening shot in what promises to be a long battle.

Here are pertinent excerpts from Judge Taylor's 44-page ruling:

. . . it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title II, and the First and Fourth amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never condensed into a single branch of government.

* * * * *

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth [Amendment] in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

* * * * *

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all "inherent power" must derive from that Constitution.