Tuesday, August 22, 2006

Thursday’s Wiregate Ruling Will Matter Only in the Arena of Public Opinion

The first wave of lower court rulings in the Wiregate scandals has just begun to break against the steadily eroding edifice of the Bush presidency. Last Thursday, a Federal judge in the Eastern District of Michigan ruled the President’s constitutional authority insufficient to support one of the illegal NSA wiretapping programs. The case, ACLU v. NSA, concerns unsanctioned government monitoring of phone calls between people in the United States and those outside if one party is “reasonably suspected” to be affiliated with Al Qaeda in any way. No authorization of any kind is required or even sought from anyone other than the President himself. There is no review of the program’s legitimacy or effectiveness by anyone other than the President himself.

The President’s lawyers at the Office of Legal Counsel have argued in this case and others like it that the Executive has independent constitutional authority to do pretty much whatever the hell he wants when acting as Commander-in-Chief. Use of surveillance is an incident of war, they say, and since we are in the midst of a War on Terror® declared by Congress via the Authorization for the Use of Military Force in the wake of 9/11, the government is free to surveil. The White House is also asserting the state secrets privilege in this case, which would bar the matter from judicial scrutiny altogether. Bush is not only arguing that he doesn’t have to stop, he’s arguing that the courts can’t even say whether it’s legal!

John Yoo, an influential legal scholar and one of the primary architects of this framework, argued in public less than a year ago not only that the President has the power to order a suspect watch his or her child being tortured (including crushing his testicles) in order to make the suspect talk, but also that this power is so deeply rooted in the constitution that Congress cannot pass a law forbidding it. This kind of dictatorial barbarism is ludicrous, but even the President’s own lawyers concede that it is the logical extension of the very same theory of executive power they advance in defense of simple surveillance powers.

The array of laws violated by the program is rather impressive; the judge held the scheme to be contrary to the First and Fourth Amendments, statutory wiretapping laws like FISA, and the “Separation of Powers principle” which states that Congress makes the law and the President carries it out. The judge felt that nearly all of the claims could be supported on the basis of information already made public but, interestingly, sustained the national security objection with regard to the count of datamining.

Judge Taylor’s opinion is grandiose and palpably annoyed with this abuse of Presidential power, but the effect of her words will probably be quite small. The fact is that this case is headed for the Supreme Court, and Taylor’s oratory will have little effect there. Indeed, the case itself is not even the most important one of its kind trickling through the courts.

The real bombshell in this line of cases is going to be Hepting v. AT&T, which was filed by an irate customer with the backing of the Electronic Frontier Foundation. Not long after The New York Times broke the story about international calls being tapped, an AT&T employee by the name of Mark Klein came forward with testimony about datamining equipment being installed in AT&T facilities by NSA personnel. The EFF is accusing the Bush administration of tracking every phone call that crosses U.S. communications lines, including personal calls between citizens of America not even suspected of illicit activity.

This case is going forward also, but slowly. Most recently, the judge in the case ordered a public trial, rejecting the government’s requests for a secret trial on the basis of (you guessed it) national security. The wisdom of the courts has thus far held, but the ultimate decision of an increasingly executive-friendly Supreme Court is the only one that matters. The lower court decisions serve merely to keep the public aware of the controversy and foster discussion about what an unrepentant autocrat we elected.


Anonymous kate said...

Was Yoo's assertion theoretical or in regards to something the U.S. actually did?
Dear God....

8/22/2006 12:51 PM  
Blogger J. Aaron Brown said...

Theoretical, said during a debate in Chicago back in December. here's a link to an article on the topic.

8/22/2006 9:31 PM  
Anonymous kate said...

Thank you. Glad to know it didn't actually happen, at least.

8/23/2006 8:49 AM  

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