Friday, August 18, 2006

"The Bill of Rights is not a suicide pact."

Federal judge Anna Diggs Taylor of the US District Court in Detroit would well to dwell upon these words of legendary Associate Justice and Nuremberg prosecutor Robert Jackson.

Jackson dissented in Terminiello vs. Chicago (1949) where the majority opinion overturned the disorderly conduct conviction of a priest whose anti-Semitic, pro-Nazi rantings at a rally had incited a riot. The court held that Chicago's breach-of-the-peace ordinance violated the First Amendment.

Jackson wrote:

"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

According to the NY Times, Judge Taylor wrote today that:

“It was never the intent of the framers to give the president such unfettered control, particularly when 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.”
[the plaintiffs] “are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney plaintiffs, uphold their oath of providing effective and ethical representation of their clients.”

Judge Taylor ruled that it violated not only the 1978 law, the Foreign Intelligence Surveillance Act, but also the Fourth Amendment, which prohibits unreasonable searches and seizures.

The president also violated the Constitution’s separation of powers doctrines, Judge Taylor ruled. Neither a September 2001 Congressional authorization to use military force against Al Qaeda nor the president’s inherent constitutional powers allow him to violate the 1978 law or the Fourth Amendment, she said.

“There are no hereditary kings in America and no powers not created by the Constitution,” she wrote, rejecting what she called the administration’s assertion that the president “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.”

Hereditary kings?? A bit of grandstanding by Judge Taylor, who was a Carter supporter and appointee.

The NSA warrantless wiretapping program is narrow and legal. The FISA Court of Review ruled on this in 2002. Byron York's explanation is excellent:

The three judges made up what is known as the FISA Court of Review. It was created in 1978 by the now-famous Foreign Intelligence Surveillance Act. The act required that the president go to the so-called FISA Court to seek a warrant for surveillance in top-secret foreign-intelligence cases. For any disputed decisions that might arise, Congress also created the Court of Review, a sort of super-secret appeals court.
The conflict began with the passage of the Patriot Act in October 2001. The act tore down the "wall" that had arisen in the Justice Department that blocked intelligence officials and criminal investigators from working together and sharing information. That wall had been cemented by a set of internal department guidelines written in 1995, in which then–attorney general Janet Reno outlined the department's constricted surveillance procedures.

The Patriot Act was designed to fix that problem. But a month after the act was passed, when the Justice Department submitted surveillance requests to the FISA Court under the new, looser standards passed by Congress, the FISA Court in effect rejected the Patriot Act, and instead reaffirmed the old 1995 Clinton-era standard.
In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. "In doing so, the FISA Court erred," the ruling read. "It did not provide any constitutional basis for its action—we think there is none—and misconstrued the main statutory provision on which it relied." The FISA Court, according to the ruling, "refus[ed] to consider the legal significance of the Patriot Act's crucial amendments" and "may well have exceeded the constitutional bounds" governing the courts by asserting "authority to govern the internal organization and investigative procedures of the Department of Justice."

And then the Court of Review did one more thing, something that has repercussions in today's surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant—from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

Essentially the FISA Court of Review said that President has the inherent CONSTITUTIONAL authority to conduct searches involving foreign persons and/or intelligence and that FISA cannot limit this power. Moreover, the Patriot Act, designed to protect the United States gives the executive more discretion. So, on the basis of the Constitution - as interpreted by the Court of Review - (the Supreme Court declined the subsequent appeal) and the Patriot Act, warrantless surveillance of domestic - foreign communications (and vice versa) is legal. And prudent.

In a clash of civilizations where the enemy is ruthless and implacable handicapping oneself is sanctimonious suicide but the Left seems to fear much more the possible abuse of power by a Republican president than a dozen airliners blown out of the sky.

UPDATE (by The Monk):

Judge Taylor is by no means a judicial heavyweight. When district judges have been on the bench for 27 years and never been bumped up to a circuit court seat, there's something amiss. In the case of the Sixth Circuit (Michigan, Ohio, Tennessee and Kentucky), her lack of promotion is a red flag that she's not a good judge by any stretch considering that the Sixth Circuit has been below capacity since the Clinton years and Judge Taylor had ample time (1979-1993) to prove her worth as a circuit court judge to the next Democrat to hold the presidency after Carter. Promoting a predecessor's district court appointees to circuit court seats is relatively routine (in The Monk's home circuit, the Fifth, Judges Higginbotham, Davis, Garza, Clement and Prado all were appointed district judges by one president [Ford, Reagan, Bush pere] and appointed circuit judges by a successor in the same party [Reagan, Bush pere, Bush fils]).

The Monk also notes that the case's location in eastern Michigan shows the nature of the ACLU's politics -- the highest concentration of Arab emigres is in the Detroit area, especially Dearborn.

For reasoned legal commentary on the ridiculousness of the "unreasonable search and seizure" finding by Judge Taylor and her opinion as a whole, see this column by Bryan Cunningham, who has served as legal counsel in the CIA, as a federal prosecutor under Clinton and as a legal advisor to the National Security Council under Pres. Bush.

For sharp commentary on the public policy intentions that her honor seems to have had for this opinion, see this column in the WSJ.

The Baseball Crank has a long post on this too that is worth reading.

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