In the "Anybody with three brain cells to rub together could have told you that" department, District Judge Anna Diggs Taylor found the super-secret NSA wiretapping program so beloved of the Bushoviki to be unconstitutional on its face, and also in violation of the Foreign Intelligence Surveillance Act of 1978. I'm not going to spend much time on the details of the ruling, as that's been more than adequately handled by others here and elsewhere. The full opinion is here (PDF link) if you want to read it; I'm going to spend my time looking at the broader implications of the ruling.
If it were up to me, Abu Gonzalez would have been disbarred long since. It's apparent to this observer at any rate that there is no legal principle, no civil right, no constitutional or other precedent, he will not overturn, abrogate, or ignore if in doing so he can please his masters in the White House. Funny, but I'm pretty sure I remember reading someplace that it was the president's job to "take Care that the Laws be faithfully executed," and that he was required to take a solemn oath in which he promised to "preserve, protect and defend the Constitution of the United States." (Scroll down to Article II, sections 2 and 3.) And I'm pretty sure that all cabinet officials (including the attorney general) take a similar oath before entering into their offices.
But none of that matters to Gonzalez. The only thing he seems to care about is getting results:
"We're going to do everything we can do in the courts to allow this program to continue," Attorney General Alberto Gonzales said at a news conference in Washington. Gonzales maintained that the program is legal and useful. "We've had numerous statements by leaders of the intelligence community about the effectiveness of the program in protecting America," he said.
Sorry, Abu, but it isn't your job to worry about the effectiveness of the NSA's spying. It's your job to make sure that they've dotted all their "i"s, crossed all their "t"s, and gotten all their warrants in order. Oops, you kinda forgot about that last one, didn't you?
The whole opinion is a stinging rebuke to the Shrubbery, to Abu Gonzalez, and to the Boy Who Would Be King over a unitary executive in particular. The first zinger comes on page 31 of the opinion, just at the end of the fifth section. After an exhaustive historical review of Fourth Amendment jurisprudence going back even before the Revolution, Judge Diggs Taylor plants the shiv and twists it home:
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.
In other words, the Executive Branch has all the tools it needs to conduct necessary intelligence-gathering operations in furtherance of national security within the FISA: the so-called Terrorist Surveillance Program (which I would preferentially term the Total Surveillance Program, as that is obviously the Shrubbery's intent--to spy on absolutely anyone, for any reason or for no reason at all, whom they suspect may be a threat to their continuance in power--be they terrorists, agents of foreign powers, or American citizens exercising their constitutional rights to free assembly, free speech, and petitioning the government for redress of wrongdoings) is an unnecessary and unwarranted violation of federal law and several articles of the Constitution.
Again, duh. Any idiot could have told Bush that. Instead, Bush chose to listen only to those idiots who were telling him what he wanted to hear, to wit that he could spy on anybody he wanted and to hell with probable cause, warrants, due process of law, or the Constitution--don't'cha know there's a war on?
There's a very big wrinkle with the Total Surveillance Program however. And, of course, the Shrubbery has failed either to notice the wrinkle or to do anything substantive about ironing it out of existence. The problem is that the NSA, in pursuance of the preznit's orders, has been gulping down probably terabytes of data on a daily or weekly basis. A terabyte, in case you're not familiar with the term, is 1012 bytes of information--or roughly the same amount of information as the text of every book at present held in the collections of the Library of Congress. In layman's terms, that's several shitloads of information.
Being a secret agency, of course it is impossible to find out how many people the NSA actually employs. Being a secret agency, on the other hand, it is highly unlikely that the number of NSA employees exceeds several thousand at best. Of course they have complicated software algorithms and oodles of ultra-fast computers combing through those piles of information coming in--but there's still no substitute for actual human beings. Intelligence operations are by definition vital to national security: every strategist since the days of Sun Tzu has ignored that precept to his and his nation's peril. Any rational intelligence director, therefore, would naturally want to control the flow of information coming into his pipeline, so that the important stuff doesn't get lost in the clutter. The Bushoviki, of course, don't give two shits for rationality, and none of them has ever successfully managed anything more complicated than a fraternity kegger without expert help--and rich or influential parents to pull their adolescent chestnuts out of the fire on more than one occasion.
The smart thing for the Bushoviki to do, therefore, would be to let the judge's ruling stand and to cease and desist forthwith any and all activities pertaining to the Total Surveillance Program. Which, of course, means that they will do no such thing--and they are, in fact, going to do the opposite. They seem to think that other federal courts will continue to osculate their perineums, and that the Supreme Court will ultimately whitewash the whole mess. I am not so sure, especially after a few more federal judges get done reading Judge Diggs Taylor's opinion of yesterday.
The judge has very clearly done her homework. Her opinion is tightly reasoned, disposes of most of the government's attempts to forestall judicial scrutiny with blistering exactitude, and she is quite clearly not intimidated by the biggest guns at the Justice Department. The wingnut fringe, of course, is already bleating in unison that the judge is biased because (a) she's black, (b) she's a woman, and wimmin just don't understand national security, or (c) she was appointed by that evil librul, Jimmy Carter. Some of the wingnuttiest among them are already calling Judge Diggs Taylor insane or, worse, a traitor, for daring to impugn the motives of the Dear Leader and thus giving aid and comfort to our nebulous terrrist enemies.
If the mouth-breathers at Little Green Snotballs and similar places had three brain cells between them to rub together, they would all be on their knees giving thanks for judges exactly of the calibre and stamp of Diggs Taylor. The salient principle they fail to understand is that once they invest the executive branch with this holy and wholly unassailable power to spy on whomever it wishes in the name of the Great War on Terra, they could themselves very easily become the next set of victims. Martin Luther King, Jr., wasn't just flapping his jaws in his Letter from the Birmingham Jail when he observed that "Injustice anywhere is a threat to justice everywhere." Today, it's the "rag-heads" and "islamojihadifascists" (or whatever the wingnuts' term of art for Muslims happens to be this week) that NSA is most interested in. Tomorrow, it could very easily be people who own more than one gun, or anybody who's ever subscribed to a "white pride" magazine or listserv, or every member of Focus on the Family.
I could almost wish the wingnuts got their wish to have all-but-dictatorial powers of surveillance granted to the president--just to watch their pointy little heads exploding one by one as they realized they were being hoist upon their own petards. Almost. But not quite.
Fortunately for them, Judge Diggs Taylor's opinion subsequently drops the knife and drives home her point about the poisonous nature of the preznit's favorite "unitary executive" theory of government with a howitzer. We pick up her thread on page 34, discussing Justice Jackson's concurring opinion in Youngstown Sheet & Tube v. Sawyer (343 U.S. 579, 1952):
...although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress. Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it [sic] maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers. ...But "when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the matter."
After several more deliciously devastating paragraphs from Jackson's concurrence in Youngstown, Diggs Taylor brings home the bacon in the instant case by stating, baldly:
In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.
Then, in a delicious bit of irony, she hauls out that most beloved of all Supreme Court cases among the wingnuts, Clinton v. Jones. In other words, Mr. Bush, Mr. Cheney, Mr. Gonzalez, Ms. Rice, et aliae, bend over and grab your ankles, because you're about to receive that which you have gleefully inflicted upon so many others for lo!, these many years. All your fan-dancing about executive privilege and state secrets will avail you not when you come into court--as you undoubtedly will, many, many times in the few hundred days left to you at the helm of this formerly great nation.
But it is in her peroration, Section IX of the opinion, that Diggs Taylor brings out the thermonuclear weapons and reduces the government's case to a puddle of radioactive glaze. It merits quotation in full (citations and other extraneous matter omitted; see pp. 40-41 of the opinion):
Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.
The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he "will, to the best of my ability, preserve, protect and defend the Constitution of the United States."
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 powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.
We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch's actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same "inherent powers" argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the "Constitution of the United States is a law for rulers and people, equally in war and in peace. . . ." ...Again, in Home Building & Loan Ass'n v. Blaisdell, we were taught that no emergency can create power.
Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been violated by the Executive’s TSP. As the court states in Falvey, even where statutes are not explicit, the requirements of the Fourth Amendment must still be met. And of course, the Zweibon opinion of Judge Skelly Wright plainly states that although many cases hold that the President's power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements.
The argument that inherent powers justify the program here in litigation must fail.
That whimpering scream you just heard was the
Wicked Witch of the West unitary executive theory of government as promulgated by the Bushoviki melting into a few puffs of greasy smoke and an empty judicial robe, courtesy of the limpid waters of constitutional precedent poured over it by Judge Anna Diggs Taylor, God bless her and keep her from harm.