Who can forget the chutzpah of President George
W. Bush as he bragged to Bob Woodward, "I'm commander in chief.... That's the
interesting thing about being president ... I don't feel like I owe anybody
Wrong, Mr. President. You and Vice President Cheney seem to have missed "Constitution
101." And you seem to have laughed off admonitions against hiring lawyers eager
to give an obsequious nihil obstat to whatever you want to do. You have
allowed the likes of David Addington, Alberto Gonzales, and John Yoo to do what
Senator Chuck Hagel (R-Nebraska) has accused you and your advisers of doing
regarding Iraq – "making it up as they go along." It's enough to make you
believe Shakespeare may have been right about lawyers.
Mr. President, you can't just keep making things up – things like "unitary
executive," and "unlawful combatant," and "military tribunals" and "enhanced
interrogation techniques." You cannot make-believe them into law. These quasi-legal
constructs are bound to come back to roost. The US Constitution is not just
another piece of paper. Indeed, it seems to be getting a new lease on life these
days. Now you and your lawyers have run into a tough judge who takes the Constitution
very seriously indeed and shows no sign of bending with the prevailing winds.
Yesterday's ruling by Judge Anna Diggs Taylor of the US District Court in Detroit
against warrantless eavesdropping did not beat around the bush, so to speak.
Her strong words would, I imagine, have brought broad smiles to the faces of
those who crafted the Constitution – despite the irony that, in that sad
time of racial exclusion, they would not have thought to include Judge Taylor
in "We, the people."
The power and simplicity of her words brought immediately to mind another distinguished
African-American woman and jurist who rose to the occasion a generation ago
during the impeachment proceedings against President Richard Nixon. A member
of the House Judiciary Committee that approved articles of impeachment against
a president she described as "swollen with power and grown tyrannical," Congressman
Barbara Jordan (D-Texas) addressed her colleagues:
"My faith in the Constitution is whole; it is complete; it is total.
I am not going to sit here and be an idle spectator to the diminution, the subversion,
the destruction of the Constitution.... The Constitution charges the president
with the task of taking care that the laws be faithfully executed."
Yesterday, Judge Anna Diggs Taylor's unminced words resonated with those sentiments
– and some righteous anger. She ruled that Bush's eavesdropping program
is "obviously in violation of the Fourth Amendment" as well as the 1978 Foreign
Intelligence Surveillance Act (FISA), which expressly forbids eavesdropping
on Americans without a court warrant. She gave short shrift to the White House
argument that the president's powers as commander in chief of the armed services
in time of war enable him to disregard this and other laws. The administration's
painfully stretched contention that the post-9/11 Congressional authorization
of force somehow gave the president the authority to disregard FISA was also
Eight months have gone by since James Risen's exposé of the eavesdropping
program appeared in the New York Times, so we would do well to call up
some key facts – especially since demagoguery and posturing is again in
full swing. Congressman Peter Hoekstra (R-Michigan) castigated Judge Taylor
yesterday for "taking it upon herself to disarm America during a time of war."
(Hoekstra is chair of the House Intelligence Committee charged with overseeing
(overlooking?) NSA and other programs.) Speaker Dennis Hastert (R-Illinois)
spiced things up, claiming that the eavesdropping program "saved the day by
foiling the London terror plot."
Lost in the underbrush is the reality that the architecture of FISA was shaped
not only to protect the privacy of Americans but also to give the White House
considerable latitude in pursuing urgent opportunities. For example, the executive
branch is permitted to eavesdrop on conversations for three days without having
to seek a warrant from the FISA court. And, when sought, warrants have been
When questioned about the legality of President Bush's eavesdropping program
on May 8, the widely respected Admiral Bobby Ray Inman, who was director of
the National Security Agency (NSA) when the FISA law was passed (and later deputy
director of the CIA), said:
"There clearly was a line in the FISA statutes which says you couldn't
do this ... There was even an extra sentence put in the bill that said, 'You
can't do anything that is not authorized by this bill.'"
Inman criticized the decision not to go to Congress to revise the statute,
if the administration decided it needed to amend it to deal with issues not
anticipated in 1978.
What seems to have escaped notice is that the White House did take soundings
in Congress. This has been known since December 19, 2005, when Attorney General
Alberto Gonzales was asked by the press why the administration did not seek
new legislation to enable it to conduct such a program legally – Why the
"backdoor approach?" In an unguarded moment, Gonzales tied himself in knots
trying to have it both ways:
"This is not a backdoor approach. We believe Congress has authorized
this kind of surveillance. We have had discussions with Congress in the past
– certain members of Congress – as to whether or not FISA could be
amended to allow us to adequately deal with this kind of threat, and we were
advised that that would be difficult, if not impossible."
Strange. If you believe you already have Congressional authorization, why sound
out members of Congress on the prospects for obtaining authorization? Besides,
deliberations on this issue took place in the immediate post-9/11 atmosphere
in which the draconian PATRIOT Act sailed through Congress. Surely the way would
have been clear for any reasonable proposal to amend the already flexible FISA.
As James Risen has quipped, "In October 2001 you could have set up guillotines
on the public streets of America."
It is hard to escape the conclusion that the eavesdropping program (since dubbed
the "Terrorist Surveillance Program") was of such scope and intrusiveness into
our Constitutional rights that it stood no chance of being approved even in
the immediate post-9/11 atmosphere.
So Who Cares?
Administration leaders keep telling us that the
"Terrorist Surveillance Program" is necessary to intercept communications between
al-Qaeda terrorists and Americans who might be in cahoots with them. Details
about the program are denied even our elected representatives in Congress. And
with the fear factor periodically stoked, most Americans go along. How many
of your friends have told you, "I don't care if my telephone calls are monitored;
I'm not talking to al-Qaeda." This attitude is reminiscent of obedient German
citizens who acquiesced during an analogous time.
On February 27, 1933, four weeks after Hitler was sworn in as Chancellor, the
Reichstag building, Germany's parliament, was destroyed in a fire. Hitler took
full advantage of this 9/11-like calamity to whip up fear of "terrorists" –
in this case, Communist terrorists – and to impose legislation curtailing
the rights of German citizens. The Germans, by and large, acquiesced.
Hitler: A Memoir, Sebastian Haffner provides an eyewitness account of
those days in Berlin:
"With sheepish submissiveness the German people accepted that, as a
result of the fire, each one of them lost what little personal freedom and dignity
was guaranteed by the constitution; as though it followed as a necessary consequence....
more than one [of my colleagues] hinted that they had doubts about the official
version; but none of them saw anything out of the ordinary in the fact that,
from now on, one's telephone would be tapped, one's letters opened, and one's
desk might be broken into." (pp 121-122)
Déjà vu? At 73, Judge Anna Diggs Taylor is old enough to remember. And she
is certainly old enough to have lived through the indignities suffered by Dr.
Martin Luther King Jr. and so many others at the hands of the wiretapping-happy
head of the FBI, J. Edgar Hoover – an inadvertent catalyst for the FISA
legislation. In other words, Judge Taylor clearly has a firm grasp of the burgeoning
danger to our liberties in these times and the need for scrupulous adherence
to the rule of law – a grasp akin to that of the framers of the Constitution.
This is a good thing. One can only hope and pray that her colleagues on the
bench will display equal integrity and steadfastness.