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Mr. President, you just can't 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 faux-legal constructs are now coming home to roost.
Contrary to what you have been quoted as saying, the U.S. Constitution is not just another piece of paper. Indeed, it seems to be getting a new lease on life these days. This week you and your lawyers ran into a tough judge who takes the Constitution very seriously indeed and shows no sign of bending with the prevailing winds.
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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," Rep. 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."
Judge Anna Diggs Taylor's unminced words on Thursday 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 summarily rejected.
Eight months have gone by since James Risen's expose' 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. Rep. Peter Hoekstra (R, Michigan) immediately castigated Judge Taylor 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. Also on Thursday, Speaker Dennis Hastert (R, Illinois) spiced things up, claiming that the eavesdropping program "saved the day by foiling the London terror plot." (If that is true-"admittedly a big IF, given the administration's credibility record on such matters-"the Justice Department should go after Hastert immediately for gross violation of important laws against divulging sources and methods.)
On Friday, President Bush reverted to the administration's scripted response: "If al-Qaeda is calling in to the United States, we want to know why they're calling." Bush asserted that opponents of the warrantless eavesdropping program "do not understand the nature of the world in which we live." Striking the podium for emphasis, Bush added, "I strongly disagree with that decision."
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 time-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 virtually automatic.
Mr. FISA on FISA