On Dec. 16, 2005, New YorkTimes reporters James Risen and Eric Lichtblau broke a front-page story, “Bush Lets U.S. Spy on Callers Without Courts,” that won them a Pulitzer Prize for National Reporting ? and an investigation by the Justice Department for possible unlawful releasing of classified information that may ultimately include charges of violating the 1917 Espionage Act. (The president had urged the Times not to publish the story, and condemned its appearance.) Now, in a 43-page decision in a lawsuit brought by the American Civil Liberties Union, Anna Diggs Taylor, an alumna of the civil rights movement and the first black judge to sit on that Michigan federal court, has greatly intensified the fierce national debate ? in and out of Congress ? caused by the Times? adherence to James Madison?s message to insure the future of the Constitution: “The censorial power is in the people over the Government ? and not in the Government over the people.”
The Justice Department had instructed Judge Taylor to not even hear the case on whether the president had allowed the National Security Agency to spy on Americans as well as suspected terrorists overseas?without first going to the secret court established by the Foreign Intelligence Surveillance Act in 1978 to exercise judicial oversight over this kind of operation. “State secrets are involved,” Taylor was told. The case must be dismissed.
But since the administration?s repeated defenses of this spying program?following the New York Times story and the subsequent disclosures by other reporters?have undercut the “state secrets” argument, Taylor went ahead. She concluded that the president had violated the Foreign Intelligence Surveillance Act, the separation of powers and the Fourth Amendment privacy protections of Americans.
Not only did the president violate a statute but he also, the judge added, “blatantly disregarded the parameters clearly enumerated in the Bill of Rights” (very much including the Fourth Amendment). As for the constant claim by the president, Dick Cheney and Alberto Gonzales that, as commander in chief, George W. Bush has the “inherent constitutional power” to conduct the war on terrorism unilaterally when necessary, Judge Taylor said ? and I hope future schoolbooks will include this definition of Americanism: “There are no hereditary Kings in America and no powers not created by the Constitution. So all ?inherent? powers must derive from that Constitution.”
What makes this regeneration of the powers of Constitution all the more important, even if her ruling is overruled by the Sixth Circuit Court of Appeals on its inevitable way to the Supreme Court, is that Taylor represents the awakening, at last, of more of the judiciary to its crucial responsibility to respect ? and act ? on the separation of powers.
In June, the Supreme Court itself unambiguously told the president he had acted outside the law in establishing the sham military commissions at Guantanamo ? and has violated the Geneva Conventions and our own 1996 War Crimes Act in our abusive and, I would add, sometimes fatal, treatment of suspected terrorist prisoners wherever we hold them.
Then, this year, when the Electronic Frontier Foundation filed a lawsuit against AT&T for handing over to the omnivorous, Bush-protected National Security Agency “secret direct access to phone calls and e-mail detailing the activities of millions of ordinary Americans,” the federal district judge in that case ? Vaughn Walker in San Francisco ? was also warned by the Justice Department to dismiss the case without hearing it because of “state secrets.”
While the unintimidated Judge Anna Diggs Taylor in Detroit has had her ruling questioned because she was appointed by a Democrat, Jimmy Carter, Judge Vaughn Walker was put on the bench by George W. Bush?s father, and is regarded as a conservative by the legal community in California.
As the California First Amendment Coalition reported, the Justice Department had even sent Judge Walker in San Francisco “super-classified documents … transported under armed guard to California” to persuade him to dismiss the case summarily.
The judge read them, and like Taylor in Detroit, refused to be intimidated, and the case proceeded. The furor created by Taylor?s confronting the president with the Constitution he swore to uphold has quickened the Justice Department?s eagerness to get Congress to pass a bill by Republican Sen. Arlen Specter, chairman of the Judiciary Committee, before the midterm elections in case Republican control of the Senate winds up in jeopardy.
Attorney General Gonzales believes Specter?s legislation “would address some of the concerns raised by the judge in her opinion.”
Nat Hentoff writes a weekly column for the Village Voice and writes on music for The Wall Street Journal.
