Financial Cryptography

Slapdown - US Court rules against Bush wiretaps

Chris points to the Court of the Honourable Anna Diggs Taylor, representing the third branch of power in the USA. Justice A. D. Taylor rules the telephone wire tapping programs out of order. That is, illegal.

In summary, she knocked out the "states secrets" defence because all the information needed was already public, and she granted a permanent injunction based on breaches of the law -- FISA -- and the US constitution and US bill of rights.

As the case has some bearing on the recent SWIFT breach by US Treasury (probably conducted under the same novel theories inside or outside the law), we present some snippets from Case No. 06-CV-10204:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

....In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year
period. ...

VII. The Separation of Powers

The Constitution of the United States provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . .”43 It further provides that “[t]he executive Power shall be vested in a President of the United States of America.”44 And that “. . . he shall take care that the laws be faithfully executed . . . .”45

.... Justice O’Connor concluded that such a citizen must be given Fifth Amendment rights to contest his classification, including notice and the opportunity to be heard by a neutral
decisionmaker. (citation) Accordingly, [Justice O’Connor's] holding was that the Bill of Rights of the United States Constitution must be applied despite authority granted by the AUMF.

She stated that:

It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. **** Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. Hamdi, 542 U.S. at 532, 537.

Under Hamdi, accordingly, the Constitution of the United States must be followed.
...

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,49 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.”50

...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.54 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.55
The argument that inherent powers justify the program here in litigation must fail.

... Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.

IT IS SO ORDERED.

Date: August 17, 2006		s/Anna Diggs Taylor
Detroit, Michigan		ANNA DIGGS TAYLOR
		UNITED STATES DISTRICT JUDGE

Some caveats: we probably have to wait for the inevitable appeal, and we don't do law here, we just do FC. And here seems an appropriate moment to finish with Nick's observations on the wider scope:

There is a long-standing controversy about the idea of parliamentary supremacy -- the idea that legislative law trumps all other law. That is currently the dominant theory in England, but the United States holds a contrary view -- here judges review legislative laws against a prior and higher law: a written constitution (and perhaps also against natural law, but that is a subject we won't pursue here).

There will be multiple additional links to the precise case...

• Wired, blog.
• Naming the unnamable, "We have a problem, Houston," who blinks first? and who replaces President Bush?

Posted by iang at August 17, 2006 11:11 PM | TrackBack