"There are no hereditary kings in America"

By Nancy Jane Moore

"[T]he public interest is clear, in this matter. It is the upholding of our Constitution." So says federal Judge Anna Diggs Taylor in her ruling that the federal government's telephone surveillance program was unconstitutional. She ends her opinion with a quote from a ruling by the late Chief Justice Earl Warren in a 1967 case, U.S. v. Robel:

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 make[] the defense of the Nation worthwhile.

Judge Taylor didn't just issue a permanent injunction that prevents the government from conducting its program of eavesdropping without warrants on international telephone and internet communications made by people in the US. And she didn't just rule that the program violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the Foreign Intelligence Surveillance Act, and Title III of the 1968 Crime Control Act. She also said it would violate the core principles of our nation if the federal government was allowed to trample over civil rights in its supposed defense of the country.

The judge completely rejected the government's argument that the president, as "Commander in Chief," has the "inherent authority" to violate the Constitution and the laws of this country:

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.

The Washington Post has comments from the ACLU, which brought the suit. The New York Times notes that the government is expected to seek a stay of Judge Taylor's injunction while the ruling is appealed.

Other federal courts have addressed this issue recently. Judge Vaughn Walker ruled in July that the government couldn't use the state secrets privilege to get out of a suit against it and AT&T brought by the Electronic Frontier Foundation over programs to intercept and review telephone calls. While a federal judge in Chicago upheld the state secrets privilege in a similar suit in federal court there, all suits dealing with that program have now been consolidated before Judge Walker. His ruling is on appeal to the Ninth Circuit.

The plaintiffs in the suit in Judge Taylor's court are scholars, journalists, and lawyers who frequently need to communicate with persons in other countries for purposes of their work. She found they had standing to sue and had been damaged by the government's actions, and she concluded the state secrets act didn't apply because the government had acknowledged the existence of the program.

However, she did dismiss "data mining" claims, finding that the plaintiffs could not prove the existence of such a program without using classified material.

I'm sure the right wingers are already calling Judge Taylor an "activist judge." If upholding our Constitution is an act of "activism," we could use a whole lot more of it.