By Dan Froomkin
Special to washingtonpost.com
Friday, August 18, 2006; 12:56 PM
It's not just virulent Bush-haters who think the president has been acting like he's the king -- increasingly, it's also the judicial branch.
Yesterday's rebuke of the White House's assertion of nearly unlimited executive power in a time of war came from U.S. District Judge Anna Diggs Taylor, who struck down President Bush's warrantless domestic surveillance program as both illegal and unconstitutional.
That, of course, comes hard on the heels of the June 29 Supreme Court decision that struck down Bush's tribunals for terror suspects and reasserted the nation's adherence to the Geneva Conventions.
Yesterday's decision is at a much lower judicial level. The ruling is on hold for now, and the White House is adamant that it will succeed in getting it reversed.
But the idea that there is something fundamentally un-American about some of the basic underpinnings of Bush's war on terror is certainly gaining ground.
Here's the text of the ruling, which includes the following primer on the Constitution:
"Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.
"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, 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.'
"The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
"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."
Asked to respond to the suggestion that he had ignored constitutional limits on his executive power, Bush had this to say from Camp David this morning: "Those who herald this decision simply do not understand the nature of the world in which we live."
The official White House response yesterday was blistering: "Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people. Today a federal judge in Michigan has ruled that the Terrorist Surveillance Program ordered by the President to detect and prevent terrorist attacks against the American people is unconstitutional and otherwise illegal. We couldn't disagree more with this ruling. . . .
"United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives. The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government, and it is the President's most solemn duty to ensure their protection."
But can the White House support its implication that the domestic surveillance program had something to do with foiling the alleged British terror plot? And can it back up the assertion that the program has saved American lives? I doubt it.
And here's a statement from the ACLU , which brought the case. ACLU Associate Legal Director Ann Beeson says: "Throwing out the Constitution will not make Americans any safer."
Administration supporters were quick to attack Taylor -- not just professionally, but personally. And yet her ruling in many ways echoes the earlier writing of former Supreme Court Justice Sandra Day O'Connor.
In a 2004 Supreme Court decision on presidential power, O'Connor wrote for the majority at the time: "A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."The Coverage
Bob Egelko writes in the San Francisco Chronicle: "A federal judge's emphatic rejection Thursday of the Bush administration's warrantless wiretapping of calls between Americans and alleged foreign terrorists is far from the last word on the legality of the program, which most likely will be determined by the Supreme Court or Congress.
"But the ruling by U.S. District Judge Anna Diggs Taylor of Detroit is one of a mounting series of judicial rebuffs of President Bush's claim of virtually absolute authority, as the leader of the nation's battle against terrorism, to redraw the boundaries between government power and individual rights."
Adam Liptak and Eric Lichtblau write in the New York Times: "In a sweeping decision that drew on history, the constitutional separation of powers and the Bill of Rights, Judge Anna Diggs Taylor of United States District Court in Detroit rejected almost every administration argument.
"Judge Taylor ruled that the program violated both the Fourth Amendment and a 1978 law that requires warrants from a secret court for intelligence wiretaps involving people in the United States. She rejected the administration's repeated assertions that a 2001 Congressional authorization and the president's constitutional authority allowed the program."
Dan Eggen and Dafna Linzer write in The Washington Post: "The ruling is the latest courtroom setback for the Bush administration's controversial anti-terrorism and detention policies, which have frequently relied on broad assertions of presidential power. In a landmark case in June, the Supreme Court rejected Bush's claims of executive power, ruling 5 to 3 that special military trials for terrorism suspects were not authorized under federal law and ran afoul of the Geneva Conventions.
"The decision yesterday could complicate efforts by the White House and Sen. Arlen Specter (R-Pa.) to win approval for a bill that would allow, but not require, Bush to submit the NSA program to a secret court for legal review. . . .
"Experts in national security law argued, however, that Taylor offered meager support for her findings on separation of powers and other key issues."
Brian Bennett and Timothy J. Burger write for Time: "House intelligence committee chairman Peter Hoekstra, a Michigan Republican, led the Republican charge against Taylor's ruling. 'It is disappointing that a judge would take it upon herself to disarm America during a time of war,' Hoekstra said, an unusually strong criticism of a sitting federal judge by a congressman."Editorial Watch
The New York Times writes that "with a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them."
The Los Angeles Times writes: "In the latest judicial rebuke of the Bush administration's tactics against terrorism, a federal judge in Detroit ruled Thursday that warrantless wiretapping of U.S. citizens violates the Constitution and federal law. The decision is an embarrassment for President Bush, but it also should be a source of shame for Congress."
USA Today writes: "For the past five years, the Bush administration has operated as if the horrific events of 9/11 not only changed fundamental aspects of national security and public safety, but also changed the very nature of government.
"President Bush has unilaterally declared what parts of new laws he wishes to enforce. He has created military tribunals unauthorized by Congress. And, perhaps most ominously, he has authorized eavesdropping on phone calls to and from the USA without court orders.
"Bush has done these things by simply asserting that the powers of the presidency enumerated in Article II of the Constitution -- particularly the clause making him the "Commander in Chief of the Army and Navy" -- are much more sweeping than previously imagined. In short, he has acted like a king.
"Fortunately, the courts have begun to rein in his royal ambitions."
Nevertheless, the White House was able to point the media toward two favorable editorials this morning.
The Wall Street Journal writes: "In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death. . . .
"Unlike Judge Taylor, Presidents are accountable to the voters for their war-making decisions, as the current White House occupant has discovered. Judge Taylor can write her opinion and pose for the cameras--and no one can hold her accountable for any Americans who might die as a result."
And The Washington Post writes: "The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful."Blogging Lawyers
Jack M. Balkin blogs: "Although the court reaches the right result-- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused."
Marty Lederman wonders why the New York Times placed so much emphasis on the fact that Taylor supported Jimmy Carter, worked in the civil rights movement, and is black.
Glenn Greenwald writes in Salon: "It is important to be clear about what this decision means and what it does not mean -- particularly since the White House, among others, is already depicting this ruling as some sort of epic blow to the administration's efforts to fight terrorism. This ruling does not, of course, prohibit eavesdropping on terrorists; it merely prohibits illegal eavesdropping in violation of FISA."More Reaction
CNN's Jack Cafferty just about blew his top: "So what does this mean? It means President Bush violated his oath of office, among other things, when he swore to uphold the Constitution of the United States. . . . And it means a 75-year-old black female judge in Michigan has finally stepped in and done the job that Congress is supposed to do, namely oversight of the executive branch of government. . . .
"I hope it means the arrogant inner circle at 1600 Pennsylvania Avenue may finally have to start answering to the people who own that address -- that would be us -- about how they conduct our country's affairs."
Kenneth R. Bazinet writes in the New York Daily News: " 'This is a bad situation that just got worse for the White House,' said George Washington University scholar Jonathan Turley.
" 'These crimes could constitute impeachable offenses,' said Turley, who was an ally to independent counsel Kenneth Starr during the probe that led to the impeachment of President Bill Clinton."Signing Statement Watch
Bush issued another of his controversial signing statements yesterday, after the public ceremony for the pension bill.
Here's the text :
"Today I have signed into law H.R. 4 , the 'Pension Protection Act of 2006.' . . .
"The executive branch shall construe sections 221(a) and 1632(b)(1) of the Act, which call for the submission of legislative recommendations to the Congress, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as the President shall judge necessary and expedient. . . .
"Section 1634(e) purports to require the United States Trade Representative to submit to congressional committees the contents of the negotiating positions of the United States and foreign countries in certain international trade negotiations. The executive branch shall construe section 1634(e) in a manner consistent with the President's constitutional authority to conduct the Nation's foreign affairs including negotiations with foreign countries, supervise the unitary executive branch, and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."
So does that mean Bush won't comply with the law? Or he'll do it, but with the stipulation that it's voluntary? And if he doesn't intend to follow the law, why didn't he just veto it?
Those are questions you might well expect the press to ask, especially since the White House actually e-mailed the statement to reporters yesterday afternoon.
But alas, no. There is not a single mention, or question, about the statement in today's coverage, as far as I could tell.
And the major blogs were silent, too. The one exception: Ed Whelan writes on his National Review blog: "I am pleased to report that the White House gave the [American Bar Association's] foolish resolutions on signing statements the full weight they deserved: zero."
Peter Baker writes in The Washington Post about the public event: "With Democrats accusing the Republican majority of running a 'Do Nothing Congress,' Bush and his allies were eager to showcase the bipartisan pension effort and flew lawmakers back from summer recess to stand behind him at a signing ceremony."
And in front of the cameras, Bush indicated that he intends to revisit the Social Security and Medicare programs. Here's the transcript : "Now is the time to move; now is the time to do our duty. I'm going to continue to work with the Congress and call on the Congress to work with the administration to reform these programs so we can ensure a secure retirement for all Americans."Briefing Follies
At yesterday's press briefing , spokesman Tony Snow anticipated reporters' questions about a startling assertion reported in the New York Times.
Michael R. Gordon, Mark Mazzetti and Thom Shanker wrote that "some outside experts who have recently visited the White House said Bush administration officials were beginning to plan for the possibility that Iraq's democratically elected government might not survive.
" 'Senior administration officials have acknowledged to me that they are considering alternatives other than democracy,' said one military affairs expert who received an Iraq briefing at the White House last month and agreed to speak only on condition of anonymity."
Snow's response: "There were reports that an unnamed military expert had received briefings at the White House that we are continuing alternatives other than democracy in Iraq. It's just not true."
And that was that.
Snow then addressed the article's main point: "The article does note, however, that there has been increased violence in Iraq in recent months, and that is absolutely true."
And that, he did expound upon. For, instance, he insisted: "No major political figure in Iraq has described the situation as a civil war or advocated one."
And yet back in March, on the BBC , Iraq's former interim prime minister, Iyad Allawi, had this to say: "It is unfortunate that we are in civil war. We are losing each day as an average 50 to 60 people throughout the country, if not more.
"If this is not civil war, then God knows what civil war is."On Lebanon
Snow's spin on Lebanon did not seem to play well with the press corps.
He insisted that Hezbollah will have to disarm because the Lebanese people are turning against them: "Now what's going to happen, I think, is it will -- Hezbollah will be forced into making a choice, because I think people in Lebanon kind of get it. I mean, they understand that many of those areas have been laid to waste because Hezbollah committed an act of war. They understand that Hezbollah -- I'm sorry, I'll let you -- you can interrupt when I'm done with this. But they understand the deep cynicism of Hezbollah, which didn't do this as an act of liberation for the people or Lebanon; it wasn't designed in any way, shape, or form to improve the life of the Lebanese people. . . .
"Q But many people on the ground in Lebanon do not view Hezbollah in those terms. . . .
"MR. SNOW: You know, a lot of people do. I mean, I don't know which people on the ground. Again, it's very difficult to assess. The conventional wisdom is that Hezbollah is suddenly popular. . . .
"Q . . . . There is no indication that, in fact, the Lebanese government is going to force Hezbollah to give up its arms. Your preemptive statement this morning seems based on the belief that they should, and that the interests of the people will force it. But there's nothing on the ground and nothing in past history to suggest that that would ever be the case."Not Exactly Encouraging
And Snow was not exactly forthcoming -- or encouraging -- in response to this question:
"Q Tony, you mentioned, the obvious ultimate goal of getting mission accomplished. When is that going to happen?
"MR. SNOW: You tell me. I mean, again -- as I've also said, you don't do this by a clock. The President has practiced strategic patience. The term 'The Long War' has been used. If you can tell me when terrorists are suddenly going to turn their swords into plowshares, we'll settle upon that as the date."Poll Watch
The Pew Research Center for the People & the Press has more grim numbers for the White House: "President Bush's job approval rating stands at 37%, virtually unchanged from July. His personal image continues to be far less positive than it was about a year ago. . . . Moreover, the renewed emphasis on terrorism has done little to boost the president's standing on that issue. The survey, which was largely conducted after the Aug. 10 revelations of the terror plot against airliners, shows that 50% approve of the president's handling of terrorist threats, little changed from June (47%)."
The public remains determined (by a 52 to 41 percent margin) that Bush should adopt a timetable for withdrawing troops from Iraq, even as they get more and more negative in their assessment of the current situation.
And by a 52-41 margin, more Americans say Bush is not trustworthy than say he is trustworthy. Similar margins feel he is not able to get things done, not a strong leader, and "doesn't care about people like me".
Here are the complete results .Kaplan Speaks
Kenneth T. Walsh of U.S. News interviews White House Deputy Chief of Staff Joel Kaplan, who recently took over as Bush's main coordinator of policy development from Karl Rove. Walsh asks how new ideas are generated in the administration.
Says Kaplan: "The president is very engaged in most policy issues. He's an extremely aggressive questioner when you come in to him. . . . We have policy time reserved on the president's calendar basically every day that he is in town. . . . If you're on the hook for policy time, you know you'd better have your answers down because President Bush will go right to the heart of the issue. He'll ask you the difficult question, the one question you didn't come up with the answer for. He's just an extremely engaged decisionmaker on policy matters."
Kaplan seems to share Rove's ability to make just about anything look like a big win for the president.
"It's true that there are some problems that we know we need to address, and they're not new problems--the president's been talking about them. Entitlement reform, I think, is a prime example of that. The president spent a lot of time and energy educating the American public and members of Congress about the magnitude of the problem we face in Social Security. We didn't get that done the first time through, but we did make a lot of progress, I think, in changing the debate. The president was very successful in, I think, communicating that this is a problem we're going to have to solve, and he's committed to continue to work on it, and he's going to continue to work on it with Congress."Froomkin on the Radio
I'll be on Washington Post Radio today a little after 2 p.m. If you're not in the D.C. area, you can listen online . It's a great opportunity to ask me questions, by the way. Call toll-free right at 2, at 1-877-POST-1077, or e-mail the radio station at email@example.com .Strike That
Al Kamen writes in The Washington Post that, as a cost-cutting move, the Bureau of Alcohol, Tobacco, Firearms and Explosives is no longer planning on engraving words from Bush's speech before a Joint Session of Congress on Sept. 20, 2001 on its entryway.Briefing Room Follies
Patrick Gavin of FishbowlDC has photos of the press's new digs.Online Humor
Here is Walt Handelsman 's animated cartoon on NSA wiretapping, from Newsday.What's the Word?
Here's the front page of the British newspaper the Independent this morning. Banner headline: "Labour agrees: Bush is crap."