American Big man Part X

So a judge has ruled what should be the obvious: The wiretapping as conducted by the government is illegal. The judges reasoning echo's the arguments I have presented in the American Big Man series. noteably:

AUMF does not directly give or imply that the President may wiretap US Persons without following Title III, the FISA statute or the 4th Amendment. The opinion also adds that there is nothing in the AUMF that appears to included wiretaps as "force", an argument I didn't even think of at the time.

The US Constitution grants the president the authority to circumvent the 4th Amendment, and the FISA court represents the minimum standard by which US Persons can be tapped.

The "State's Secrets" argument is null and void since the president and other administration members had already publicly stated what they were doing and that they had bypassed the FISA court.

The President cannot legislate nor can he decide which laws he wishes to comply with. It is congress that passes laws and the president either vetoes or approves of them. Once the law is on the books the president is constitutionally bound to uphold and follow them. By deciding on his own to bypass the FISA court, the president is effectively "legislating". I hadn't thought of this particular angle but I think it was good that the judge took the time to enumerate the office and powers of the President and the Congress. She also pointed out that the president had ample time and opportunity to approach the Congress to have FISA amended (something I think should NOT happen), but failed to do so.

The only real weakness I see in the decision is the standing of the plaintiffs to bring the suit. Had the justice department not been in the pocket of the administration they would have been able to bring charges against the president themselves once he admitted in public to breaking the law. Because of the refusal of the Justice Department to do it's job this group had to file this suit. I expect that this decision will be appealed and I do hope that it goes to the Supreme Court.

Technorati Tags: governance, politics, privacy, US Constitution