Court Kicks Warrantless Surveillance In The Balls
“Plaintiffs have prevailed,” says a federal judge, “and the public interest is clear, in this matter. It is the upholding of our Constitution.” The program, according to the ruling (pdf) must be halted immediately (although that obviously will be appealed to the next court up), on the grounds that it violates the rights to free speech and privacy, as well as the Separation of Powers doctrine.
Addendum: The judge ruled that the government’s contention that FISA itself may be unconstitutional was “irrelevant” because even if it were, the Fourth Amendment still holds, and the program violates it, writing 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.”
Addendum: Also nixed was the government’s contention that the use of force resolution passed by Congress inherently authorized the program. She wrote that even if you construe the resolution as superceding FISA itself, the government has “violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine.”
Addendum: “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.”
Addendum: She uses similar phrasing elsewhere, in fact over and over again. “The President of the United States is himself created by that same Constitution,” she writes in a section about the Fourth Amendment. The point is clear: No president is above and beyond the very document which authorizes his office.
Addendum: The judge characterizes the goverment’s position on “inherent powers” thusly: “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.”
She continues: “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.”
Addendum: She gives over the very end of her ruling to a quote from Justice Warren: “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.”