While on vacation, I read the news that a federal judge in Detroit had found that Bush did not have the authority under FISA or the U. S. Constitution to order warrantless eavesdropping on American citizens, but it was only today that I downloaded a copy of ACLU v. NSA from the district court site and read through it.

It seems clear to me that the Department of Justice came into this case believing that it could rely on the national security privilege to have the case dismissed. The technique had worked many times in the past, as Judge Taylor pointed out in her 44-page opinion. There was a big difference in this case, however: the administration had already admitted that it had spied on American citizens without authorization from the FISA court, and therefore the necessary elements of the plaintiffs' case were not state secrets. Having admitted that it engaged in the proscribed actions, it was forced to rely upon the president's "inherent" powers. As the court put it, "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."

When the issue is put that way, the obvious answer is "no," and, sure enough, the judge made short shrift of that argument:

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.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866).Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

FISA provides criminal penalties for violations. It now appears that Bush has, by admitting he eavesdropped on American citizens in violation of the act and further by announcing that he planned to continue doing so, confessed his criminality.

The question now is whether anything will be done about it.