"To what purpose are powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803

Thursday, July 03, 2008

So much for the emperor king.

A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.

The judge, Vaughn R. Walker, the chief judge for the Northern District of California, made his findings in a ruling on a lawsuit brought by an Oregon charity. The group says it has evidence of an illegal wiretap used against it by the National Security Agency under the secret surveillance program established by President Bush after the terrorist attacks of Sept. 11, 2001.

The Justice Department has tried for more than two years to kill the lawsuit, saying any surveillance of the charity or other entities was a “state secret” and citing the president’s constitutional power as commander in chief to order wiretaps without a warrant from a court under the agency’s program.

But Judge Walker, who was appointed to the bench by former President George Bush, rejected those central claims in his 56-page ruling. He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.

“Congress appears clearly to have intended to — and did — establish the exclusive means for foreign intelligence activities to be conducted,” the judge wrote. “Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

I’m a conservative.  I’ve spent most of my life wailing about the courts, who usually expand state power at the expense of liberty.  But lately I’ve come to value the courts, as they’ve been the lone bulwark against the administration’s blatantly unconstitutional power grab.  Congress was clearly unwilling to do anything about it, so it’s fallen to the guys in the black robes.  Good for them.

It’s a pretty sad day for small-government conservatives when we have to pin all our hopes on the courts to protect us from a massive power grab by people who claim to be small-government conservatives.  Thank God President Obama isn’t going to assume these same warrantless wiretapping powers.