On the eve of the November elections, the first judicial admonition of President Bush for warrantless wiretapping came from Anna Diggs Taylor, a woman federal judge nominated by Jim Carter. It raised the hackles of everyone, the Democrats, the Republicans, the GOP and the liberal media. The New York Times with ample reason to celebrate preferred to succumb to inertia. Last week, Taylor pronounced Bush administration’s eavesdropping programme as unconstitutional. It was a sequel to the New York Times publication of a surveillance story in December 2005 it sat over for a year. The nation’s liberal media twins, the Times and the Washington Post, badly let down their cause and constituency, the first by writing a vacuous editorial and the second by scribbling a focusless comment. In contrast, the Wall Street Journal and the New York Post, even while defending the wiretap, told their readers why the programme should continue.
Hours later, King George dismissed the ruling as wrong and went in for appeal, pending which the judgment was stayed. "Those who herald this decision simply do not understand the nature of the world in which we live," he told reporters. But the judge reminded him, "There are no hereditary Kings in America and no powers, not created by the Constitution." This is not the last word on the legality or otherwise of wiretap exercise, because cases relating to it are pending before three other courts. But the extraordinary powers Bush assumed without mandatory judicial sanction are going to be a major issue at the November elections, its outcome closely linked to future judicial pronouncements.
In the atmosphere of fear and siege he created after 9/11, Bush erased the line between law and license. That is when the American Civil Liberties Union stepped in to challenge his immunity from accountability. The ruling is "another nail in the coffin in the Bush administration`s legal strategy in the war on terror," said Anthony Romero, ACLU’s executive director. ACLU filed the suit representing journalists, scholars and lawyers who complained that the programme made it difficult for them to do their jobs and had a chilling effect on free speech. The Journal asked ACLU if their free-speech rights had been violated because al Qaeda types were now afraid to speak to them on the phone. "Perhaps the plaintiffs should have sued the New York Times, as it was that paper`s disclosure of the program that created the "chill" on "free speech" that Judge Taylor laments."
All this is full of sound and fury, thought the Washington Post. It was disappointed that the judgment was anything but serious, scholarly and hard-hitting. The Post directed its editorial ire against the judge, arguing that her opinion would not be helpful as a piece of judicial work. The Post found the argument of the Bush administration that the President had inherent powers to conduct surveillance on its own authority too serious to be dismissed in "scant few pages." These are complicated and difficult issues, the Post said. It is possible that the Post is angry with the judge because, in the words of a professor of political science at the Duke University, "Judge Taylor`s ruling has been criticized because it did not offer a full explanation for why the NSA`s warrantless eavesdropping is unconstitutional."
The New York Times surprisingly posted an editorial that read more like a news report than comment but for the last paragraph which said, "But for now, 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." Next day, the Times made amends by asking its legal reporter Adam Liptak to interview legal experts. Jurists are clear that the opinion of the judge had used "circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions."
The jurists supplied the rationale for Washington Post describing the judgment as unhelpful - something the Post had in mind but failed to articulate in its editorial. The ruling could also be faulted with for relying on hypotheses like "the program violated the First Amendment because it might have chilled the speech of people who feared they might have been monitored." While observing that Bush’s programme violated the Fourth Amendment ban on unreasonable searches and seizures, she overlooked an exception in times of "special needs." Taylor also missed the point that wiretapping needed permission from a special secret court under FISA, regardless of Congressional authorization or the President’s special powers. She also passed over a rebuke the Supreme Court administered to the White House for trying Guantanamo prisoners as war criminals. This was a point favourable to the plaintiffs because it rejected a liberal interpretation of executive power.
Though along expected lines, Murdoch’s New York Post posted a more tenable case for the Republicans than the liberal twins did for the Democrats. It recalled how the Clinton administration claimed in 1994 that the President had inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President could depute this authority to his attorney general. "We don’t recall outraged Democrats yelping about the threat to civil liberties at that time," the New York Post said. It branded Anna Taylor as a left-wing jurist whose ruling was "utterly predictable, presumptive and overtly political." The Post dug into some past history of the judge to imply that the ruling was part of partisan politics.
USA Today expressed optimism that the other courts hearing surveillance cases would not rule differently just because the plaintiffs (ACLU) could not show they were harmed by the eavesdropping. USA Today argued that if he found Foreign Intelligence Surveillance Act of 1978 was restrictive, the President could go to Congress to make a case for new legislation. "Congress would surely make addressing the problem a priority, given the mood of the country and the continuing threat exemplified by the alleged airline bombing plot in Britain last week," the Gannett paper said. "My impression is that the major media want to use the NSA story to try and impeach the president," said Cliff Kincaid, editor of the Accuracy in Media Report published by the grassroots Accuracy in Media organization.
The Journal unleashed its wrath on the judge. "The temptations to be hailed as Civil Libertarian of the Year are just too great. We can at least be grateful that President Taylor`s judgment won`t be the last on the matter. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. 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. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found."
The essence of the complaint of the liberal media is that the fault lines in Taylor’s judgment would strengthen the case of the Bush administration when the appeal comes before an appeals court of the Sixth Circuit. As the Time magazine pointed out, "How the ruling will play out politically is uncertain."