Separating the Powers

Here is a question, particularly for those who know anything about the Constitution: Why are both Houses of Congress debating bills which delineate Mr Bush’s domestic spying program?

 

On Wednesday the Senate “torpedoed” (to use CNN’s choice of words) an attempt by Democrats to put limits on Mr Bush’s NSA wiretapping program. Indeed, both Houses of Congress are debating the issue at present. The administration has fervently pressed Congress to get something passed. Much like one of my previous posts, this issue makes one wonder whether a benevolent administration is trying to keep the focus on security to help the GOP, or a desperate administration is grasping any bit of power they can get because they are convinced the GOP will be replaced soon by a less-than-sympathetic crew. But I digress…

 

On August 18th, District Court Judge Anna Diggs Taylor ruled that the wiretapping program was illegal. Specifically, her vitriolic opinion included the following: “It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights… The three separate branches of government were developed as a check and balance for one another.” She rejected the government’s position that the president “has been granted the inherent power to violate not only the laws of the Congress [re: the 1978 F.I.S.A. bill] but the First and Fourth Amendments of the Constitution, itself.” She also stated that the program violated the separation of powers: “There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.” She ordered the program to halt, effective immediately. Obviously, the administration appealed.

 

To recap, the program is illegal four times over: (1) it violates the I Amendment, (2) it violates the IV Amendment, (3) it violates the 1978 F.I.S.A. act of Congress, and (4) it violates the separation of powers doctrine outlined in the Constitution. Even if one wanted to be as generous to the administration as possible, striking bases (1) and (4), (2) is backed by a great deal of Supreme Court precedent as well as Congressional statutes, and (3) could not be more specific in its denying the legality of the program.

 

Here is what I don’t get: Why is Congress debating the program at all? I’m not being cheeky. Unless Congress intends to amend the Constitution to specifically allow the executive the power to spy on American citizens, thereby overturning a great deal of precedent involving both the IV Amendment and the “penumbral” right of privacy, I’m not sure what the House and Senate bills entail aside from pissing in the wind. A federal justice declared that the executive has violated the Constitution of the United States in at least three separate ways with this program, and thereby ordered its immediate cessation. Even if Congress wrote a bill that negated the F.I.S.A., this still would not overturn Judge Taylor’s ruling. What’s more, how is it that the CIA can continue to administer the program with impunity while the appeals process rolls on? I thought it went the other way around; I thought that they had to cease until the ruling was overturned on appeal. Indeed, even if I’m wrong about that, and even if Congress passed a law nixing F.I.S.A. and allowing the program, the ACLU would pounce and Congress’ new law would be ruled unconstitutional on the basis of Judge Taylor’s ruling. For, it seems to me, this case must control any latter ones resulting from any action by Congress (save, of course, amending the Constitution).

 

Therefore, I ask all of you: what the hell is Congress doing right now? I don’t know too much about law, but it looks like they are pissing in the wind.

 

-W.