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Ruling Underscores Separation of Power

Aug. 24 -- President Bush should be getting the idea by now that he is not in sole control of the U.S. government.

For the second time this summer, a court ruling has made it clear that his powers are limited and that the executive branch is subject to the same checks and balances as the legislative and judicial branches.

"There are no hereditary kings in America and no powers not created by the Constitution," wrote federal Judge Anna Diggs Taylor earlier this month in ruling that the National Security Agency's program to wiretap international communications without a court warrant violates the Constitution.

The lawsuit challenging the program was brought by the American Civil Liberties Union on behalf of several lawyers, scholars, journalists and others.

In June, the U.S. Supreme Court ruled that Bush superseded his authority in planning to use military tribunals to try detainees at Guantanamo Bay without the approval of Congress.

Taylor ruled that the NSA surveillance program violated the Fourth Amendment, which prohibits unreasonable searches and seizures, and a 1978 law that requires warrants from a secret court for intelligence wiretaps involving U.S. citizens and foreign nationals who reside here.

However, Bush insisted that he was given authorization by Congress in 2001 to take whatever military actions were necessary to combat terrorists, especially those who planned and executed the attacks on Sept. 11, 2001.

He also contended that his constitutional duty to protect American citizens gives him the power to initiate programs such as the NSA's warrantless surveillance of international communications.

Taylor disagreed, and rightly so.

"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," she wrote.

It's interesting that rather than criticizing the ruling itself, many Republicans have chosen to attack Talyor, whom they refer to as a liberal judge trying to push a politically partisan agenda.

Talyor was active in the civil rights movement in the 1960s and was appointed to the bench by President Carter in 1979.

The White House has appealed Taylor's ruling and a hearing has been scheduled for Sept. 7. Until then the NSA will continue to operate the program.

It has never been clear why the Bush administration chose to listen in on telephone calls in and out of the United States without first getting court approval.

White House officials claim the only calls on which they eavesdrop are those involving terrorism suspects. If that's true, the court, created by the Foreign Intelligence Surveillance Act, which was passed by Congress in 1978, would have no reason not to approve the wiretaps.

Our objection never has been to the wiretaps themselves, but to the fact the White House has resisted any meaningful oversight of the NSA program either by the courts or Congress.

As of now, Americans have only the administration's word that the privacy of citizens who have no connection with terrorism is not being violated.

That is not enough. The Founding Fathers created a government with three branches in order to provide checks and balances so that no one branch would have more power than the other.

Bush has never seemed to understand this basis civics lesson.

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