Fed's NSA wiretapping ruling a victory and challenge for 'Orginalists'

A freely available ink-stained wretch/Cowboy Times EDITORIAL

Originally published 8.22.06

Despite the Bush administration, their mouthpieces and allies in Congress, such as Sen. John McCain (R-AZ), and yak-a-ratchiks in the right-wing media chorus tarring a federal district judge’s decision last Thursday, declaring unconstitutional the president’s warrantless NSA wiretapping program, with the ludicrous brush of liberal judicial activism, Judge Anna Diggs Taylor’s opinion is indubitably grounded in the most traditional of judicial philosophies, ‘Originalism.’

Taylor, a Democrat appointed by President Jimmy Carter, soundly rejected President Bush’s secret and warrantless NSA program to intercept the calls and e-mails of Americans, who might or might not be in contact with foreigners suspected of terrorism, based on a judicial philosophy shared by the Supreme Court’s most conservative jurists, Justices Antonin Scalia and Clarence Thomas.

Judge Taylor is also the first black woman to be appointed to a federal bench in Michigan. But you don't hear her right-wing naysayers mentioning that, only that she is, hold the crazy-pills, a duplicitious Democrat! How come right-wingers like to trumpet the race of minorities who agree with them, but only disparage the contrary party affiliation of minorities who disagree? Can't dem damn Democrats be dem damn black Democrats too?

"Originalism," a formalist theory of law, closely related to “textualism” that focuses on the "original intent" of the Founding Fathers, is mostly popular among political conservatives. However, some liberals, such as Hugo Black, have also subscribed to the theory. Conservatives who believe in 'Orginalism' include Robert Bork.

Critics of Judge Taylor, such as the glittery American Foreign Policy Council senior fellow James Robbins in a recent USA TODAY editorial, have ridiculed Taylor for using abstract rhetoric “to patch holes in her substantive argument”.

In characterizing President Bush’s progressively aggressive and unitary expansion of executive branch power since 9/11, Judge Taylor decried the NSA wiretapping program, which has and continues to break existing laws, as expressed in the Foreign Intelligence Survelliance Act of 1978 (FISA) and as enurmerated in the Bill of Rights and U.S. Constitution, as an act comparable to “hereditary Kings".

“There are no hereditary Kings in America,” she wrote, “and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution.”

Fleshing out her 43-page opinion with 'originalist' clarity and fervor, Judge Taylor, in striking down the Bush-backed NSA program, reasoned: "It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights."

In his criticism of Judge Taylor, Robbins, like the sophist and apologist for an unlawful policy he so valiantly aims to be, argues a one-legged "straw man," from the corner where he sits under his funny hat, when he writes: “One might ask how the NSA can determine which conversations are important before they are collected.”

First off, dear court jester Robbins, as you well know but your cynacism prevents you from mentioning, FISA provides the president a 30-day retroactive application for a warrant and up to one-year without a court order for foreign intelligence gathering. In creating the law, its authors and amenders realized that tying the hands of intelligence officials in hot pursuit of a suspect or suspects would present a danger to the nation. Ergo, they wrote FISA with an eye toward allowing its secret court to grant permission after survelliance was fait accompli. By doing so, FISA's creators gave counterterrorism agents and others great discretion and great trust, essentially pre-9/11 preemptive authority, to hunt down America’s enemies--demanding only an eventual permission slip to wiretap and be watched themselves via a retroactive apology note.

Why they even bother keeping up the whole charade of professional courtsey is much, too much nuance for me.

If intelligence experts or the NSA, or even my bookie, can not figure out after a year of surveillance, including wiretapping, whether a target or targets are a potential threat or not, then the problem lies not with FISA or Judge Taylor but with the methods and capabilities of intelligence professionals. Secondly, who is this abstract "one" made of straw Rowdy Robbins cites as a dissenting authority in his dissemblings posing as candid argument?

And why is it not okay for Judge Taylor to be abstract but okay for wonkish eggheads like you, Monsieur Robin Egghead? And please give us something better than: "Yo! If you're black, don't be abstract."

One might rightly ask why you, Rappin' Robbins, like the president and vice-president, are still trying to push our “fear buttons” when your harum-scarum syllogisms fall faster than stardust?

Unless President Bush and his attorney general have a federal statute in their purported grab bag of secret evidence justifying their repeated breaking of existing laws, all the alleged proof of their much ballyhooed NSA spying programs' victories in thwarting America’s enemies will not matter a whit, according to an 'Originalist' take on the Constitution.

Taylor’s ruling is hardly the last word on this matter. For her decision, as is the White House’s prerogative, is already on appeal. However, by siding with the 'Originalists,' Judge Taylor presents a unique challenge to Justices Scalia and Thomas, should this fight go the distance, to prove their well-burnished conservative credentials are more than just partisan warpaint.

Will the far right's MIB remain intellectually honest or serve us up a boilerplate wartime waffle?

In the meantime, President Bush and his minions ought and try upholding and defending the Constitution for a change. It is, after all, what Mr. Bush swore to do before Chief Justice William Rehnquist and the world before that enigmatic jurist’s untimely death.

Photo Captions & Credits: "Lady Justice"; "Federal District Judge Anna Diggs Taylor" ; "Conservative intellectual James Robbins"; "Justices Scalia & Thomas" all courtsey of on-line stock