When it comes to the president’s legally dubious tactics and power grabs, Bush isn’t catching many breaks from the federal judiciary lately. A month ago, the Supreme Court delivered a major setback to the administration in its Hamdan ruling; and yesterday, a federal district [tag]court[/tag] gave the green light to a lawsuit challenging Bush’s warrantless-[tag]search[/tag] program.
A federal judge yesterday rejected the government’s effort to throw out a lawsuit about its [tag]warrantless[/tag] [tag]surveillance[/tag] program, arguing that a dismissal of the case would restrict civil liberties without strengthening national security.
The class-action suit against AT&T Inc., filed by the [tag]Electronic Frontier Foundation[/tag] in January, alleges that the nation’s largest phone company collaborated with the federal government in an illegal domestic spying program to monitor Americans’ phone calls and e-mails.
The government, which has defended the legality of what it has called a “[tag]terrorist surveillance program[/tag]” without revealing many details about its workings, asked U.S. District Judge Vaughn R. Walker to dismiss the case, arguing that it would divulge state secrets and damage national security.
In his ruling, Walker wrote that he saw no “reasonable danger” of harming national security by proceeding with the case, that its subject was “hardly a secret” and that the court had a constitutional duty to decide matters brought before it.
Walker, appointed to the bench by President George H.W. Bush, said, “To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired. The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.”
Glenn Greenwald helped explain just how significant yesterday’s court ruling was.
The Bush administration has been exploiting what was a rarely used doctrine to, in essence, immunize its conduct from judicial review of any kind. Because courts have been willing to assume in the past that the doctrine was invoked in good faith by the President, they have almost always deferred to it. But this court scrutinized the claim quite thoroughly, and expressed real skepticism over the administration’s assertions that national security prevents any court from determining if the law is being violated as a result of warrantless eavesdropping.
Most importantly of all, the court re-affirmed one of the most basic and important principles of our system of government. That even with regard to national security, there is no such thing as a President who acts alone without interference from the other branches of government. Instead, quoting Hamdi: “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” That is the very opposite of the Yoo theory of executive power which has been inflicted on this country for the last five years.
The administration will no doubt appeal the ruling to the 9th Circuit, and, if necessary, to the Supreme Court. In the meantime, though, the courts have once again rejected Bush’s notion of a blank check in fighting a war on terrorism. It’s at least mildly comforting that one branch of government is still functioning as it should.