Jacob Sullum

That principle is especially troubling in light of President Bush's belief that he has the inherent authority to do whatever he considers necessary to fight terrorism, no matter what Congress or the courts say. Although Taylor's opinion has been criticized for its skimpy Fourth Amendment analysis, it effectively lays bear and emphatically rejects the president's attempted subversion of the checks and balances that distinguish the American executive from a strongman who answers only to his own conscience.

While Taylor failed to adequately support her assertion that the NSA's eavesdropping is "obviously in violation of the Fourth Amendment," her conclusion that the Bush administration is violating the Foreign Intelligence Surveillance Act (FISA), which requires warrants for precisely this type of monitoring, is beyond serious dispute. If the administration is right that Congress lifted FISA's requirements when it authorized the use of military force against the terrorists responsible for 9/11, Congress did so without realizing it.

The authorization "says nothing whatsoever of intelligence or surveillance," Taylor noted, and Congress subsequently amended FISA's warrant requirements in ways that would be entirely redundant if the administration's reading of the authorization were correct. She might have added that the Supreme Court implicitly rejected such a broad interpretation when it ruled that the authorization did not give the president permission to rewrite the laws governing military tribunals.

At bottom, though, Bush does not think he needs permission. Given that attitude, Taylor's declaration that "there are no hereditary kings in America and no powers not created by the Constitution" strikes me not as rhetorical excess but as a much-needed civics lesson for the president.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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