Byline: Robert F. Turner, SPECIAL TO THE WASHINGTON TIMES
If last week's decision in ACLU v. NSA is left standing, America may have to decide to shut down its commercial passenger airline industry or leave passengers totally at the mercy of terrorists armed with guns, knives, and liquid explosives. For Judge Anna Diggs Taylor has declared the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause." It is established that airport screenings constitute Fourth Amendment "searches," and in 1989 the Supreme Court noted firearms were only detected in about 0.0004 percent of airport searches hardly the "probable cause" needed for a warrant.
Fortunately, the case has already been appealed and will certainly be overturned. One could spend hundreds of pages addressing the errors in the decision, but even a brief summary of a few of its shortcomings should suffice to demonstrate it is an absurd and outrageous opinion.
In discussing "The History of Electronic Surveillance in America," Judge Taylor asserted the Supreme Court in the 1967 Katz case held that "searches conducted without prior approval by a judge or magistrate were per se unreasonable" under the Fourth Amendment, and added that in 1972 the court unanimously held a prior warrant was required "even in domestic security matters." She failed to mention footnote 23 of the Katz case expressly exempted "national security" wiretaps from the holding and the 1972 "Keith" case (United States v. United States District Court) to which she repeatedly refers emphasized the court only required a warrant for purely domestic national security wiretaps and expressed "no judgment" on the scope of the president's surveillance power regarding "the activities of foreign powers, within or without this country," or their "agents" inside the United States. It thus did not address the issues involved in the current NSA program.
In holding that monitoring the communications of al Qaeda operatives abroad who communicate with people inside the United States also violates the First Amendment, Judge Taylor relied on a precedent striking down a 1950s Little Rock city ordinance requiring the NAACP to submit a full list of its members, which the Supreme Court in Bates recognized would "frighten off potential members and contributors" and thus undermined the amendment's guarantee of peaceable assembly. Does she honestly believe it is unconstitutional for our government to try to frighten off potential members and contributors to international terrorist groups?
Her "separation of powers" analysis is equally unimpressive, relying largely on the president's constitutional duty to "take care that the laws be faithfully executed." She doesn't recognize that, as emphasized by Chief Justice John Marshall in his landmark 1803 opinion in Marbury v. Madison, "an act of the legislature, repugnant to the Constitution, is void" and "not law."
Although Judge Taylor was appointed by President Carter, she fails to note that in 1978 his attorney general, Griffin Bell, told Congress enactment of the Foreign Intelligence Surveillance Act (FISA) could not deprive the president of powers given him by the Constitution. As John Jay clearly explained in Federalist No. 64 in 1788, the new Constitution left the president free "to manage the business of intelligence in such a manner as prudence may suggest."
Nor does she mention that the FISA-established federal appeals court noted in a unanimous 2002 opinion that every court to consider the issue has "held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information" and concluded that "FISA could not encroach on the president's constitutional power."
Instead of a serious discussion of whether Congress could by mere statute alter the Constitution and seize presidential powers, Judge …