COLUMBUS, OHIO President Bush is violating the law by wiretapping on his own, without getting court approval. And U.S. District Judge Anna Diggs Taylor got it right when she said so in her Aug. 17 decision.
Bush began after 9-11 to tap telephone calls to and from the United States. Congress had refused to give him authority to do so. There was a law that required a warrant. Bush ignored it and started wiretapping.
Congress regulates wiretapping, specifically in the security context. In 1978 it established a special court to let the president wiretap on an expedited basis when foreign intelligence considerations are involved.
To accommodate the president even further, Congress said that if the president believes it is necessary to tap into a telephone line immediately, he may do so without going to any court. He must then apply within 72 hours, after the fact, to get the special court to approve the tap he already began.
When that procedure was initiated, more than a few eyebrows were raised. The president never before had had the right to tap a telephone without first getting a warrant. The 1978 law let the president do so on his own, but with subsequent approval.
Now President Bush says that even this is not good enough. He is wiretapping without telling the court that Congress set up for that purpose.
After it became known that Bush was wiretapping without going to the special court, one of the judges on the court resigned - apparently in protest.
In the name of security, or of fighting terrorism, the president cannot ignore the law and the other branches of government. He did that in 2001, when he set up special courts to try terrorist suspects, like those being held at Guantanamo Bay in Cuba. He claimed an authority to do so because he is commander in chief of the military. He said it was necessary for fighting terrorism.
Last June the Supreme Court said no. It pointed out that the United States has entered into treaties about how we treat people we capture in warfare. The court made the president follow the law. He cannot make up procedures on his own.
In that case, Bush said that Congress had authorized him to set up special courts because it authorized him to use military force against terrorists who had attacked in the United States.
In a 2001 resolution, Congress did authorize military action but said nothing about special courts. Bush said nonetheless that that authorization covered special courts. The court said no.
Bush is trying the same flawed argument with wiretap. Since Congress authorized him to take military action against terrorists in the 2001 resolution, he says, it must have authorized him to wiretap without court approval. Rejecting this argument, Judge Taylor pointed out that the congressional resolution "says nothing whatsoever of intelligence or surveillance."
Judge Taylor invoked a rule of construing statutes that says that "the specific governs the general." Since Congress dealt with wiretap specifically in its 1978 law but did not mention it in the 2001 resolution, the 1978 law governs.
Bush's argument is no better in relation to wiretapping than it was in relation to the special courts. The congressional authorization to take military action did not allow the president to ignore the wiretap law.
Since Judge Taylor ruled against President Bush, she has been criticized for not having disclosed her affiliation with a foundation that once gave funding to the ACLU, which brought the suit.
Whether she should or should not have disclosed this information, Judge Anna Diggs Taylor's decision in the case was right. President Bush is dead wrong on wiretaps.