Posted by Randy Gainer

By holding that the NSA’s domestic eavesdropping program violates the First and Fourth Amendments of the Constitution, Judge Taylor upended Senator Specter’s Bush Administration-approved FISA fix billSee pages 28-32. Senator Specter’s bill, SB 2453, would amend FISA to permit the NSA to continue the domestic surveillance that Judge Taylor enjoined on August 17. (She stayed the injunction until September 7, when she hold a hearing to consider whether to continue the stay during the appeal that the Department of Justice filed several hours after her initial ruling.) The fallback legislative fix that Senator Specter cooked up with the President’s lawyers would not, even if Congress were to enact it, overcome the constitutional flaws that Judge Taylor found in the NSA eavesdropping program.

Senator Specter’s bill would rewrite FISA section 109 to state “A person is guilty of an offense if he intentionally – (1) engages in electronic surveillance under color of law except as authorized by statute or under the Constitution.” Judge Taylor held, however, that the Fourth and First Amendments prevent domestic wiretapping for foreign intelligence gathering without a judicial warrant. Senator Specter’s bill was transparently intended to “overrule” a potential judicial ruling that the NSA program violates the requirement in FISA that the executive must get a warrant or an order from the Foreign Intelligence Surveillance Court.

Judge Taylor explained in her decision that the Fourth and First Amendments were adopted in the 18th century to prevent warrantless searches and that the NSA’s domestic eavesdropping program is the modern, electronic equivalent of the searches the amendments were intended to prevent. Her holding that the Constitution requires a warrant before the NSA can conduct domestic eavesdropping cannot be “overruled” by Specter’s bill or by any other legislative fix the Bush Administration and its congressional allies concoct.

The New York Times got it right in its lead editorial today: “[W]ith a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do. She has reasserted the rule of law over a lawless administration and shown why issues of this kind belong within the constitutional process created more than two centuries ago to handle them.” If the Sixth Circuit Court of Appeals and the Supreme Court affirm the parts of Judge Taylor’s decision that held that the NSA domestic spying program violates the First and Fourth Amendments, the Bush Administration and its allies in Congress will not be able to “overrule” her courageous decision.