GOP troubles: Judge Taylor to the rescue

Dateline: 23 August 2006

A judge appointed by President Carter has decided to hand Novemberís Congressional elections to the Republicans. What an odd thing for her to do.

By tortured reasoning Judge Anna Diggs Taylor has arrived at a judgement which she knows cannot possibly stand, because it flies in the face of a previous ruling by the Supreme Court. But as a result she has put to the very top of the political agenda an issue on which Republicans have margins over the Democrats of up to two to one.

Democrats believe Ė rightly Ė that this November offers them the best chance of retaking Congress since they lost control 12 years ago. While six net gains in the Senate will be tough, and 15 in the House perhaps even tougher, the national tide seems to be swinging their way. Taking control of Congress will be difficult, but it is certainly possible.

So why would Democrats want to spend the next 12 weeks debating the administrationís policy on terrorist intelligence gathering? The answer, of course, is that they donít. It is the last thing they want to talk about. According to a recent Harris survey for the Wall Street Journal the public not only supports current surveillance policies, but a clear majority (52%) wants expanded surveillance of cell phones and e-mail to intercept communications. An even larger majority (70%) wants expanded use of camera surveillance in public places.

In the face of public opinion, a judge has ruled current surveillance policies illegal. Public opinion is by no means the definitive argument, especially in court. A majority might want Congress to ban the expression of Islamic views, but this would still be unconstitutional. But Judge Taylorís reasoning is extra-ordinarily weak.

She bases her ruling principally on the Fourth Amendment, which protects Americans from unwarranted search and seizure. That the founders never intended this to cover electronic interceptions is irrelevant. They never anticipated freedom of speech covering broadcasting either. Things have changed. The Supreme Court has ruled that the Fourth amendment does cover electronic interceptions. But it was also clear that this is in reference to the investigation of ordinary crimes, not in relation to national security.

Powers relating to the defense of the nation are covered by just one clause in the Constitution. It says that the President is Commander in Chief. The exercise of these powers to authorize eavesdropping was not even controversial under previous Presidents, including Carter and Clinton.

When Congress passed a law to regulate such matters, Jimmy Carter signed it, but specifically said that it did not affect his powers regarding intelligence gathering. Nor could it. The executive and legislature are separate and co-equal branches of government. Congress can no more vary the Presidentís powers as Commander in Chief than the President can ban Congress from regulating interstate commerce.

So a Carter appointee has taken a stand on an issue on which all three branches of government have already ruled against her. Her stand is unsupported in law or the Constitution. She has pushed to the top of the political agenda an issue on which Republicans have a large and growing majority, and she did it only a week after we learned that intelligence gathering, including electronic intercepts, had foiled a plan bigger than 9/11.

Karl Rove must love this woman.

Quentin Langley is editor of an academic at the University of Cardiff and is a columnist with Campaigns & Elections. This article was first published in the Common Sense series for Lake Champlain Weekly.

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