Editorial: Judge’s ruling on the mark

Sunday, Aug. 20, 2006 | 7:43 a.m.

After The New York Times last December disclosed that the Bush administration was listening in on Americans' international telephone calls without a court order as required by federal law, we wrote that the president overstepped his authority in authorizing the surveillance shortly after 9/11.

Now a U.S. District Court judge in Detroit, ruling on a lawsuit filed by the American Civil Liberties Union and other groups, has reached the same conclusion.

"It was never the intent of the framers (of the U.S. Constitution) to give the president such unfettered control," Judge Anna Diggs Taylor wrote in her 43-page opinion, which was released Thursday. "There are no hereditary kings in America and no powers not created by the Constitution."

Her ruling does not take effect immediately. U.S. Attorney General Alberto Gonzales plans an appeal, and his staff has asked the court to block Taylor's order to stop warrantless wiretapping until after the appeal has been decided. Gonzales said that while the court is considering that request, "We will continue to utilize the program to ensure that America is safer."

What has never been satisfactorily explained by Bush or his staff is why they are so adamant about bypassing the Foreign Intelligence Surveillance Court. This is a special court established after the 1978 Foreign Intelligence Surveillance Act, known as FISA, was passed to prevent abuses of presidential power.

The court, whose proceedings are carried out in secret, over the years has granted almost every request to come before it. The court even allows federal surveillance to begin without warrants as long as they are applied for later. But Bush claims that, as a war president, as commander in chief, he has full authority to ignore FISA and the court it spawned.

Many legal scholars, including law professors from some of the nation's finest universities, reject Bush's contention. And on Thursday another expert voiced his opinion. Lee Hamilton, a former Indiana congressman who served as vice chairman of the 9/11 Commission, said in reaction to Judge Taylor's ruling, "You do not put unchecked power anywhere in the administration."

We agree, and we hope the U.S. Supreme Court will agree as well, if the appeal goes that far.