The White Palace

By Dan Froomkin
Special to
Friday, August 18, 2006; 12:56 PM

It's not just virulent Bush-haters who think the president has been acting like he's the king -- increasingly, it's also the judicial branch.

Yesterday's rebuke of the White House's assertion of nearly unlimited executive power in a time of war came from U.S. District Judge Anna Diggs Taylor, who struck down President Bush's warrantless domestic surveillance program as both illegal and unconstitutional.

That, of course, comes hard on the heels of the June 29 Supreme Court decision that struck down Bush's tribunals for terror suspects and reasserted the nation's adherence to the Geneva Conventions.

Yesterday's decision is at a much lower judicial level. The ruling is on hold for now, and the White House is adamant that it will succeed in getting it reversed.

But the idea that there is something fundamentally un-American about some of the basic underpinnings of Bush's war on terror is certainly gaining ground.

Here's the text of the ruling, which includes the following primer on the Constitution:

"Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

"The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he 'will, to the best of my ability, preserve, protect and defend the Constitution of the United States.'

"The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

"We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."

Asked to respond to the suggestion that he had ignored constitutional limits on his executive power, Bush had this to say from Camp David this morning: "Those who herald this decision simply do not understand the nature of the world in which we live."

The official White House response yesterday was blistering: "Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people. Today a federal judge in Michigan has ruled that the Terrorist Surveillance Program ordered by the President to detect and prevent terrorist attacks against the American people is unconstitutional and otherwise illegal. We couldn't disagree more with this ruling. . . .

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