Law Alter Views
America's Constitutional Showdown
Arguments against Bangladesh's wiretapping ordinance vindicated
Chaumtoli Huq
Leave it up to a federal judge in Detroit, Michigan (home to one of the largest Arab communities in America) to tell the Bush administration that the Emperor has no clothes when he ruled that the government's eavesdropping programme is unconstitutional. The fancy legal garb Bush asserts he has is the inherent power under the United States Constitution to make law by executive fiat and to disregard the Bill of Rights. If there was any ambiguity as to who had the last say on the law, Judge Taylor cleared it when she wrote in ACLU. National Security Agency (NSA) (August 17, 2006): “There are no hereditary Kings in America and no powers, “not created by the Constitution”. The legal issue in the decision ACLU v. NSA was whether the National Security Agency's policy of wiretapping international telephones and Internet communications is constitutional. NSA is a United States intelligence-gathering agency. President Bush authorised a programme of eavesdropping without a warrant, similar to the President of Bangladesh who amended the Telecommunication Act of 2001 authorising law enforcement to eavesdrop on telephone conversations without any legislative change in the Bangladesh Parliament. (The Daily Star, December 13, 2005). So, now that the wiretapping law has been ruled unconstitutional here in America, will Bangladesh rescind its ordinance amending the Telecommunications Act of 2001? After all, we are in a post “war on terrorism” legal era where misguided anti-terrorism laws are exported as well as other consumer goods irrespective of its local fitness. The skeptic in me says probably not, but I remain hopeful. Human rights activists never seem to benefit from this transnational flow of law. It is as if there is a spam at the imaginary jurisprudential border where we can accept at times verbatim the anti-terrorism legislative proposals from the United States, but we weed out all the constitutional limitations. I am not opposed per se to nations sharing and learning from the legal systems of its peer nations, but this sharing, dating back to colonial times, always seems to flow in one direction. Thankfully, a federal judge vindicated what constitutional scholars here and in Bangladesh have been saying: You cannot eavesdrop on private telephone conversations without a warrant. Progressive legal activists are always accused of focusing on what is bad about America. Here, in this article, I will tell you about what is good – jurists like Judge Taylor. If Bangladesh wants to follow the wonderful tradition of American constitutionalism, please read Judge Taylor's decision on the Bill of Rights and separation of powers and rescind its own unconstitutional wiretapping law.
Judiciary and the Executive
Plaintiffs in the NSA case who challenged the Bush administration's authority to eavesdrop without a warrant were journalists, researchers, and lawyers who have regular communications with persons in the Middle East for legitimate professional reasons. Plaintiffs claimed that the NSA's wiretapping programme violates their right to free speech, association and privacy as well as their Fourth Amendment right against unreasonable searches and seizures. Lawyers complained that they were unable to effectively represent their clients because the government was monitoring their calls. Researchers and journalists made similar allegations that impeded their right to associate and engage in scholarly conversations with persons in the Middle East. The Bush administration argued that the government has the legal authority to eavesdrop on the conversation of its citizens without a warrant. It relies on Congressional authorisation to use military force to address terrorism as the justification for the eavesdropping programme. But Congress only authorised war with Afghanistan.
Plaintiffs also argued that the claim violated Americans' constitutional doctrine of separation of powers. Separation of powers is a basic principle of American constitutionalism that every child in his or her civics class learns. That is that the executive, legislative and judiciary are set up to serve as checks and balances so that no one branch of government exercises greater power. The court in the NSA decision notes this: It was never the intent of the framers to give the President such unfettered control, particularly where his action blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. (page 24)
Here, the Bush administration not only exceeded its authorisation granted to it by Congress but also exceeded authority granted under the constitution. When a ruler is thought to be above the constitutive legal document that formed the nation, he is not a democratic ruler but a monarch.
Not surprisingly, due to Judge Taylor's sound legal decision, republicans have begun to personally criticise her as a liberal and biased judge. She is an African American jurist who was appointed to the federal bench by President Carter. Carter since his presidency had been a big promoter of constitutional rights and human rights. The New York Times editorial correctly praised when it wrote that Judge Taylor “asserted the rule of law over a lawless administration.”
Lessons for Bangladesh
Bangladeshis should take heed to the district court's ruling that wiretapping without a warrant is unconstitutional. When the Government of Bangladesh passed the amendment to the Telecommunications Act, it referenced the law of the United States. The justification for eavesdropping was the same as that advanced by the United States, namely the surveillance would help in law enforcement's efforts to combat terrorism. The court has now accepted what the scholars and journalists have been saying about the unconstitutionality of the wiretapping without a warrant. We should rescind our wiretapping law. Why? Hark, there are no hereditary Kings anywhere on the globe. Not even in Bangladesh.
Chaumtoli Huq is a lawyer residing in New York.
