Don't Let Me Stop You: NSA and Wiretaps

In an obvious bid to damage GWB and to torpedo the renewal of the Patriot Act, the New York Times published leaked information about national security operations. We wait patiently for the Times to start the drumbeat for Fitzgerald's grand jury to investigate the source of these leaks. Apparently they don't see exposure of real security information to be as dangerous as revealing that a woman who drove to work at CIA headquarters every day worked at the CIA.

We hear lots of accusations that the administrations actions, which were tapping phone calls of terrorists were "illegal." However, as OpinionJournal reports:

The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power--and endangering the country in the process.

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

It seems the President is likely to win any court case on his power to tap al-Qaeda phones without a court order.

George Will, while not claiming the wiretaps were illegal, argues that they were a mistake. In Will's view Bush should have asked for the authority, because he certainly would have gotten it:

On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.

Well, maybe. We're more on board with Roger Snowden's take on this. The key thing is to win and that requires nimble intelligence gathering, because there really are people trying to kill us.