The WSJ had a great editorial today on the subject – here’s the key excerpt:
[i]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.”[/i]
This is another good observation:
[i]As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn’t get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap “gotcha,” the White House should release the names of every Congressman who received such a briefing.
Which brings us to this national security leak, which Mr. Bush yesterday called “a shameful act.” We won’t second guess the New York Times decision to publish. But everyone should note the irony that both the Times and Washington Post claimed to be outraged by, and demanded a special counsel to investigate, the leak of Valerie Plame’s identity, which did zero national security damage.
By contrast, the Times’s NSA leak last week, and an earlier leak in the Washington Post on “secret” prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame.
The NSA wiretap uproar is one of those episodes, alas far too common, that makes us wonder if Washington is still a serious place. Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We’re glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans.[/i]
