Andrew C. McCarthy neatly summarizes the Bush administration's case for the legality of the NSA intercept program, which by the way was the case made by the Clinton administration, the GHWB administration, the Reagan administration, the Carter administration, the Nixon administration....
The president reiterated two basic arguments in support of the NSA program which have been posited by the Justice Department and administration officials. The first relies on the inherent constitutional authority of the president under Article II of the Constitution. The president is commander-in-chief of the armed forces and the constitutional officer singularly obligated to conduct foreign affairs and protect the American people from external threats. Consequently, federal courts have long recognized the president's inherent authority to conduct monitoring to protect national security — at least when a foreign threat is involved.Critics argue that the passage of FISA has altered the constitutional field. That contention, however, has two insuperable obstacles. First, the Constitution cannot be altered by a statute — it is the supreme law of the land. This is why (as I argued on Monday), acts of Congress have long been subject to being held invalid if they violate the Constitution or attempt to modify its structure. Presidents used national-security surveillance authority for many years before there ever was a FISA. If presidents had that power in the first place because of Article II, Congress can do nothing to take it away.
Second, in 2002 — even after nearly a quarter century of FISA's operation — the Foreign Intelligence Court of Review (the highest and most specialized court ever to review a FISA case) indicated that presidents maintain inherent constitutional authority despite the terms of FISA. Thus, administration critics are simply wrong when they argue that compliance with FISA is the sine qua non of lawful eavesdropping in the national-security arena.
In an earlier piece in the print edition of NR, McCarthy detailed that decision by the Foreign Intelligence Court of Review in 2002, and also spoke of the 2004 Hamdi decision, neither of which finds its way into Democratic discussion of the President's actions for some reason.
Far from being a pretextual use of war powers to spy on political opponents and policy dissenters, the NSA program has been dedicated to national security. More to the point, it has saved lives, helping break up at least one al-Qaeda conspiracy to attack New York City and Washington, D.C., in connection with which a plotter named Iyman Faris was sentenced to 20 years’ imprisonment...
...Ever since it became technologically possible to intercept wire communications, presidents have done so. All of them. going back to FDR, claimed that the powers granted to the chief executive under Article II of the Constitution allowed them to conduct such wiretapping for national-security purposes. Particularly in wartime, this power might be thought indisputable. The president is the commander in chief of the armed forces, and penetrating enemy communications is as much an incident of war-fighting as bombing enemy targets is......the Bush administration’s defense has been light on the abstruse details of FISA and heavy on the president’s inherent Article II power—although carefully couched to avoid offending Congress and the FISC with suggestions that FISA is at least partly unconstitutional. Essentially, the administration argues that FISA is beneficial in ordinary times and for long-term investigations, but that it did not and cannot repeal the president’s independent constitutional obligation to protect the country: an obligation that was explicitly reserved even by President Carter, who signed FISA; that has been claimed by every president since; and that is uniquely vital in a war against thousands of stateless, stealthy terrorists, in which both a “probable cause†requirement and a sclerotic bureucracy for processing warrant applications would be dangerously impractical. In advancing this argument, the administration finds much support in the one and only decision ever rendered by the Foreign Intelligence Court of Review—the appellate court created by FISA to review FISC decisions. That decision came in 2002, after a quarter-century of FISA experience. Tellingly, its context was a brazen effort by the FISC to reject the Patriot Act’s dismantling of the “wall†that prevented intelligence agents and criminal investigators from pooling information. In overruling the FISC, the Court of Review observed that “all the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence
information.†Notwithstanding FISA, the Court thus pronounced: “We take for granted that the President does have that authority.â€......The administration has also placed great stock in Congress’s post-9/11 authorization of “all necessary and appropriate force†against those behind the terrorist attacks. While this resolution did not expressly mention penetrating enemy communications, neither did it explicitly include the detention of enemy combatants, which the Supreme Court, in its 2004 Hamdi decision, found implicit in the use-of-force authorization because it is a “fundamental incident of waging war.†Capturing intelligence, of course, is as much a component of waging war as capturing operatives. Any other conclusion would lead to the absurdity of the president’s having full discretion to kill terrorists but needing a judge’s permission merely to eavesdrop on them....
...The controversy is a disquieting barometer of elite commitment to the War on Terror. As recently as two years ago, when “connecting the dots†was all the rage, liberals ignored eight years of Clintonian nonfeasance and portrayed the Bush administration as asleep at the switch while terrorists ran amok. Now they ignore President Clinton’s insistence on the very same executive surveillance power that the current administration claims and caricature Bush as the imperial president, shredding core protections of civil liberties by exaggerating the terror threat. Either way you slice it, national security becomes a game in which necessary decisions by responsible adults become political grist, and, if they get enough traction, phony scandals. What remains real, though, is the danger to Americans implicit in any system that can’t tell a war from a crime.
We don't hear Bush's political opponents engaged in discussion of precedents, history or case law, much less the necessity of urgency in dealing with threats to the American people. I'm sure there are legal arguments being made by certain scholars that present a different viewpoint on the legality of the NSA program. But we're not hearing those arguments articulated by a principled Democratic opposition. It's so much easier to scare-monger and pose as protectors of civil rights than to make a coherent argument on a policy matter.
I know I've said this before, but the unwillingness of the Left in this country to grant to George Bush the slightest credit for having made a good faith effort to protect Americans from another attack by Islamist terrorists discredits them, and not him. It would be nice if their positions on this and other policy matters were informed by something other than their impeachment fantasies.
Power Line's John Hinderaker has an excellent post on how Attorney General Alberto Gonzales and the administration are taking their case to the American public
UPDATE 1/26: Yet more from McCarthy on Presidential powers.
Posted by dan at January 24, 2006 12:09 PM