WSJ Editorial: Thank you Mr. President for wiretapping





Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America.

That is the real issue raised by the Beltway furor over last week's leak of National Security Agency wiretaps on international phone calls involving al Qaeda suspects. The usual assortment of Senators and media potentates is howling that the wiretaps are "illegal," done "in total secret," and threaten to bring us a long, dark night of fascism. "I believe it does violate the law," averred Mr. Feingold on CNN Sunday.

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.

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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."

On Sunday Mr. Graham opined that "I don't know of any legal basis to go around" FISA -- which suggests that next time he should do his homework before he implies on national TV that a President is acting like a dictator. (Mr. Graham made his admission of ignorance on CBS's "Face the Nation," where he was representing the Republican point of view. Democrat Joe Biden was certain that laws had been broken, while the two journalists asking questions clearly had no idea what they were talking about. So much for enlightening television.)

The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being "secret," key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them....


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Arnold Shcherban - 12/23/2005

"The founding fathers" are most
likely cracking up in wherever they are now at the stupidity of contemporary wise men of virtue who
continiously allege that all they ("fathers") had ever said two centuries ago is still the greatest
social and political idea or governing principle ever created by humans and has to govern the lives
of all generations of Americans to come, up to infinity. The tremendous
historical, intellectual and social
changes occured since their times can
bear no significance on the matters
in question. The same, of course, fully embraces the powers of the executive branch. Therefore, it is
the holy, untouchable principle that
three-headed man, MUST have greater power in the issues of national security and the exceptions to the
Constitution, than "535 talking heads".
As far as the evidence is concerned,
there already popped up the evidence
that at the least in one case, not
just the incoming from and outcoming to the borders of the US calls were intercepted, as it the Bush administration initially alleged, but the calls inside the US, too.
And, judging by all experience with current administration that will show to be just the tip of the iceberg of its lies and criminality in this area, as well.

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