Sounds pretty good
This NYT editorial on Congress’ approval of warrantless surveillance makes interesting reading. It disapproves of Congress and the legislation, but in a way that make both sound pretty good to us:
It was appalling to watch over the last few days as Congress…Republicans marched in mindless lockstep with the president. There was double-dealing by the White House. The director of national intelligence, Mike McConnell, crossed the line from being a steward of this nation’s security to acting as a White House political operative.
But mostly, the spectacle left us wondering what the Democrats — especially their feckless Senate leaders — plan to do with their majority in Congress if they are too scared of Republican campaign ads to use it to protect the Constitution and restrain an out-of-control president.
The votes in the House and Senate were supposed to fix a genuine glitch in the 1978 Foreign Intelligence Surveillance Act, which requires the government to obtain a warrant before eavesdropping on electronic communications that involve someone in the United States. The court charged with enforcing that law said the government must also seek a warrant if the people are outside the country, but their communications are routed through data exchanges here — a technological problem that did not exist in 1978.
Instead of just fixing that glitch, the White House and its allies on Capitol Hill railroaded Congress into voting a vast expansion of the president’s powers. They gave the director of national intelligence and the attorney general authority to intercept — without warrant, court supervision or accountability — any telephone call or e-mail message that moves in, out of or through the United States as long as there is a “reasonable belief” that one party is not in the United States. The new law all but eviscerates the 1978 law.
Sounds pretty good — and certainly necessary — in these times.
UPDATE
Andrew McCarthy expands on the points above:
For nearly two years since the New York Times blew the NSA’s warrantless-surveillance program, the Left has transfigured itself into a whirling dervish of indignation over President Bush’s imperious trampling of “the rule of law.” Why? Because he failed to comply with the letter of FISA, which purports in certain instances to require the chief executive — the only elected official in the United States responsible for protecting our nation from foreign threats — to seek permission from a federal judge before monitoring international enemy communications into or out of the United States.
But the president, at least, had an excuse. Actually, not a mere excuse but a trump card. We call it the American Constitution. It empowers the chief executive to conduct warrantless surveillance of foreign threats. Even the FISA Court of Review, the highest, most specialized judicial tribunal ever to consider FISA, has acknowledged this. So did the Clinton administration when FISA was amended in 1994. In the United States, the “rule of law” first and foremost is the Constitution.
The president’s constitutional authority is inviolable — it cannot be reduced by mere legislation. When Congress passes a statute, like FISA, that purports to reduce the president’s constitutional authority, it is Congress, not the president, that is trampling the rule of law. A president who ignores such a statute is not a law-breaker; he is a defender of the highest law. He is executing the responsibility vested in his office by the Framers who, as Alexander Hamilton observed in The Federalist No. 73, worried deeply about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.”
But let’s leave that aside for a moment. Whether you agree or disagree with what I just argued, it is incontestable that, under our Constitution, the president has a role — a plenary role, according to the Supreme Court — in the gathering of intelligence against foreign entities for national-security purposes.
The courts, to the contrary, have no such role.