12.20.2005

Out here in Moonbatville

A lot of people around San Francisco are talking about "Bush spies on Americans." People joke when calling each other on the phone, "Watch what you say. Bush may be listening."

Maybe they only read the headlines, or maybe the TV news reports didn't make it clear that the eavesdropping program only applies to known terrorist associates making calls to overseas numbers. Wow! I certainly wouldn't want the NSA to find out what known terrorist associates are doing in America! I mean, the "land of the free" means terrorists should be free to plan to kill people without government interference, right?

OpinionJournal explains why President Bush is doing the right thing, and has the legal authority to do it.
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."

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