The Wall St. Journal…

The Wall St. Journal, on the constitutionality of NSA wiretapping, and how the Founding Fathers would have seen 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.”

So much for all these congresscritters (and lefty bloggers) immediately assuming that this is some sort of treasonous act worthy of impeachment. What we have here is adjusting strategy to meet a new enemy while staying within Constitutional boundaries and current law. Our Founders had the right idea; in a time of war, requiring decisions by committee will work against us. At the same time, they didn’t make the President a king or a dictator; he still has to abide by prescribed limits. Given what we know so far–the briefings and concerns and even the temporary suspension–it appears that this administration was very sensitive to those limits.

This is all notwithstanding a Clinton-appointed judge who was on the FISA court resigning today, instead of anytime in the past year. If he was so deeply concerned over this surveillance,why did he wait until the story broke? Sounds more political than personal to me.

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