Last August the Foreign Intelligence Surveillance Court once again affirmed President's Bush's constitutional authority to conduct warrantless electronic surveillance in the name of national security. That ruling was made public yesterday but the court reached a similar conclusion in 2002, In re: Sealed Case. Still, ever since December 2005, when the Times first broke the story that President Bush had decided to set aside FISA's various problematic strictures and procedures, there has been a constant drumbeat of charges that President Bush was acting illegally in ignoring FISA. The authorization of warrantless wiretaps was offered as a prime example of the renegade, "imperial presidency" of George W. Bush. The law is clear: the United States government does not need a warrant to listen to the perfectly innocent conversations between, say, a New York Times editor and his al Qaeda buddy in Peshawar. As the boss and frequent WEEKLY STANDARD contributor Gary Schmitt pointed out early on (" Vital Presidential Power," Washington Post, December 20, 2005, and " Constitutional Spying," WEEKLY STANDARD, January 2, 2006), the president was both correct and well within his rights to put aside an out of date law that was impeding him from his duty to protect the country from another attack. The case against Bush, pushed by the media and carried by the Democratic party, was built on ignorance about what the Constitution says and what Bush has actually done. But there's no apology from the New York Times -- not for compromising national security by first reporting the existence of the program, and not for endlessly repeating over the next three years that the president had abused his office by authorizing the program. The Times said yesterday that the ruling "may offer legal credence to the Bush administration's repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping." But today, Times columnist Paul Krugman demands that Barack Obama launch an investigation into the Bush administration's "torture and illegal wiretapping." It's a joke. Democrats, including Obama, have demagogued this issue with no less enthusiasm than the press. Now that the matter has been settled in the president's favor, and now that the Democrats hold both the presidency and the responsibility for protecting this country from attack, one hopes Obama will act as "energetically" as previous presidents have, including Bush, and not like the carping caucus of Democrat senators he is leaving behind. Update:A friend writes in:
The initial NYT report got it wrong: the court did not reach the question of whether the president has inherent constitutional authority to conduct such surveillance in the face of FISA restrictions. The NYT got an intelligence-and-law-related story wrong? Go figure.
For more see " Wiretap Vindication" in today's Journal. The paper explains that while the decision "applies only to the stopgap FISA measure in place between 2007 and 2008, it sets a precedent."