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The Wall Street Journal editorial page has a great piece up today on explaining why the President’s critics are flat out wrong on the ‘eavesdropping’ scandal:
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.
Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear.
Read the whole thing, and also check out the very lengthy blogger reax link roundup over at Michelle Malkin’s , especially this link to a post by the Volokh Conspiracy’s Orin Kerr, who provides a legal analysis well worth reading.
By the way, the President’s ratings are up yet again.
More: Kevin Aylward at Wizbang writes:
The wisdom of a “black” operations like this (which dates back to the 1940′s) is up for debate, but trying to spin it as an invention of the Bush administration, or their use of it as “unprecedented” doesn’t jibe with history.
Yep. It smacks of political opportunism at its worst – just as this is.
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