One Branch Is So Much More Efficient Than Three

Over at National Review Online, James Robbins argues that the National Security Agency's warrantless eavesdropping on the international communications of U.S. citizens and residents is authorized by the Foreign Intelligence Surveillance Act, which seems to require warrants in this sort of situation. If I'm understanding him correctly, the thrust of his argument is that FISA allows an exception to the warrant requirement for communications "exclusively between or among foreign powers," which include international terrorist organizations. Although the law also stipulates that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party," Robbins says people with ties to terrorist groups do not count because they are "agents of a foreign power."

It seems to me this exception, as interpreted by Robbins, swallows the whole law. If the communications of anyone with suspected ties to terrorist groups or other foreign powers can be monitored without a warrant, what is the point of the procedures laid out in the rest of the statute for getting permission from the Foreign Intelligence Surveillance Court?

The Bush administration, for its part, does not seem to be arguing that the eavesdropping was authorized by FISA itself. Instead it says Congress authorized the wiretaps when it gave the president permission to use "all necessary and appropriate force" against the nations, groups, and individuals responsible for the September 11 attacks. It's doubtful that's what members of Congress thought they were doing. Sen. Russell Feingold (D-Wis.), who voted for the resolution, says "nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror…that this was an authorization to allow a wiretapping against the law of the United States."

But according to the Bush administration, it does not really matter what Congress intended, because the president's inherent powers as commander in chief of the armed forces include the authority to override FISA and any other statute that purports to prevent the NSA from doing what it did (and continues to do). This is the argument that seems most consistent with Bush's M.O. In areas such as military tribunals, detention of "enemy combatants," and national security letters, he has sought to cut out the legislative and judicial branches from prosecution of a never-ending war with targets he himself defines and tactics he alone approves. Those who have complete confidence in his good faith and good judgment may not have a problem with this unilateral approach, but they should, unless they think their guys are going to be running the show forever.