If I Admitted It, It Can't Be Illegal


The other day, President Bush called it "amazing" to be accused of breaking the law by authorizing the NSA's warrantless wiretaps. "If I wanted to break the law," he asked during a speech at Kansas State University, "why was I briefing Congress?"

First of all, he wasn't "briefing Congress." He was briefing eight members of Congress, and exactly how much they knew about the surveillance is a matter of dispute. They were, in any case, not at liberty to discuss this classified information with anyone else, let alone bring the matter up for a vote. Bush was not asking for permission, even by silent acquiescence; quite the contrary, he insists that such permission was not necessary. He may sincerely believe that, which would explain why he was willing to tell congressional leaders and four members of the House and Senate intelligence committees about the program. He may sincerely believe he has the constitutional authority as president to do whatever he thinks is necessary to fight terrorism, even when it requires flouting the explicit will of Congress, as expressed in statutes such as the Foreign Intelligence Surveillance Act and the recently passed ban on torture. But that does not mean he's right.

On that question, it's encouraging that conservative commentator Bruce Fein, who served in the Justice Department in the Reagan administration, continues to sharply criticize the Bush administration's legal defenses of the wiretaps, saying the "justifications oscillate between the risible and the chilling." It is equally encouraging that The Washington Tmes continues to run columns by critics of Bush's power grabs such as Fein and Nat Hentoff (and me), along with plenty of predictable defenses.