Going down with the ship

If the Bush administration won’t even embrace the legal defense offered by its most ardent supporters, then you can be reasonably sure those supporters are wrong.

An example: On Wednesday, the Weekly Standard published a commentary by Edward Morrissey, of the conservative blog Captain’s Quarters, arguing that the no-warrant wiretaps by the National Security Agency are fully legal under the Foreign Intelligence Surveillance Act (FISA). Morrissey quotes extensively from FISA in an attempt to make the case that “FISA authorizes warrantless surveillance in its opening chapter.” Much of this has to do with the question of whether or not the wiretaps were used to spy on “U.S. persons” as defined under the law. Morrissey argues that they were not. He also writes:

Moreover, the NSA’s efforts did not take place in darkness. The FISA court did get informed of the issue, and the leaders of the oversight committees in both houses of Congress from both parties took part in the decision. It does not appear that the Bush administration sought to hide this from the other two branches of government, but sought to include them in the oversight of the new process as much as possible within the secrecy needed to conduct the program during wartime.

If one reads further into the Times‘s long and detailed article, the Bush administration received precedential decisions from courts that acknowledged the executive authority to wage war included a broader authority to set the parameters of espionage in order to guarantee security. Clearly, the administration has sought to comply with the letter of the law while getting the best possible information as quickly as it could to prevent another devastating terrorist attack.

This all sounds fairly reasonable — until you realize that the Bush administration itself isn’t buying it. Barton Gellman reports in today’s Washington Post that the White House is continuing to advance the argument that the no-warrant searches were authorized by Congress’ near-declaration of war, passed in the aftermath of the 9/11 attacks. Gellman adds that the latest iteration of this justification — in the form of a letter to Congress written by Assistant Attorney General William Moschella — acknowledges that President Bush’s October 2001 wiretapping order did not comply with the “procedures” of FISA, a law passed in 1978.

Sorry, Captain Morrissey, but it looks like you don’t know what you’re talking about. Moschella’s argument is that the White House is violating FISA, but that it’s all right because FISA was overridden by the war resolution. That is pretty much the opposite of what Morrissey wants us to believe.

As for the administration’s attempts to hang its legal hat on the war-resolution coat rack, former Senate Democratic leader Tom Daschle has an op-ed piece in today’s Post revealing that, at the time, the Bush administration actually did seek broad authority that would probably have legalized warrantless wiretaps — and that it was shot down. Daschle writes:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.

It’s becoming almost impossible to reach any conclusion other than this: Bush didn’t get what he wanted, so he broke the law.

Aye, aye, Captain?