Earlier this week George Will argued that President Bush should have asked Congress for permission to carry out warrantless eavesdropping of Americans. He is confident that Congress would have changed FISA to approve the program:
Congress, if asked, almost certainly would have made such modifications of law as the president’s plans required.
Just one teensy weensy problem: the NSA program was (and still is) classified. Is Will suggesting that Bush could have requested the authority he needed without revealing the existence of the NSA program? Or does he think Bush should have trusted 535 members of Congress and their staffers to keep the program secret?
On those key questions, Will is silent.
Will goes on to say that the key legal brief about the NSA program written by former deputy assistant attorney general John Yoo “should be declassified and debated.”
Even if that means disclosing technical details about the program that would help al Qaeda evade surveillance?
Will not only does not answer the question, he doesn’t even bother to address it, as if disclosing highly classified information about our intellgience-gathering techniques is a niggling detail that doesn’t deserve even the slightest acknowledgement.
It’s the sort of unreality-based thinking one expects from Molly Ivins or a Daily Kos diarist, not the nation’s premiere conservative columnist.
National Review’s editorial on the matter, by contrast, rises to the occasion. Will should give it a read and get out of September 10 America. An excerpt:
We are once again living in September 10 America. The signs are all around us: Congress’s acting to neuter interrogations of terrorist detainees; the Senate’s filibustering the reauthorization of the most important piece of counterterrorism legislation since 9/11, the Patriot Act; and now the controversy over National Security Agency intercepts of conversations between persons in the United States and suspected al Qaeda operatives overseas.
The New York Times ignited the firestorm last Friday, of course, with a front-page report on how President Bush has authorized the eavesdropping on conversations without obtaining warrants under the Foreign Intelligence Surveillance Act. Democrats are rushing to accuse Bush of breaking the law and are even flirting with the I-word — impeachment — their favorite fantasy of the moment. While there is much yet to be learned about the NSA program, it seems very likely that no laws were broken and that President Bush was acting responsibly in a context where we are fighting a fast-moving, loosely organized enemy that uses the wonders of modern communications technology to aid its mass murder. The president still has preventing another September 11 foremost on his mind, even as much of the rest of political culture has lapsed back to September 10, when we hamstrung our own surveillance and law-enforcement capabilities in blissful unawareness of the enemy that was about to slaughter 3,000 Americans….
…To the questionable nature of the FISA warrant requirement, considerations of sheer volume must be added. Each application for a warrant is an extensive process, requiring rungs of internal Justice Department review before presentation to the FISA court. Even back in 1978 — before the advent of the new kind of war in which we now find ourselves — Congress recognized that this process would be impracticable during wartime crises, with their need for increased surveillance. It provided a window — albeit a narrow one — for the president or the attorney general to order searches without warrants during the first fifteen days after a declaration of war (during which time Congress could take appropriate action to ease FISA restrictions, if appropriate). Such a wartime scenario is a case in which the government has an unassailable legal justification for seeking a FISA warrant; but, even so, Congress acknowledged that hewing to the FISA process could endanger the nation’s capacity for self-defense, and provided an alternative.
This, then, is the backdrop for the post-9/11 exigencies and their fallout: circumstances in which the president’s constitutional power and duty were broader than FISA’s statutory authority; in which the application of FISA may have been legally unnecessary (a matter on which it is impossible at this point to judge, because the NSA monitoring is — and should remain — highly classified); and in which the imperative to react swiftly to torrents of threat information might have been fatally undermined by saddling each of hundreds of surveillance initiatives with the laborious FISA application process.
How should the government have dealt with this unprecedented threat environment — an environment in which, unlike in past wars, our civilian centers are the enemy’s desired targets, and in which failure to act can mean death on a massive scale? The president’s response seems entirely justifiable: directing that intelligence be acquired with due speed; bypassing the court process as unduly burdensome and, perhaps, a hindrance on his constitutional obligations; but ensuring that the pertinent oversight committees of Congress and the bipartisan leadership of both houses were notified; and, to the extent intelligence yielded by the NSA efforts was relevant to ongoing FISA investigations, forthrightly disclosing the NSA operation to the secret court.