09 Jan 2006

The Scandal That Wasn’t

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J. Peter Mulhern, at American Thinker, debunks the premises underlying the fabricated NSA Flap:

The NSA flap has very little potential to hurt President Bush and every serious player among his enemies must know that…

You can’t sustain a scandal by revealing the shocking truth that the President of the United States is doing his job. He isn’t ashamed of gathering intelligence on our deadly enemies and nobody who doesn’t already loathe President Bush will blame him for it. It takes some scandalous material to make a scandal. There may, for example, be a scandal when the President sodomizes an intern in the Oval Office. Whatever the President and the First Lady may do in the family quarters after hours, it isn’t going to cause a scandal.

But, but, I hear them sputter, the President violated the law. He bypassed the checks and balances Congress wisely provided when it established the secret FISA court. Isn’t that enough to get him in serious hot water?

No. All the arguments about whether FISA applies to wartime intelligence gathering are so much pettifogging pedantry. FISA is a model of opaque draftsmanship. Don’t take my word for it, try to read it yourself.

Good luck.

It is certainly possible to read FISA as attempting to limit President Bush’s power to intercept al Qaeda communications. It is also possible to read it more modestly. In the last analysis, however, FISA is beside the point.

If FISA tries to restrict the President’s power to spy on our enemies during a state of war that Congress itself proclaimed then FISA is blatantly unconstitutional. Only a fool or a traitor would suggest that Congress can constitutionally require that the President play “Mother-may- I” with a motley collection of judges before intercepting enemy communications in wartime.

Congress can no more empower judges to make decisions about how we gather intelligence than it could empower them to decide what targets our Air Force should bomb or what streets our troops should patrol.

There is nothing complicated about this. The President is Commander in Chief. He makes the military decisions. He decides, with the advice of his subordinate commanders, when and where the United States government should gather intelligence because that is a military decision…

FISA may instruct the President to consult a panel of judges before listening to enemy communications. If it does it is unconstitutional, null, void and asinine.

When Congress violates the Constitution by trying to hamper the legitimate exercise of executive authority the President has both the right and the duty to ignore it. Which brings us to the second reason that the NSA nonscandal will sink without a trace.

There won’t be any riveting hearings, trials or judicial decisions to keep the NSA pot boiling because the President’s determination about the scope of his own constitutional authority to gather military intelligence is not subject to any meaningful review. With the advice of the Attorney General and his other lawyers the President has decided that he is constitutionally empowered to authorize the NSA program which is currently under attack. For all practical purposes that decision is final.

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