Illegal? Only If You Don’t Know What You’re Talking About

So the big news lately is about the wiretapping the Bush administration has been doing in relation to international phone calls involving al Qaeda. Libs are sprouting up all over the place like dandelions saying the taps were “illegal”.

Now they can spout off all they want without knowing any facts to back up their statements if they want. In fact, that seems to be their greatest, and perhaps only, talent. Why let facts get in the way of a good smear campaign? But over at OpionJournal.com, they’ve actually looked into the legality of such wiretaps, and found that the President does have such authority.

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President’s power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal “court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” And further that “we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

Of course, the Democrats claim to be “looking out for the little guy” and protecting civil liberties. Of course, when Bill Clinton was using Echelon and Carnivore to monitor ”everything from data transfers to cell phones to portable phones to baby monitors to ATMs” used by American citizens during the 90′s to conduct economic espionage against foreign businesses, the outrage was noticeably absent.

Here’s another excerpt from the Opinion Journal piece:

The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being “secret,” key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them.

Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear.

…

As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn’t get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap “gotcha,” the White House should release the names of every Congressman who received such a briefing.

I’m all in favor of that. I’d love to know how many of them going on talking heads shows now were fully cognizant of the events transpiring.

UPDATE: Via Drudge: It seems that not only was Clinton using the same tactics, but Jimmy Carter as well… Oh, the hypocrisy.

CLINTON ADMINISTRATION SECRET SEARCH ON AMERICANS — WITHOUT COURT ORDER

CARTER EXECUTIVE ORDER: ‘ELECTRONIC SURVEILLANCE’ WITHOUT COURT ORDER

Bill Clinton Signed Executive Order that allowed Attorney General to do searches without court approval

Clinton, February 9, 1995: “The Attorney General is authorized to approve physical searches, without a court order”

Jimmy Carter Signed Executive Order on May 23, 1979: “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”

WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also — in the delicate words of a Justice Department official — to “places where you wouldn’t find or would be unlikely to find information involving a U.S. citizen… would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order.”

Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president “has inherent authority to conduct warrantless searches for foreign intelligence purposes.”

Secret searches and wiretaps of Aldrich Ames’s office and home in June and October 1993, both without a federal warrant.