The people's attorney

Star-Telegram | Editorials:

“[Attorney General Alberto] Gonzales has said that when he testifies before the [Senate Judiciary] committee, he will discuss only the legal justification of the warrantless surveillance and nothing about operational details. If the justification he cites is what we've already heard, it is likely to be considered woefully inadequate.”

Ed Cognoski responds:

The President's approval of the NSA's warrantless wiretapping program was illegal, violating the provisions of the 1978 Foreign Intelligence Surveillance Act (FISA). That act prohibits electronic surveillance of persons in the United States except as authorized by statute.

The President's defense is based on the argument that the Authorization to Use Military Force (AUMF) is the statute that authorized such surveillance. The AUMF states:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The Supreme Court has already ruled, in Hamdi v. Rumsfeld, that indefinite detention for the purpose of interrogation is not authorized by AUMF, although detention to prevent a combatant from returning to the battlefield is. Although there is room for legal debate, wiretapping is much closer to interrogation than incarceration, so the Hamdi precedent would seem to indicate that AUMF does not provide the President the legal statute needed to violate FISA.

In the end, the President's actions could be driven more by principle or politics than by legal reasoning. The President believes, on principle, that his primary duty is to protect and defend the United States of America. If he must bend or ignore certain laws to do so, he will. And with the Congress firmly in the hands of his own political party, he knows that the only power the Congress has to overrule him, namely impeachment, is simply not an option. No Congress controlled by the President's own political party is going to consider impeachment because the President erred on the side of protecting America against foreign enemies in time of war.

Expect Secretary Gonzales to split hairs and draw fine lines in making the strongest legal case he can. Expect Democrats to decry his explanations as woefully inadequate. Expect Republicans to wring their hands but say draconian action is needed in the name of national security. Expect both sides to be part right. In the end, expect the President to get it his way.