Pseudoscandal

OpinionJournal

Best of the Web Today - December 22, 2005
By JAMES TARANTO

Dems: Hear No Evil http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story

John Schmidt, who served as an assistant attorney general during the Clinton administration, weighs in with a Chicago Tribune op-ed on the wiretapping kerfuffle:

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President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents. . . .

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the . . . courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence . . . We take for granted that the president does have that authority."

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