Bush Vindicated on Wiretaps

When Barack Obama, at his inauguration, took a smarmy swipe at President Bush on the issue of the “rule of law,” he did what liberals typically do.

He assumed that the law means what he wants it to mean.

But Bush, not Obama, was right about the law, at least according to the Foreign Intelligence Surveillance Court of Review.

From the Wall Street Journal:

Ever since the Bush Administration’s warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.

In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government’s Constitutional authority to collect national-security intelligence without judicial approval. The case was not made public before yesterday, and its details remain classified. An unnamed telecom company refused to comply with the National Security Agency’s monitoring requests and claimed the program violated the Fourth Amendment’s restrictions on search and seizure.

But the Constitution bans only “unreasonable” search and seizure, not all searches and seizures, and the Fourth Amendment allows for exceptions such as those under a President’s Article II war powers. The courts have been explicit on this point. In 1980, the Fourth Circuit Court of Appeals held in Truong that “the Executive need not always obtain a warrant for foreign intelligence surveillance.” The FISA appeals court said in its 2002 opinion In re Sealed Case that the President has “inherent authority to conduct warrantless searches to obtain foreign intelligence information” and took “for granted” that “FISA could not encroach on the President’s constitutional power.”

Of course, the Clinton administration claimed the authority of conduct searches connected with national security without a warrant.

But the media somehow didn’t remember this when it went ballistic over Bush’s supposed “illegal” wiretapping.

Lesson: the law doesn’t necessarily mean what you want it to mean. To use the concept “rule of law” to bash somebody who simply disagrees with you on policy is the ultimate show of contempt for that concept.