Barking Up Every Tree

"In a little-remembered debate from 1994, the Clinton administration argued that the president has 'inherent authority' to order physical searches -- including break-ins at the homes of U.S. citizens -- for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own."

In American Prospect, Matthew Yglesias sees a constant bending of the law:

"Faced with the pesky need to get warrants . . . the Bush administration chose another path--they simply issued a directive saying the old policy was out and a new policy was in. On hand to help rationalize things was John Yoo, the very same lawyer who provided the rationalizations required when the president wanted to start ignoring domestic and international law with regard to torture without getting any of the laws changed.

"And if it was Yoo's work that made McCain's effort to close down Bush-created loopholes in torture law, then it's the continuation of the Yoo mentality that makes me pessimistic about how much good McCain will do. The president, quite clearly, didn't surrender to McCain's view at the end of last week because of a genuine change of heart. Instead, as in his previous surrender to the Arizona senator over campaign finance reform, he dropped what he had previously portrayed as a point of high principle for reasons of crass political expediency. Thus, we still have in office a president who believes in the utility and overriding moral necessity of torture, and a president who feels that--at least in matters of national security--he's not bound by the law."

Nonsense, says Power Line's John Hinderaker , who says there's a practical reason why President Bush can't first get court approval:

"The issue of speed is critical. When we capture a cell phone or laptop being used by a terrorist, it is usually because we captured or killed the terrorist. The amount of time we have to exploit the capture is very short. The terrorists will soon figure out that their confederate is out of business, and stop using his cell phone numbers and email addresses.

"So if we are to benefit from the capture, we must begin obtaining information right now . A delay of even a few days may render the information useless, as the terrorists will have realized that their colleague has been neutralized. And it is likely that the first hours or even minutes after we obtain a cell phone number or email address are most apt to yield helpful new information. So it is easy to see why going through the process needed to obtain a warrant from the FISA court would undermine the effectiveness of our anti-terror operations."

Washington Monthly's Kevin Drum quotes various defenses of the eavesdropping effort, but thinks there's more to it:

"None of these quotes makes sense if the NSA program involved nothing more than an expansion of ordinary taps of specific individuals. After all, the FISA court would have approved taps of domestic-to-international calls as quickly and easily as they do with normal domestic wiretaps. What's more, Congress wouldn't have had any objection to supporting a routine program expansion; George Bush wouldn't have explained it with gobbledegook about the difference between monitoring and detecting; Jay Rockefeller wouldn't have been reminded of TIA [a John Poindexter effort]; and the Times wouldn't have had any issues over divulging sensitive technology.

"It seems clear that there's something involved here that goes far beyond ordinary wiretaps, regardless of the technology used. Perhaps some kind of massive data mining, which makes it impossible to get individual warrants? Stay tuned."

Two top New York Times executives were subjected to a little high-level arm-twisting before publishing the spying article, reports Newsweek's Jonathan Alter :

"On December 6, Bush summoned Times publisher Arthur Sulzberger and executive editor Bill Keller to the Oval Office in a futile attempt to talk them out of running the story. The Times will not comment on the meeting, but one can only imagine the president's desperation.