FISA? Mine Is The Master Card

I've read in a couple places today that the big story behind the Bush administration's authorization of the use of NSA wiretaps to monitor the international communications of American citizens is that the New York Times has been sitting on the story for a year. That begs for an explanation . . . but the big story behind the secret authorization really is that the Bush administration has put aside the rule of law.

Also not the big story but really quite significant is the fact that, given a year to put together so much as a press release, the Bush administration did not have a pat answer ready in the wake of this story. Now, Bush's answer ("There is a difference between detecting so we can prevent, and monitoring") comes close to a reading of the Foreign Intelligence Surveillance Act (FISA) that says that Bush didn't order subordinates to break the law. (Close, if you grant President Bush a command over the English language language that he notably lacks. The distinction between "detecting to prevent" and "monitoring" amounts to different flavors of administration Kool-Aid. But in form, at least, the President is saying that the law concerns a but he's doing b.)

Jacob Sollum links to an NRO piece that provides exactly the sort of explanation I would have expected: that FISA grants an exception to the prohibition against eavesdropping on Americans' phone calls if some bad shit is going down. Also senseless—is the NSA going to put out a wiretap when bad shit is obviously not going down?—but still an argument that the war on terror falls in line with other longtime American favorites like the separation of powers and U.S. Constitution.

[UPDATE: "[I]s the NSA going to put out a wiretap when bad shit is obviously not going down?" I asked; the FBI answers.]

But that's simply not what other Bush administration officials are saying, Kevin Drum outlines. Attorney General Alberto Gonzales's answer really does amount to: We wanted to change the law to keep this domestic espionage program in the mix, but we got the impression that the assembled representatives of the United States' citizenry wouldn't go for it . . . so we usurped that power from the legislative and judicial branches.

Like so many things about the war on terror, it's not unreasonable for the government to want to listen in on conversations between citizens at home and potential agents abroad, and the laws should reflect those new powers enough American citizens are willing to grant them. But when the Bush administration forthrightly admits that they're not doing the following-the-laws song and dance any longer, but then lacks the courtesy to lie outrageously about their secret espionage programs, I wind up feeling like I must be wearing a stovepipe hat's worth of tinfoil. And worse still—sympathizing with proponents of small government!

But it's nice to have that Harriet Miers mystery sewn up, anyway. That call makes perfect sense now.