This is certainly the best defense I've yet read of why the 1978 FISA law could do with an overhaul, given the advance of information technology. No doubt Karl Rove is already performing rhetorical calisthenics. What the op-ed doesn't do convincingly, however, is explain why the Bush administration, after 9/11, couldn't have asked Congress to amend the law to make surveillance of al Qaeda more efficient and effective. Ms Toensing's answer: the Dems would engage in "political posturing" and then this:
To have public debate informs terrorists how we monitor them, harming our intelligence-gathering to an even greater extent than the New York Times revelation about the NSA program. Asking Congress for legislation would also weaken the legal argument, cited by every administration since 1978, that the president has constitutional authority beyond FISA to conduct warrantless wiretaps to acquire foreign intelligence information.
Please. We live in a democracy. Debating the government's ability to tap Americans' own phones without warrants is integral to any meaning of that word. And the final argument is completely circular. If the government's ability to tap phones without a warrant is due to "a constitutional authority beyond FISA," why bother explaining the rest? The truth, sadly, is that the Bush administration could have gotten Congress to fix FISA but decided to ignore the legislative branch. It has acted in this case as it has acted throughout the war: contemptuous of criticism, dismissive of democracy, and impervious to correction. And that's one reason why we haven't had as much success as we might have hoped for. The president is always hailing the value of democracy abroad. One of these days, he'll find something good to say about it at home.
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