It is also compelled by common sense. In the days and weeks after the 9/11 attacks, the administration had reason to fear that more attacks might be imminent. It also had cause for concern that the Foreign Intelligence Surveillance Act—badly outdated by new communications technologies and by the vastly enhanced terrorist threat—might make it unduly difficult to find the plotters.
The commonsensical response to this situation was pithily (and thus anonymously) articulated to me by a senior Clinton administration lawyer: "If I had been advising the president on September 12, the legal doctrine that I would have invoked is, 'Mr. President, f*** FISA.' "
So perhaps we should not fault either the National Security Agency's immediate initiation of new surveillance that stretched its previously cautious interpretation of FISA or the president's subsequent order that the agency disregard some of FISA's clear requirements.
Remaining secret are the details, the precise timing, and Bush's exact actions. But it appears likely that the administration's timetable was too fast to allow for advance consideration by Congress. Even the rushed enactment of the USA PATRIOT Act (including several FISA amendments) took 46 days, during which the NSA should have been pulling out all the stops to find terrorists.
But contrary to Bush critics such as Sen. Russell Feingold, D-Wis., and to many Bush defenders, the premise that the president's emergency powers justified disregarding FISA in the wake of the 9/11 attacks does not require the conclusion that he was free to disregard FISA forever.
Feingold, who claims that the Bush program was illegal from the start, has suggested that otherwise, "FISA is a dead letter, all of the supposed protections for civil liberties contained in the reauthorization of the PATRIOT Act ... are a cruel hoax, and any future legislation we might pass regarding surveillance or national security is a waste of time and a charade."
Many Bush defenders use somewhat similar logic. They leap from the premise that Bush was surely right to trump FISA after 9/11 to their usual conclusion that he has virtually unlimited "inherent" wartime power to disregard any and all laws that he considers inconvenient.
(Bush defenders also argue that Congress's post-9/11 vote authorizing a military response implicitly amended FISA to give him sweeping surveillance powers.)
So it is that Feingold and other critics, fearing that the president will become too strong for years or decades to come, would make him too weak to deal effectively with emergencies. And Bush's defenders, fearing that the president will be too weak to deal with emergencies, would give him virtually unlimited powers for as long as he says that the nation is at war.
The emergency-powers principle should quiet critics' fears by making it clear that allowing the president extraordinary powers in an emergency does not mean that he retains those powers after Congress has had time to consider a response.