Ours is a government of limited power. We learn in elementary school the concept of checks and balances. Those checks do not vanish in wartime; the President's role as Commander in Chief does not swallow up Congress's powers or the Bill of Rights. Given the framers' skepticism about executive power and warmaking--there was no functional standing army at the beginning of the nation, so the President's powers as Commander in Chief depended on Congress's willingness to create and expand an army--it is impossible to find in the Constitution unilateral presidential authority to act against US citizens in a way that violates US laws, even in wartime. As Justice Sandra Day O'Connor recently wrote, "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens."

The second legal argument in defense of Bush's warrantless wiretaps rests on an erroneous statutory interpretation. According to this argument, Congress authorized the Administration to place wiretaps without court approval when it adopted the 2001 resolution authorizing military force against the Taliban and Al Qaeda for the 9/11 attacks. In the first place, the force resolution doesn't mention wiretaps. And given that Congress has traditionally placed so many restrictions on wiretapping because of its extremely intrusive qualities, there would undoubtedly have been vigorous debate if anyone thought the force resolution would roll back FISA. In fact, the legislative history of the force resolution shows that Congress had no intention of broadening the scope of presidential warmaking powers to cover activity in the United States. According to Senator Tom Daschle, the former Senate majority leader who negotiated the resolution with the White House, the Administration wanted to include language explicitly enlarging the President's warmaking powers to include domestic activity. That language was rejected. Obviously, if the Administration felt it already had the power, it would not have tried to insert the language into the resolution.

What then was the reason for avoiding the FISA court? President Bush suggested that there was no time to get the warrants. But this cannot be true, because FISA permits wiretaps without warrants in emergencies as long as court approval is obtained within three days. Moreover, there is evidence that the President knew the warrantless wiretapping was illegal. In 2004, when the violations had been going on for some time, President Bush told a Buffalo, New York, audience that "a wiretap requires a court order." He went on to say that "when we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

Indeed, the claim that to protect Americans the President needs to be able to avoid court review of his wiretap applications rings hollow. It is unclear why or in what way the existing law, requiring court approval, is not satisfactory. And, if the law is too cumbersome or inapplicable to modern technology, then it is unclear why the President did not seek to revise it instead of disregarding it and thus jeopardizing many otherwise legitimate anti-terrorism prosecutions. His defenders' claim that changing the law would have given away secrets is unacceptable. There are procedures for considering classified information in Congress. Since no good reason has been given for avoiding the FISA court, it is reasonable to suspect that the real reason may have been that the wiretaps, like those President Nixon ordered in Watergate, involved journalists or anti-Bush activists or were improper in other ways and would not have been approved.

It is also curious that President Bush seems so concerned with the imaginary dangers to Americans posed by US courts but remains so apparently unconcerned about fixing some of the real holes in our security. For example, FBI computers--which were unable to search two words at once, like "flight schools," a defect that impaired the Bureau's ability to identify the 9/11 attackers beforehand--still haven't been brought into the twenty-first century. Given Vice President Cheney's longstanding ambition to throw off the constraints on executive power imposed in response to Watergate and the Vietnam War, it may well be that the warrantless wiretap program has had much more to do with restoring the trappings of the Nixon imperial presidency than it ever had to do with protecting national security.

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