| Two questions follow. Did the president break the law? And why did he do what he did? The answer to the first question seems self-evident. The answer to the second does not. The Foreign Intelligence Surveillance Act of 1978 sets out the rules for monitoring electronic communications. Those rules are clear. Except during the first 15 days after a declaration of war by Congress, the executive branch cannot monitor electronic communications that originate in the United States without obtaining a warrant from the Foreign Intelligence Surveillance Court. Members of the Bush administration may have thought FISA's warrant requirement foolish or even "quaint" in the days after 9/11. They may have thought -- as they apparently did -- that the warrant requirement represented a constitutionally impermissible limit on the president's power as commander-in-chief. There were ways to address such concerns. The administration could have gone to Congress to ask that FISA's warrant requirement be amended. Or the administration could have gone to the courts, asking that the warrant requirement be overturned. It did neither. The administration simply ignored the other branches of government and took it upon itself to do what it wanted to do. |
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