There’s a huge rumpus about the disclosure that the NSA intercepted various communications within the US. Other people more knowledgeable than I have discussed the legality; I want to add one small point to the discussion.
First, I’m not outraged that they listened in. I hope they got useful intel.
But second, the boneheaded legal and administrative wrapper around this infuriates me and more, it undercuts the prosecution of the war.From what I can tell, the law (FSIA) allows the instant interception of communications – as long as, within 72 hours, a judge approves it. the track record of the judges in approving these things is pretty clear – they approve them. Per Orin Kerr, over at Volokh, what they did probably doesn’t pass the FISA test, although there may be other legally sustainable arguments that defend the Administration’s position. That’s not good enough when there is a clear and clearly legal path to the same result.
Why the heck didn’t the Administration go get those approvals?
It bespeaks either an insane arrogance, or more likely a sense of beleaguered isolation.
Both of those are good explanations of why it is that Bush has done so little, so late to maintain support for the war, and here I have been and am prepared to continue to be critical.
What is inexcusable to me is that no one inside the White House thought for a moment about the impact of revelations like this one on support for the war. It is a truism that this war will be won or lost here, at home, in our willingness to patiently move forward toward success.
Whatever undercuts that patience – whether the mutterings of Michael Moore or the blind arrogance of Administration officials who don’t understand how bad this makes them and the war effort look – deserves to be pushed back.
I don’t think the Administration has been competent enough in key areas like this. Sadly (or gladly, if you’re a Republican) my party doesn’t seem prepared to do any better.