Ann Althouse seems to think this is a conflict between the Congress and the Presidency that need not be sorted out by the courts. She asserts that "Congress can decide if it stands in opposition to intercepting these phone calls without a warrant."
I can't possibly agree. Congress has spoken, in 1978 with FISA. Only the courts can settle whether the executive branch has violated that law.
How can Congress even be relied upon to decide a question when Congress itself is a political body?
No, this is for the courts to decide.
I'm much more impressed by
Stephen Baibridge's post at ProfessorBainbridge.com. Most quotable:
"Coercive interrogations. A gulag of secret prisons. And now warrantless surveillance. We're supposed to be better than this."
"Of the Founders who pledged "their lives, their fortunes and their sacred honor" as signers to the Declaration of Independence, five were captured as traitors and tortured before they died; twelve had their homes ransacked and burned; two lost their sons in the Revolutionary War; another had two sons captured; and nine died from wounds or the hardship of the war. But too many want to trade their sacrifices away for a mess of security pottage.
"It's enough to make me think about making a Christmas donation to the ACLU."
I will if you will, Professor Bainbridge. In fact, I'm doing it right now at the
ACLU website. I invite others to do so.
Just learned: Professor Orin Kerr
weighed in on the legality of the NSA warrantless wiretaps on the
Volokh Conspiracy. He seems to think that Bush's legal arguments are constitutionally valid but probably not justifiable under the Authorization to Use Miltary Force and, more importantly, likely illegal under FISA. The argument is sound, although I have trouble with the way he got past the Fourth Amendment using border searches. Still, it's got intellectual honesty going for it.
Glenn Reynolds of
Instapundit passes off to the aforementioned Orin Kerr but does provide a good link to
a post by Marty Lederman on
Balkinization that stresses Sen. Feingold's earlier point that Bush's claim during this morning's press conference that he has authority to do
pretty much anything is absurd on its face when made in concert with his vilification of senators who filibustered the Patriot Act reauthorization. If he has the power to do
pretty much anything as president, then why he does he need the Patriot Act at all?
Lederman
follows up craftily with a deconstruction of AG Gonzales' argument in his press conference. Pretty peppery stuff.
So far, in the case of Bush v. Law, it looks like law is winning. Now, who's going to confront Bush? Somebody must.