Presidents always jealously guard executive authority. And Congress always wants to challenge the scope of that authority. This tug-of-war is a bipartisan and constant feature of the American system of separation of powers. President Bush's circumvention of the FISA law is a classic separation-of-powers dispute in the area in which these powers are most in dispute -- war powers.
Consider the War Powers Resolution passed over Nixon's veto in 1973. It restricts, with very specific timetables, the president's authority to use force. Every president since Nixon, Democrat and Republican, has regarded himself not bound by this law, declaring it an unconstitutional invasion of his authority as commander in chief.
Nor will it do to argue that the Clinton administration ultimately accepted the strictures of FISA law after a revision was passed. So what? For the last three decades, presidents have adhered to the War Powers Resolution for reasons of prudence, to avoid a constitutional fight with Congress. But they all maintained the inherent illegitimacy of the law and the right to ignore it. Similarly, Clinton's acquiescence to FISA in no way binds future executives to renounce Clinton's own claim of ``inherent authority'' to conduct warrantless searches for purposes of foreign intelligence.
Attorney General Alberto Gonzales chose a different justification for these wiretaps: They were covered by the congressional resolution shortly after 9/11 authorizing the use of ``all necessary and appropriate force'' against al Qaeda. Gonzales' interpretation is based on a plurality Supreme Court opinion written by Sandra Day O'Connor that deemed legal the ``executive detention'' of U.S. citizen and enemy combatant Yaser Hamdi. ``Detention'' is an obvious element of any authorization to use force. Gonzales argues that so is gathering intelligence about the enemy's plans by intercepting his communications.
I am skeptical of Gonzales' argument -- it implies an almost limitless expansion of the idea of ``use of force'' -- while the distinguished liberal law professor, Cass Sunstein, finds it ``entirely plausible'' (so long as the wiretapping is limited to those reasonably believed to be associated with al Qaeda). Sunstein maintains that ``surveillance, including wiretapping, is reasonably believed to be an incident of the use of force'' that ``standardly occurs during war.''
Contrary to the administration, I also believe that as a matter of political prudence and comity with Congress, Bush should have tried to get the law changed rather than circumvent it. This was an error of political judgment. But that does not make it a crime. And only the most brazen and reckless partisan could pretend it is anything approaching a high crime and misdemeanor.