HH: John Eastman, a question for you. Does the president of the United States, in time of war, have the authority to order the surveillance of our enemies abroad in touch with their agents operating in the United States?
JE: Of course.
HH: Does he have that authority even if those agents operating in the United States are American citizens?
JE: Yes, he does.
HH: And does he have that authority, even if he does not have a warrant to conduct that surveillance?
JE: Yes, he does, and look. This authority comes directly from Article 2 of the Constitution. Every president going back to George Washington has recognized this. The president that signed the foreign intelligence surveillance act in 1978 specifically, said that of course, this can't be considered a constraint on the powers that the president has directly under Article 2. That president was Jimmy Carter, not Ronald Reagan or George Bush. This is a pretty well-established incident of war. And what's most surprising to me is that what the New York Times, and whoever in the Department of Justice, or in the National Security Agency leaked this ongoing tool in that war, have very likely committed treason. I mean, it's tantamount to somebody in England discovering that Churchill had...and the Churchill administration had figured out the enigma code for the German coding maching, and had revealed that, so that that tool could no longer be used in the prosecution of the war. This really is over the top.
Professor Erwin Chemerinsky disagrees, of course, but the breathless calls for impeachment and assertions of dictatorships in the making are just silly, and transparently so. On Sunday I posted on the Keith case and the undeniable fact that the Supreme Court has refused to assert that there is a warrant requirement for surveillance of the agents of foreign powers operating in the United States even if those agents are United States citizens. Here's the key admission from Erwin:
HH: So Erwin Chemerinsky, in the case of United States V. United States District Court, did the Supreme Court, in Justice Powell's opinion, rule that it was specifically not ruling on the president's authority to conduct surveillance of foreign powers in contact with their agents in the United States, even if those agents were citizens?
EC: That's correct, though of course....
Powerline has much more, including commentary on the FISA court's presiding judge's move to arrange a special meeting of the court to receive a briefing on the NSA program. The Washington Post's account is full of the stuff that will attract the attention of every power hostile to the United States and interested in our country's technological capabilities as well as the names of various judges involved in the oversight of those capabilities. This cavalier approach to the most sensitive matters concerning our intelligence operations is stunning, and when the next 9/11 Commission meets to sift through the devastation of the next 9/11 and ask why, pencil in a few days of hearings on how the MSM and leakers grinding various axes compromised the methods and sources of the American intelligence community.
On Tuesday's program, Newsweek's Jonathan Alter asserted that the Valerie Plame "outing" was a much more serious matter than the original leak of the NSA program to the New York Times. I don't doubt Alter really believes that absurd position, but ignorance among journalists as to what they are giving away should not shield the leakers. From my interview with Senator John Cornyn yesterday:
HH: Should the leakers be prosecuted, Senator Cornyn?
HH: And should any investigation be done under seal in the Senate? Or in open hearing?
JC: Well, I don't know how we can have an open hearing on all aspects of this, since it's a highly classified program. That's one reason why I spoke out about the New York Times compromising this, letting our enemies know exactly what we're doing.
We are watching a meltdown unimaginable on 9/12: The left wing MSM and the partisan opponents of George Bush who couldn't beat him in November of 2004 are carrying on their campaign against the president and endangering Americans to do so. They went Ahab some time ago, but the evidence of their collective derangement is now undeniable.