EMERGENCIES AND NON-EMERGENCIES….I’ve been waiting for a conservative to make a reasonable argument about President Bush’s secret spying program that isn’t just a regurgitation of the usual fatuous talking points (Clinton did it too, the constitution allows the president to do anything he wants, etc.), and Jonah Goldberg has done it:

From what we know, it sounds like the initial decision to be as aggressive as possible in rolling up al Qaeda was completely justified. Recall what it was like in the weeks and months after 9/11, when the death toll was still believed to be much higher than 3,000, anthrax was buzzing through the postal system, and an unknown number of sleeper cells existed on our soil….Speed was of the essence, and the system back then was not speedy.

….There’s very little an American president can’t do when there’s an immediate crisis. But as it became clear this war was going to be a marathon instead of a sprint, Bush should have figured out how to reinsert the rule of law into the process.

I think that’s exactly right. With the caveat that we still don’t know exactly what this program entails, it appears to be just the kind of thing people have in mind when they say that the executive branch should be given a lot of leeway during wartime because only the executive can act speedily enough when the country is under attack.

“Under attack” describes 9/11, and the president had every reason to suppose that those attacks might continue. If Bush had ordered the NSA to broaden its mandate immediately, and then gone to Congress a few weeks or a month later to get permanent authorization for a change in the law, I’d probably have no problem with it.

But that’s not what he did. In fact, he did just the opposite. He deliberately declined to ask the FISA court to authorize his program because he knew they’d turn him down. Likewise, he declined to ask Congress to authorize the program because after consulting with congressional leaders he concluded that Congress would turn him down too. But like it or not, once the initial emergency was past he no longer had the authority to act unilaterally. He’s our president, not our king, and even though he likes to style himself a “wartime president” he still has to obey the law. Somebody ought to remind him of that occasionally.

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