but it seems to me at least based upon the description in the article that the administration's theory is easily take apart-able. here's the quick version:
the administration's argument seems to have two steps:
(1) FISA is not the exclusive basis for conducting wiretaps of people in the u.s., and
(2) the 2001 congressional authorization to use force gave the president the power to authorize warrantless wiretaps
i think both steps do not hold up. though most of the argument seems to be over step #2 (i.e. whether an authorization to use military force against a foreign country also gives permission to do a warrantless search of a telephone call in the u.s.), step #1 is actually even weaker. the existing wiretap law states as follows:
...the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.18 U.S.C. 2511(f)
the only way to get around that is to argue that the authorization to use force repealed section 18 U.S.C. 2511(f). but generally courts don't go for implicit repeals--they require that the legislation show either an unmistakable intent to amend out that provision or that the new legislation cannot be read in a way other than to repeal the earlier law. neither is the case here. any casual reader of both section 2511(f) and the authorization to use force would neither see any mention of FISA nor anything that creates any kind of logical conflict between the text of the authorization and section 2511(f).
the administration's argument, at least as it is described in this morning's newspaper, simply does not work.
