In Sunday talk show appearances, Ms. Rice said the program was intended to eliminate the "seam" between American intelligence operations overseas and law enforcement agencies at home.Obviously, there is a tremendous amount of controversy about whether these justifications are sufficient. You can say the President ought to have had specific authorization from Congress for what he did, and you might imagine a court sorting through the problem, looking at the legislation that does exist and examining whether the President did things that go beyond that legislation and, if he did, whether he has freestanding executive powers to support his actions. However, what is needed now is for Congress to examine the problem and take a position in response. And, indeed, Congress will do that, with hearings beginning soon:
"One of the most compelling outcomes of the 9/11 commission was that a seam had developed," Ms. Rice said on "Meet the Press" on NBC. "Our intelligence agencies looked out; our law enforcement agencies looked in. And people could - terrorists could - exploit the seam between them."...
Ms. Rice also said Mr. Bush decided to skirt the normal process of obtaining court-approved search warrants for the surveillance because it was too cumbersome for fast-paced counterterrorism investigations....
Under the Foreign Intelligence Surveillance Act of 1978, or FISA, the Federal Bureau of Investigation and the National Security Agency must obtain search warrants from a special court before conducting electronic surveillance of people suspected to be terrorists or spies. Ms. Rice said the administration believed that it needed greater agility in investigating terrorism suspects than was possible through that process.
"These are stateless networks of people who communicate, and communicate in much more fluid ways," she said.
Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Senate Judiciary Committee, said he was not certain whether the eavesdropping program was legal. He said he expected to hold hearings on it early next year.Members of Congress were briefed about the program in the past and did not see fit to take a position about it one way or the other. They were content to let the President act and but feel pressured to do something now that the program is no longer secret. Let's see what they do.
On CNN on Sunday, Mr. Specter struck a cautious tone. "Let's not jump to too many conclusions," he said. "Let's look at it analytically. Let's have oversight hearings, and let's find out exactly what went on."
"Whether it was legal, I think, is a matter that has to be examined," Mr. Specter said. "When you deal with issues as to legality, what advice the president got from the attorney general and others in the Department of Justice, that's a matter within the traditional purview of the Judiciary Committee."
We have a developing conflict between Congress and the Presidency. Congress can decide if it stands in opposition to intercepting these phone calls without a warrant. There is no need for courts to become involved in any asserted separation of powers problem until Congress takes a position. The legal question whether separation of powers has been violated at this point is complicated and interesting, but there is no reason for any court to answer it, when Congress is able to go on record about whether it wants the President to be able to do these things or not.
So, I look forward to the hearings, which I hope will cover the question of who blew the secret and why.
UPDATE: In a press conference today, President Bush defends what the NYT refers to as his "U.S. Spy Program."
ANOTHER UPDATE: Orin Kerr has a long post that tries to begin to untangle the difficult legal threads of constitutional and statutory law. He concludes that "the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act." I think that at the very least fair-minded observers should see that the problem is complex. Cries that the program is blatantly unconstitutional (or obviously constitutional) should be recognized as unhelpful.