IN the debate over whether the National Security Agency's eavesdropping violated the Foreign Intelligence Surveillance Act, we must not lose sight of the fact that the world we entered on 9/11 will require rewriting that statute and other laws. The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest....Well said.
This is not to play down the damage done to our war aims by the executive branch's repeated appearance of an indifference to law. A president does have an obligation to assess the constitutionality of statutes, but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting. Having said that, we also must not be so absorbed by questions of statutory construction that we ignore the revolutionary political and technological events that are transforming the world in which our laws must function.
January 30, 2006
Texas Lawprof Philip Bobbitt has a NYT op-ed on the NSA spying controversy: