The NY Times ignores the case law on NSA intercept question

Powerline:

Today the New York Times denounced the NSA's terrorist surveillance program in its usual hyperventilating style, in an editorial titled "Spies, Lies and Wiretaps". What was most striking to me about the Times' editorial, however, was that the paper doesn't actually want the Bush administration to stop the NSA's international surveillance. On the contrary: the Times' editorialists view the suggestion that the Democrats are opposed to such surveillance as libelous:

"President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," [Karl Rove] told Republican officials. "Some important Democrats clearly disagree."

Mr. Rove knows perfectly well that no Democrat has ever said any such thing....

So monitoring calls between al Qaeda operatives overseas and their American contacts is a good thing. The Times just wants the administration to use FISA orders all the time, as opposed to the vast majority of the time. What's more, the Times assures its readers that there is no obstacle to obtaining such orders, nor is there any perceptible inconvenience in doing so.

A casual observer would be forgiven for wondering what the fuss is about. If the Times is happy with what the administration is doing, but just wants it to follow a procedure that will yield exactly the same result with virtually no inconvenience, why is the paper so hysterical?

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The post then gives teh relevant case law. There is not one case that supports the NY Times position. Not a single case. The latest case to discuss the issue was in 2002 by the FISA court itself.

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It's not hard to figure out why the Times editorialists pretend that Sealed Case No 02-001 doesn't exist. It conclusively refutes their legal position:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

So the only federal appellate court that has ruled on the issue says that the New York Times is wrong about the law. The Times, ostrich-like, pretends that the federal courts don't exist.

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Perhaps one reason the NY Times is screeching so is because it compromised national security based on a flawed interpretation of the law and did so for partisan purposes. It should also be noted that the Times is only a recent convert to the surveilance, after Rove made it clear that their position was politically untenable. Until that time they were arguing that the surveilance was an impeachable offense and should not be done. There current position is still untenable because it attempts to let a judge second guess the President in the excercise of his war powers. It is similar to letting a judge decide what forces to use and when. The NY Times is guilty of publishing material they knew was classified and they knew that publishing it would harm national security. They are the ones who should be brought before a court for sentencing.