The Bush administration has subtly acknowledged for weeks that the president’s warrantless-search program violates FISA, but, officials argue, the program is still lawful because of other presidential legal authorities. Last week, in response to a question from a reporter who asked why the president decided to “circumvent” FISA, Bush quickly summarized his perspective.
“[T]he FISA law was written in 1978. We’re having this discussion in 2006. It’s a different world. And FISA is still an important tool. It’s an important tool. And we still use that tool. But also — and we — look — I said, ‘Look, is it possible to conduct this program under the old law?’ And people said, ‘It doesn’t work in order to be able to do the job we expect us to do.'”
It’s startling when you think about it. Bush asked “people” — it’s not entirely clear who — whether he could conduct this domestic surveillance under FISA. Bush acknowledged that these people said he could not, because “the old law…doesn’t work.” But here’s the thing: there is no new law, just “the old law” that the president decided he no longer wanted to follow.
Yesterday, Sen. Chuck Hagel (R-Neb.) added his voice to those who believe the president can’t decide to ignore laws he doesn’t like.
HAGEL: I don’t believe, from what I’ve heard, but I’m going to give the administration an opportunity to explain it, that he has the authority now to do what he’s doing. Now, maybe he can convince me otherwise, but that’s OK.
STEPHANOPOULOS: But not yet.
HAGEL: Not yet. But that’s OK. If he needs more authority, he just can’t unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law. He needs to come back, work with us, work with the courts if he has to, and we will do what we need to do to protect the civil liberties of this country and the national security of this country. (emphasis added)
This comes about a month after Hagel joined a bi-partisan group of senators demanding a full-scale congressional investigation into Bush’s domestic-surveillance program and publicly blasted the White House, saying, “No president is above the law. We are a nation of laws and no president, majority leader, or chief justice of the Supreme Court can unilaterally or arbitrarily avoid a law or dismiss a law.”
Hagel’s been on a roll lately, as he’s struggled to contain his disappointment with the Bush White House. It won’t help Hagel’s presidential ambitions, but it’s encouraging to see a Senate Republican who can put partisanship aside on this issue.