NSA & Court Opinion

I like James Q. Wilson's commentary in today's WSJ ($$$) on the recent NSA court opinion:

"What is most striking about Judge Taylor's decision is that she nowhere discusses the approval of warrantless searches by other and higher federal courts. In 1980, the Court of Appeals for the fourth circuit held (U.S. v. Truong Dinh Hung) that 'the Executive need not always obtain a warrant for foreign intelligence surveillance.' That is because a 'uniform warrant requirement' would 'unduly frustrate' the discharge of the president's foreign policy duties. It would 'delay executive response to foreign intelligence threats' by requiring the judges instantly to make decisions about rapidly evolving events.

In 2002 the FISA review court itself held (In Re: Sealed Case) that the president 'did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.' The Supreme Court has never spoken on this matter, but it is astonishing that Judge Taylor never discusses the FISA and appellate court decisions that bear directly on this question."