Warrantless wiretaps and 9/11: A tacit admission from Karl Rove

If they could have made a difference, why didn't Bush order them after he was warned that bin Laden was determined to strike?

Published August 25, 2006 1:15PM (EDT)

Karl Rove headlined a fundraiser for Ken Blackwell in Toledo, Ohio, this week -- let's just call it a big favor returned -- and he used the opportunity to scare up the terror vote by railing against a U.S. District Court's injunction against the president's warrantless wiretapping program.

As the Associated Press reports, "Rove said the government should be free to listen if al-Qaida is calling someone within the U.S. 'Imagine if we could have done that before 9/11. It might have been a different outcome.'"

Just one problem here. Under at least one of the Bush administration's legal theories, George W. Bush "could have" ordered warrantless wiretapping before 9/11 if he'd had any interest in doing so.

While the Justice Department has argued that the use-of-force authorization approved by Congress just after 9/11 implicitly allowed the warrantless spying, it also insists that Bush had "inherent" authority to institute the program himself.

"The NSA activities are supported by the president's well-recognized inherent constitutional authority as commander in chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States," the Justice Department argued in its "white paper" in defense of the program. "The president has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the president the authority necessary to fulfill that solemn responsibility."

Got that? The Justice Department says that even without Congress, Bush has the authority to order warrantless spying to "protect America from attack." Rove says that there "might have been a different outcome" on 9/11 if he had done so. As another 9/11 anniversary approaches, we'll take that as an admission that Bush didn't, in fact, do everything he could to avoid the attacks. Either that, or Bush doesn't actually have the inherent power to engage in warrantless spying without congressional approval. It's got to be one or the other; the White House can't -- but probably will -- have it both ways.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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2006 Elections 9/11 Espionage Karl Rove War Room