Jan 03, 2006 12:08 PM

The NSA's Nightshift

The big news from the New York Times' Sunday blowout on Bush and the NSA snooping scandal is buried in the second to last paragraph. Sure, it's sexy that an Ashcroft deputy had misgivings about Bush's authoritarian snooping program -- but it's hardly surprising; merely proof that not everybody in the Justice Department was drinking the "commander-in-chief-authority" Kool Aid.

The real surprise here is how far down the chain of command Bush's executive authority was deemed to extend. As the Times reports, even after the illicit spy program was reigned in last year, the NSA . . .

. . . maintained the authority to choose its eavesdropping targets and did not have to get specific approval from the Justice Department or other Bush officials before it began surveillance on phone calls or e-mail messages. The decision on whether someone is believed to be linked to Al Qaeda and should be monitored is left to a shift supervisor at the agency, the White House has said.

In other words, the individual decisions to violate the Fourth Amendment rights of American citizens by conducting warrant-less wiretaps weren't made by the president or any of his top deputies, but by some NSA functionary on the nightshift.

This is where the presidential war-powers logic breaks down, just as it did at Abu Ghraib. It's one thing to assert that the nation's highest elected authority holds an executive trump card, affording him the discretion to spy on or even torture enemies of the state. It's quite another to extend that stark authority to Sam the Spy, a middle manager in the NSA bureaucracy, empowering him to violate his fellow citizens' constitutional rights at two in the morning.

After all, we know about the dark, dangerous allure of late-night highjinks. Just ask Lyndie England.

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