John Hinderaker over at Powerline took a swing at Sunday's jumbo-sized New York Times editorial and smashed it to smithereens.
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?
The answer is that the Times purports to be making a technical legal argument. Its point is that following an easy, foolproof procedure will make the necessary surveillance legal instead of illegal.
As a lawyer, I can relate to technical legal arguments. But, if you're going to rely on a legal argument, isn't it necessary to actually...make a legal argument? One would think so, but the Times can't be bothered. Instead, it simply denounces the administration's program because it "violates the law as currently written." But does it? When lawyers make technical legal arguments, we generally cite case law. Like, for example, United States v. Clay, 430 F.2d 165 (5th Cir. 1970), in which the court held that federal statutes prohibiting wiretapping do not "[forbid] he President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest." That seems obviously pertinent; what does the Times have to say about the Clay case? Nothing. It doesn't mention it.
Hinderaker then lists and provides a short primer on all of the case law that the Times assiduously ignores.
The tragedy is that -- through its print edition, wire service and the influence it has on the broadcast news shows -- more people get their information from the Times.