The president's duty.

THE National Security Agency has been monitoring the conversations of al-Qaeda operatives and other terrorists overseas, and that includes their conversations with persons in the U.S. This is good news--unless you're the New York Times, which broke the story at year's end, or liberal Democrats who mined it for high dudgeon.

The NSA's monitoring of those in America was done without warrants, seemingly in violation of the Foreign Intelligence Surveillance Act of 1978, which required the federal government to show probable cause to a secret court established by the act before listening in. But FISA is not adequate in the post-9/11 era, nor was it clearly constitutional before it.

Warmaking is an executive function. Congress declares and pays, but the president must lead. "Of all the cares or concerns of government," wrote former colonel Alexander Hamilton in Federalist 74, "the direction of war most peculiarly demands those qualities which distinguish [or characterize] the exercise of power by a single hand." The Supreme Court recognized executive primacy even in peacetime spying in 1972, when it noted that, while the Fourth Amendment required warrants for wiretapping domestic terrorists, "the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country," was unrestricted. Executive direction and flexibility is even more necessary in our 21st-century war against a flat-structured, transnational enemy, with multiple shady sponsors.

At the post-Watergate nadir of presidential prestige, Congress nevertheless tried to impose restrictions with FISA. Not only was Congress meddling where it didn't belong, it dragged a bastard branch of the judiciary into the act. Presidents have complied with FISA's terms, while maintaining that they did not have to. As John Schmidt, a former associate attorney general for Bill Clinton, wrote in the Chicago Tribune, after the NSA story broke, "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms.... That inherent power," Schmidt went on, "is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history"--and Schmidt specifically cited the recent history of 9/11--"could well need again."

The Bush administration did not seek warrants from the FISA court for the NSA program, but it did notify the relevant congressional committees and the bipartisan leadership of both houses a politic and honorable decision, if the press and the opposition were men of honor. Democrats who nodded then are squawking now when it seems they might get partisan traction. (See Andrew C. McCarthy's detailed piece, beginning on page 37.)

In Times-land, we would go back to the lawyers' paradise of 9/10--until the next hecatomb, followed by a storm of hysteria and headshaking about why we didn't see the handwriting on the wall.