Listen and learn.(Foreign Intelligence Surveillance Act)

THERE are really just two questions about President Bush's decision to order surveillance, without warrant, of the international phone calls and e-mails of people with known al-Qaeda connections. One, is it legal? And two, should he have done it?

The answer to the first question is most likely yes. It's true that the Foreign Intelligence Surveillance Act, or FISA, requires the executive branch to seek a warrant when eavesdropping for intelligence purposes. But it's also true that court decisions over the years have said that the president, as commander-in-chief, has the inherent constitutional authority to order surveillance on his own--an authority that cannot be taken away by Congress. In the 2002 decision In re: Sealed Case, the FISA Court of Review wrote that "all the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the president does have that authority and, assuming that is so, FISA could not encroach on the president's constitutional power." While there is no Supreme Court precedent on this matter, the president appears to be on solid legal ground.

Should he have exercised this legal authority? There was certainly a need; we know that there were significant problems in getting quick FISA warrants for the kind of surveillance the president needed to do. Two years ago, for example, members of the September 11 commission said that the warrant application process was "long and slow" and that "requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance."

But if President Bush saw the urgent need for quick surveillance, his opponents say, why didn't he ...