Andy McCarthy writes at NRO that thinks he found evidence of a partisan Crat agenda is contradictory legal opinions of the Presidency's plenary (unqualified or absolute) power.

Several former Clinton administration officials are among the group of “scholars of constitutional law and former government officials” who last week submitted a letter to Congress – posted on the New York Review of Books website – asserting that the Bush administration had “fail[ed] to identify any plausible legal authority” for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978). One of those former Clinton administration officials is Walter Dellinger.

But in 1994, Dellinger was singing a different tune. As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

The Clinton administration in fact used this view to direct the Justice Department not to enforce an obscure provision in the Telecommunication bill that would have criminalized placing information about how to obtain an abortion on the internet on the basis that it was unconstitutional on its face.

McCarthy notes an excellent and quite readable legal opinion by H. Bryan Cunningham of Morgan Cunningham in Colorado on the matter. It is interesting to contrast it with a dueling opinion by Professor Peter Swire at Ohio State University and fellow at American Progress--a liberal outfit.

Implicit in Peter Swire's argument is an unspoken premise--there is no crisis. This has been characterized as a pre-9/11 or 9/10 view of the world.

In the section named "What is at Stake", consider what Swire views as the salient matters:

Widespread violation of the criminal law is serious in its own right. It is far better to change the law than to break it, and Congress has amended FISA often, including approving the changes the Administration has proposed since September 11. I write briefly to suggest a partial list of other sorts of concerns raised by the NSA wiretapping program:

1. Jeopardizes ongoing investigations. When laws are broken, the legal system imposes consequences. Revelations about the NSA wiretapping program throw into doubt a wide range of investigations and prosecutions in the fight against terrorism. In criminal cases that can put terrorists behind bars, judges now have to worry that evidence was based on illegal wiretaps....

Note here that terrorism is treated in classic Clintonian terms--as a police matter. The aim is to apprehend and prosecute terrorists. The 9/11 attacks were not an act or war, but simply a violation of criminal statutes. Frankly if the Bush administration was merely trying to catch criminals, I could agree with Professor Swire's view but when it is seen as a matter of war, in which we are trying to prevent attacks on this country--the hell with prosecutions, we just want to find these guys and kill them before they kill us. This is the very nature of executive power--TO ACT. I'll make this real simple--when you have a problem that can't be resolved by established protocols, don't you automatically refer the matter to a manager--an executive? Everybody has done this at least once when "the system" is inadequate to deal with your particular problem. Notably, the Bush administration has used FISA courts and continues to use FISA courts, but still found exceptional circumstances where that system was inadequate. Is that really that hard to imagine in the war on terror?

2. Wastes valuable investigative resources. A January 17 story in the New York Times highlighted the huge amount of time and resources devoted to the program, apparently with minimal results. In the days after 9/11, the FBI decided to follow up on every lead, an understandable response to the urgent threat. Long lists of phone numbers continued to be generated by the NSA program...

This is just plain disingenuous because it does NOT to refer to the product of the warrantless wiretaps, but to the NSA activities in general, and only in the immediate aftermath of 9/11 where we were understandably less efficient in addressing the problem of terror communications into this country. The reality is that we don't know much if anything at all about the warrantless wiretaps because ITS SECRET.

3. Undermines the effectiveness of the NSA. FISA was a reaction to scandals in the 1970s, when it was learned that the NSA was routinely monitoring the international communications of Americans. In addition to phone company cooperation, Operation Minaret involved telegram companies that gave the NSA a large fraction of the telegrams entering or leaving the United States. FISA was passed in response to these revelations...

...In response to these revelations, a key concern is that the long-range effectiveness of the NSA will be undermined. Once trust is lost, it is hard to restore. Morale of career officers may suffer as their hard work is called into question. Needed initiatives may be placed on hold because of fear of Congressional second-guessing. Well-intentioned reforms may get in the way of helpful actions.

The revelations of recent weeks are big news. The Administration has risked the long-term effectiveness of the NSA by going behind Congress’ back.

After reading this portion, what would you consider Swire's definition of "effectiveness" to be? There is no mention here of the NSA's actual job of efficient and effective intelligence gathering, only comments relative to the careers of NSA officials and the "trust" of Congress. Let's be honest here--the only people who don't trust the NSA right now are Democrats, and that lack of trust is related completely to their political ambitions.

4. Threatens the constitutional system of checks and balances. The current Administration is claiming executive power far beyond our historical understanding. Here are three recent examples: it can wiretap without a warrant in the United States, contrary to FISA (the NSA program); it can torture, contrary to international law and the recent statute championed by Senator McCain; and it can hold a U.S. citizen in detention forever, with no judicial review, simply because the President says the citizen is an “enemy combatant.” It is hard to see any limits to the President’s claims – the entire PATRIOT Act has become essentially irrelevant because the President claims he would have the powers without the law. And these extremely broad powers would go on for years to come, so long as there are terrorists in the world who oppose the United States.

There doesn't seem to much thinking going on in this think-tank. There is no evidence that the U.S. has tortured anyone--lots and lots of claims by terrorists, terrorist sympathizers, anti-Americans and Democrats, but no evidence of torture. Of course, some people have conveniently redefined the concept of torture to mean serving burnt toast every morning. Swire of course fails to mention that while there was no judicial review, there was in fact Congressional review--the warrantless wiretaps were reported to Congress on several occasions, a fact admitted by Congressional Democrats.

This rather over-the-top conclusion by Swire is best refuted by the contrast of Bryan Cunningham's views on the matter.

Taken to its logical extreme, the Critic's position would fundamentally alter the system of separation of powers and checks and balances created by our Constitution, transforming our governmental institutions into one in which Congress alone rules supreme in virtually all spheres of government action.

aye--there's the rub.

A pattern emerges when see in conjunction with the Alito nomination--the Democrats, unable to actually elect a president, have simply decided to abolish the position, or at least give it the old college try.

While most readers will already know this--some of the telltales of a fallacious arugment are equivocation (torture becomes burnt toast or sleeping on cold floors rather than hacking off digits and applying electric shocks to the genitals...). Another is best expressed with a quote from John Stuart Mills from "On Liberty"

"He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion."

Swire's FAQ in notable in that it simply fails to address the arguments made by his opponents. Consider this:

Q: Do you agree with the Administration position on AUMF? A: No. Congress did not authorize wiretaps in the U.S. against U.S. persons when it passed the Authorization to Use Military Force. Q: Are there any independent assessments of the legal arguments about AUMF? A: Yes. Independent assessments have found that the Administration is wrong about the AUMF:

Swire simply asserts his position without proving it in the first instance, and in the second he offers a "sexed-up" argument to misleading authority. He quotes the Congressional Research Service, and then a number of current and former Republican office-holders. For a thinking person, none of these could be considered authoritive sources and its clear that they are selected for their allegedly non-partisan quality rather than authority.

The courts are of course the real authority, which explains why the Crats sought to undermine Judge Alito's credibility during the nomination process. Unable to block his confirmation, they have engaged in another rhetorical device--namely "poisoning the well". Should the NSA wiretap issue come before the Supreme Court and rule in favor of the administration, the Crats can claim a "rigged game" due to Justice Alito's alleged propensity to favor the executive branch.

The Crats know they can't win this argument, so they've settled for planting some political IEDs in the administration's path.

Its good politics--stinky, but clever.