What logic prevailed?

Saturday, Nov. 8, 2008 | 2:07 a.m.

Other than dubious offhand comments by President Bush, there has never been an explanation from the White House of how the post-9/11 warrantless wiretapping program operated by the National Security Agency was legally justified.

After The New York Times exposed its existence in December 2005, the program came under intense criticism from members of Congress, civil-liberties groups, judges, prominent attorneys and members of the public.

Last year, facing a court challenge, the Bush administration placed the program under the purview of the “FISA” court, which should have been involved from the start.

The court’s name derives from the 1978 legislation that created it, the Foreign Intelligence Surveillance Act. The court was specially set up to quickly make decisions on presidential requests for wiretapping warrants in cases where national security is an issue.

It was created to ensure against the abuses of power that occurred during the Nixon administration. The court, which deliberates in secret, has granted almost every request that has come before it. So it remains a mystery why Bush wanted to bypass it.

Also a mystery is how spying on Americans without a warrant could possibly have been justified. For three years now the Bush administration has been fighting a lawsuit, filed by the American Civil Liberties Union and two other groups, seeking an explanation.

This week a federal judge for the Washington, D.C., district, Henry Kennedy Jr., ordered the Justice Department to produce the internal memos written by the White House’s legal counsel that outline the basis for ordering warrantless spying.

The White House has protested that handing over the memos would jeopardize national security. Kennedy, however, said he will first review them in private to ensure that no classified material will be released.

It is time for the White House to stop delaying. It should turn over the memos by Nov. 17, the date ordered by Kennedy. A fundamental right was abridged and Americans need to know what logic allowed it.