Reason and Wiretaps

What the terrorist surveillance fight is really all about.

Wall Street Journal
Wednesday, August 8, 2007 12:01 a.m.

To hear the critics tell it, the warrantless wiretapping law passed by Congress this weekend is an immoral license for a mad President Bush and his spymasters to eavesdrop on all Americans. For those willing to believe such things, mere facts don't matter. But for anyone still amenable to reason, the deal is worth parsing for its national security precedents, good and bad. The next Democratic President might be grateful.

The good news is that the new law will at least allow the National Security Agency to monitor terrorist communications again. That ability has been severely limited since January, when Mr. Bush agreed to put the wiretap program under the supervision of a special court created by the 1978 Foreign Intelligence Surveillance Act (FISA). The new law provides a six-month fix to the outdated FISA provision that had defined even foreign-to-foreign calls as subject to a U.S. judicial warrant.

The first duty of Director of National Intelligence Michael McConnell is to prevent the next terrorist attack, and it's disgraceful that some have vilified him for trying to revive our intelligence ability in that cause. His effort has been no different, and no less honorable, than a general arguing for more troops.


But it's important to understand for the debate ahead why all of this has become so ferociously controversial. Opposition from the Democratic left to this intelligence program isn't merely part of the partisan blood feud against a weak President near the end of his term. It is part of a far larger ideological campaign to erode Presidential war powers. Goaded by the ACLU and much of the press corps, many Democrats want to use the courts and lawsuits to restrict Mr. Bush and future Presidents in their ability to gather intelligence in the war on terror. For a flavor of this strategy, spend a few minutes on the ACLU's Web site.

In that regard, even the weekend deal is far from encouraging. For example, the new law does not offer explicit liability protection for telecom companies that cooperate with the wiretap program. Instead, the most Democrats would accept is language to "compel" the cooperation of these companies going forward. The Administration hope is that this "I had no choice" claim will be an adequate defense against future lawsuits, but in the U.S. tort lottery that is no sure thing.

Meantime, Democrats blocked any retroactive liability protection for companies that thought they were doing their patriotic duty by cooperating with the National Security Agency after 9/11. The goal here isn't merely to open another rich target for the tort bar. It is to use lawsuits to raise the costs for private actors of cooperating with the executive branch. Even if they lose at the ballot box or in Congress, these antiwar activists still might be able to hamstring the executive via the courts.

That's also the explicit strategy in trying to expand the reach of the special FISA court to all wiretaps, foreign and domestic. The left is howling that the NSA will no longer need a FISA warrant for each wiretap (of which there were 2,176 in 2006). That's the best part of the bill. But the Administration did concede to let FISA judges review the procedures for wiretapping up to 120 days after the fact. If a judge objects, the wiretapping can at least continue, pending appeal all the way to the Supreme Court.

This is the kind of review that judges are neither allowed to perform under the Constitution, nor equipped to provide as a matter of policy. Whatever the merits of the 1978 FISA law, no Administration has ever conceded that that law trumped a President's power to make exceptions to FISA if national security requires it. To do so would be a direct infringement on the President's Article II powers as Commander in Chief to protect the nation against its enemies.

The courts have been explicit about this, with the FISA appellate court asserting in a 2002 opinion (In Re: Sealed Case) that "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." FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed.

In the weekend deal, the Bush Administration grants the FISA court power to review procedures even for foreign communications, which is unprecedented. Under Article III of the Constitution, the courts are granted the power to settle disputes. The judiciary also has power under the Fourth Amendment, which gives courts the ability to issue warrants. But nowhere does the Constitution empower our nation's judges to serve as foreign policy advisers or reviewers of intelligence policy. Judges have no particular expertise on intelligence, and in any case they are unaccountable to voters if their decisions are faulty. Recent news reports have suggested that several current FISA judges are uncomfortable with making such intelligence decisions, and rightly so.

As for the possibility that Presidents will abuse this power, fear of exposure is an even more powerful disincentive than legal constraint. The political costs of being seen as spying on Americans for partisan ends would be tremendous. Congress, on the other hand, is only too happy to use the courts to squeeze executive power, in part because this allows the Members to dodge responsibility themselves. If there's another terror attack, the President still gets the blame even if some unelected judge refused a warrant. Congress can blame everyone else.

This is a statutory version of Senator Jay Rockefeller's famous decision to write a letter to Dick Cheney objecting to the warrantless wiretap program after he'd been briefed on it, but then sticking the letter (literally) in a drawer. Only after the program was exposed did he unearth the letter to show he'd objected all along, though he'd done nothing at all to stop it.


The weekend law expires in six months, and it would be nice to think enough Democrats would put aside this ideological obsession to work with Mr. Bush on a more permanent wiretap statute. Given the current state of Beltway rationality, we aren't optimistic.

As negotiations unfold, we hope the President resists any deal that compromises the ability of his successors to defend the country. In 18 months, Mr. Bush will be leaving office, but the terrorist threat will continue. The stakes are too large for any President to accept new judicial limitations on his ability to track terrorists at home or abroad. Rather than accept such limits, Mr. Bush could use Congressional recalcitrance as an opportunity to withdraw the terrorist surveillance program from FISA authority, and thus toss the issue squarely in the middle of the 2008 Presidential campaign.