A Wall Street Journal editorial described a recent agreement between GOP Senate Intelligence Committee members and the Bush administration concerning its warrantless domestic surveillance program as a "White House mugging by Republicans." However, far from a "mugging," the agreement essentially legitimizes the controversial program, which currently operates in apparent violation of the law.
A March 9 Wall Street Journal editorial described a recent agreement between GOP Senate Intelligence Committee members and the Bush administration concerning its warrantless domestic surveillance program as a "White House mugging by Republicans." Under the proposed legislation, the administration would be required to subject the program to occasional scrutiny by House and Senate subcommittees and, in cases of extended warrantless eavesdropping, explain to Congress why the surveillance should be exempt from judicial review. Far from a "mugging," however, the agreement essentially legitimizes the controversial program, which currently operates in apparent violation of the law.
The Foreign Intelligence Surveillance Act of 1978 (FISA) requires a warrant for all domestic surveillance for foreign intelligence purposes. Shortly after the September 11, 2001, terrorist attacks, the Bush administration authorized the National Security Agency (NSA) to intercept the international communications of U.S. residents without seeking FISA warrants. Since the program became public in December 2005, the president has argued that he derives authority to circumvent FISA from two sources: the Constitution and the Authorization for Use of Military Force (AUMF) passed by Congress in 2001. But lawmakers from both parties, as well as officials within the Bush Justice Department, have criticized this legal argument as unsound.
On March 7, all eight Republicans on the Senate Intelligence Committees voted down a Democratic proposal to launch a full investigation into the NSA program. That same day, Republican committee members announced that they had reached an agreement with the White House to carve out legislation allowing the warrantless surveillance to continue under the law. As detailed by Sen. Mike DeWine (R-OH), one of the lead authors of the legislation, the proposed measure would allow the NSA to conduct domestic eavesdropping for up to 45 days without a warrant. (FISA allows warrantless surveillance for up to 72 hours under exigent circumstances.) Under the proposal, if the administration seeks to conduct this surveillance for a period longer than 45 days, they can then request a warrant from the FISA court, assuming they possess enough evidence to satisfy FISA's probable cause standard. If they do not seek a FISA warrant -- presumably because they cannot meet the probable cause standard - the administration must explain to Congress why the continued warrantless surveillance is nonetheless "in the national security interest."
Unlike the FISA court, which has the power to deny a warrant -- if the administration chooses to seek one -- the legislation would apparently not give Congress the authority to shut down any specific surveillance. As Media Matters for America noted, when asked by a reporter "what leverage" Congress would have over administration decisions to continue warrantless surveillance after 45 days, DeWine responded, "[I]t's the same leverage we have in any other type of oversight." He noted that Congress would have the "power of the purse" and the power to "change legislation ... de-authorizing the program, altering the program."
In its March 9 editorial, "President Gulliver," the Journal responded by describing this development as a "White House mugging by Republicans":
Less explicable is this week's White House mugging by Republicans on the Senate Intelligence Committee over warrantless wiretaps of al Qaeda by the National Security Agency. On this one, Republicans were winning, the polls showed public support, and everyone outside the fever swamps had dropped their "impeachment" fantasies.
Nonetheless, a couple of GOP Senators forced the White House into conceding more Congressional oversight of wartime intelligence programs. Olympia Snowe of Maine and Chuck Hagel of Nebraska vowed to join Democrats in voting for a full-scale Senate probe of the NSA wiretaps unless President Gulliver bent to their wishes. Such a vote would have humiliated their Chairman, Kansas Republican Pat Roberts, at a minimum. But it would also have risked exposing intelligence sources and methods in a way that could have made the wiretap program less effective, if not entirely worthless.
In contrast to the Journal's characterization, however, the White House -- the purported victim of this so-called "mugging" -- responded to the proposal by calling it "generally sound" and expressing support for "legislation that would further codify the president's authority," as a March 8 New York Times article reported:
A spokeswoman for the White House, Dana Perino, called the Republican senators' proposal "a generally sound approach."
"We're eager to work with Congress on legislation that would further codify the president's authority," Ms. Perino said. "We remain committed to our principle, that we will not do anything that undermines the program's capabilities or the president's authority."
Moreover, in their coverage of the agreement, news outlets and legal experts have characterized it as favorable to the administration. A March 9 New York Times article reported experts' claim that the proposal provides "legislative sanction" for the warrantless domestic surveillance authorized by the president. The Times editorial page similarly criticized the proposed GOP legislation.