Henninger baselessly asserted that public disclosure of spying program made it ineffective; news reports indicate it already was

In his February 10 column, Wall Street Journal deputy editorial page editor Daniel Henninger baselessly asserted that the public disclosure of President Bush's warrantless domestic surveillance program had made it ineffective. Henninger wrote that the program "was going to work, and help lessen the chance of another atrocity in our America, only if it stayed secret" (italics in original). He added: "Now it is public, and its utility is about zero." Henninger's assertion accepts as fact two assumptions, one rebutted by news reports and the other highly dubious. First, the assertion presumes that the warrantless domestic spying program was effective prior to its exposure. News reports, however, indicate that even before its revelation by The New York Times in mid-December 2005, "nearly all" of the people whose calls were monitored under the National Security Agency (NSA) program were, in the words of a February 5 Washington Post article, later "dismissed ... as potential suspects after hearing nothing pertinent to a terrorist threat." Second, by stating that the program's public disclosure rendered it ineffective, Henninger is accepting the administration's suggestion that the program's disclosure tipped off terrorists to something they hadn't already suspected. A February 6 exchange between Sen. Joseph R. Biden Jr. (D-DE) and Attorney General Alberto R. Gonzales during the Senate Judiciary Committee hearing on the surveillance program highlights the absurdity of that claim.

News articles suggest that the program has been ineffective. According to The Washington Post:

Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.

Bush has recently described the warrantless operation as "terrorist surveillance" and summed it up by declaring that "if you're talking to a member of al Qaeda, we want to know why." But officials conversant with the program said a far more common question for eavesdroppers is whether, not why, a terrorist plotter is on either end of the call. The answer, they said, is usually no.

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.

In addition, a January 17 New York Times article reported that, according to "current and former [FBI] officials," "virtually all" of the tips provided by the NSA to the FBI "led to dead ends or innocent Americans."

An exchange between Biden and Gonzales at the Judiciary Committee hearing on the surveillance program demonstrates the dubiousness of Henninger's other assumption: that the program's disclosure was somehow news to terrorists. Biden told Gonzales that this argument "seems to presuppose that these very sophisticated Al Qaeda folks didn't think we were intercepting their phone calls." Gonzales responded that while "it is true you would assume that the enemy is presuming that we are engaged in some kind of surveillance," the program's disclosure still damaged its usefulness because, Gonzales said, "if [the terrorists are] not reminded about it all the time, in the newspapers and in stories, they sometimes forget. ... [Y]ou're amazed at some of the communications that exist. And so, when you keep sticking it in their face that we're involved in some kind of surveillance, even if it's unclear in these stories, it can't help but make a difference." Biden responded that he hoped that was the case, because if the terrorists "[a]re that stupid and naive ... we're much better off if that's the case." Biden, however, stated that he "got the impression from the work I've done in this area that they are pretty darn sophisticated."

As Reagan-era associate deputy attorney general Bruce Fein observed in a December 20, 2005, Washington Times column, if public disclosure has rendered the program ineffective, why has Bush said that he will continue it?:

The president maintained that, "As a result [of the NSA disclosure], our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk." But if secrecy were pivotal to the NSA's surveillance, why is the president continuing the eavesdropping?

From Henninger's February 10 Wall Street Journal column, titled "Can We Talk?":

At the Judiciary Committee hearings Monday, Sen. [Patrick] Leahy [D-VT] announced: "Mr. Attorney General, in America, our America, nobody is above the law, not even the president of the United States." Got it. But here's the bottom line on the surveillance program. It was going to work, and help lessen the chance of another atrocity in our America, only if it stayed secret. The odds of it staying secret would diminish as its existence spread through the Congress and judicial system. Now it is public, and its utility is about zero. What's left is the legal issue of whether it violated [the Foreign Intelligence Surveillance Act] FISA. We can only look forward to the answer.