WSJ editorial falsely claimed warrantless wiretaps' legality "was not really in question"

A January 19 Wall Street Journal editorial falsely claimed that the "legality" of the Bush administration's warrantless domestic wiretapping program "was not really in question." The editorial accused the administration of "surrender" when it announced, on January 17, that President Bush would "not [] reauthorize the Terrorist Surveillance Program when the current authorization expires," and, that, from now on, "any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court." The administration had caved, the editorial stated, even though "the legality of the warrantless wiretaps was not really in question" and "no serious court has ever recognized the [FISA] as a binding limit on Presidential authority." However, aside from the August 2006 ruling by U.S. District Court judge Anna Diggs Taylor that the program was unconstitutional -- a ruling the editorial dismissed -- senators from both parties have criticized the administration for flouting the law.

The editorial also baselessly described the intercepts as "al Qaeda wiretaps," suggesting that the program involves only the warrantless surveillance of members of Al Qaeda. But as Media Matters for America has noted, news reports indicate that the National Security Agency, which conducts the program, has monitored the communications of thousands of U.S. residents with no relationship to Al Qaeda.

The Journal's assertion that "the legality of the warrantless wiretaps was not really in question" is undermined not only by the ruling of the district court -- which the editorial dismissed as not a "serious court" -- but by the view of numerous others, as Media Matters has documented. Republican Sens. Lindsey O. Graham (SC) and Chuck Hagel (NE), and Bruce Fein, an associate deputy attorney general during the Reagan administration, have all questioned the program's legality. Fourteen law professors, including Duke University's Curtis A. Bradley, a former counselor on international law in the State Department Legal Adviser's Office, wrote an open letter dated February 2, 2006, rebutting the administration's legal justifications for the program, as set out in a January 19, 2006, "white paper."

Indeed, Foundation for the Defense of Democracies senior fellow Andrew C. McCarthy, a defender of the program, wrote in a July 11, 2006, National Review online article that the Supreme Court's June 29, 2006, Hamdan v. Rumsfeld decision "is a disaster because it sounds the death knell for the National Security Agency's Terrorist Surveillance Program (TSP)." In Hamdan, the Court ruled, in the context of determining the legality of certain detainee policies, that the September 14, 2001, Authorization for the Use of Military Force against Al Qaeda did not give the president additional authority beyond existing statutes governing military commissions. Reacting to the decision, McCarthy wrote that if the reasoning behind Justice Anthony M. Kennedy's concurrence in the Hamdan decision -- that, even in wartime, the president may act only within the limits Congress has properly placed on his military authority -- "takes root, it is impossible to see how the TSP survives."

From the January 19 Wall Street Journal editorial (subscription required) titled "Bush's Wiretap Surrender":

The Iraq War has been hurting President Bush's poll ratings for a couple of years now. But keeping him from political free fall is the fact that the United States has suffered no terrorist attacks since 2001, and the widespread belief that White House policy might have something to do with it. So count us baffled by Mr. Bush's surrender Wednesday on warrantless wiretapping authority that even the Carter Administration believed was well within the Constitutional power of the executive branch.

The recent al Qaeda wiretaps at issue provoked little public outrage, after all. Most Americans outside partisan media circles or libertarian think tanks understand what's at stake. Although Congress whined about not getting enough information about the program -- it always does -- it didn't dare try to shut it down either.

But now, and for reasons that seem shortsightedly political, the Justice Department has announced that future domestic surveillance of al Qaeda would be conducted within the confines of a 1978 law called the Foreign Intelligence Surveillance Act. No Administration and no serious court has ever recognized FISA as a binding limit on Presidential authority.

We don't know the details of the deal the Administration says it struck with the special court that grants FISA warrants. But even an eased and expedited process is likely to prove an unnecessary impediment to meeting U.S. intelligence needs. FISA is a Cold War-era law that was written primarily to enable surveillance of suspected Soviet bloc spies operating out of embassies. It is ill-suited to the realities of today's fast moving antiterror battlefield.

In particular, FISA warrants require that the government show that an intended subject of surveillance is an "agent" of a foreign power. Which raises the important question of what happens the next time we pick up an al Qaeda bigwig with a list of U.S. cell phone numbers on him? Are those numbers to go unmonitored because they don't fit FISA's "agent" paradigm and we can't know in advance to whom they're attached? Or what about known individuals who are not al Qaeda "agents" but active sympathizers? Are they out of bounds? The Administration has some explaining to do -- not least to its own officials who spent months saying FISA warrants were dangerously restrictive.

All the more so because the legality of the warrantless wiretaps was not really in question. There is all the difference in the world between wiretaps for criminal surveillance and prosecution and wiretaps for gathering intelligence on our enemies. Just as the President doesn't need a warrant to listen to enemy communications on a foreign battlefield such as Iraq, he doesn't need one simply because one end of an enemy communication happens to take place in the U.S.