WSJ editorial claimed "Democratic subpoenas" issued over "al Qaeda wiretapping program"

In a July 7 editorial, The Wall Street Journal editorial board asserted that a "political calculus is driving Democratic subpoenas over the National Security Administration's al Qaeda wiretapping program." The editorial continued: "The goal is to further embarrass [Attorney General] Mr. [Alberto R.] Gonzales, or perhaps to dig up something about Vice President Dick Cheney's role in supporting the wiretaps." The editorial was referring to the subpoenas the Senate Judiciary Committee issued to the White House seeking documents relating to the authorization and legal justification for the Bush administration's warrantless domestic wiretapping program. In fact, notwithstanding the Journal's characterization of "Democratic" subpoenas, three committee Republicans joined the Democrats in authorizing the subpoenas. In addition, the editorial described the wiretapping program as an "al Qaeda wiretapping program," despite the impossibility -- as noted by Judges Alice Batchelder and Julia Smith Gibbons of the U.S. Court of Appeals for the 6th Circuit, and U.S. District Court Judge Anna Diggs Taylor in separate opinions -- of determining who is actually targeted by the program without the use of classified information the government refuses to release. News reports from 2006 also indicated that the operation has led to the surveillance of thousands of Americans with no clear links to terrorism.

As Media Matters for America has repeatedly documented, a number of media outlets have either characterized the issuing of these subpoenas as partisan, as the Journal did, or uncritically reported White House claims to that effect. The editorial stated that "[Judiciary Committee Chairman Sen. Patrick] Leahy [D-VT] and ranking Judiciary Member Arlen Specter [R-PA] may be miffed that they weren't among those originally briefed"; however, it did not note that Specter was one of the three Senate Republicans who voted to authorize the subpoenas, as the Associated Press reported, nor did it identify Specter as a Republican beyond noting that he was the "ranking ... Member" on the Judiciary Committee -- a title given to the leading committee member from the minority party.

While the Journal described the NSA surveillance program as the "al Qaeda wiretapping program," it cited no evidence establishing that the program targets only members or suspected members of that terrorist organization. By contrast, in an August 17, 2006, opinion, Judge Taylor -- a Carter appointee -- held that the wiretapping program "violates the Administrative Procedures Act ("APA"); the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law" and further wrote that the secretive nature of the program makes it impossible to determine who it targets:

Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.

In a July 6, 2007, lead opinion overturning Taylor's decision, Judge Batchelder also noted that it is impossible for any individual to determine whether he or she has been targeted by the wiretapping program without the release of documents protected by the "State Secrets Doctrine." Nonetheless, Batchelder (who was appointed by President George H.W. Bush) held that the plaintiffs were unable to establish standing because they "do not -- and because of the State Secrets Doctrine cannot -- produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP [Terrorist Surveillance Program], or without warrants." Judge Gibbons, an appointee of the current president, did not join Batchelder's opinion, but agreed that Taylor's decision should be overturned because "the plaintiffs are ultimately prevented from establishing standing because of the state secrets privilege." Judge Ronald Gilman, a Clinton appointee, dissented and would have affirmed Taylor's decision.

As Media Matters has noted, various news outlets in 2006 indicated that the surveillance program has ensnared thousands of Americans with no ties to Al Qaeda or other terrorist groups. For instance, on November 25, 2006, The New York Times reported that "government officials involved" in the wiretapping program "have said that it has often led to dead ends and to people with no clear links to terrorism."

This is consistent with earlier reporting on the targets of the wiretapping program. In a February 5, 2006, article, The Washington Post quoted "current and former government officials" saying that "[i]ntelligence 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." Discussing the number of Americans who have had their conversations recorded or their emails read by intelligence analysts without court authority over the previous four years, the Post reported: "Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000." Of those subject to warrantless wiretaps, "[f]ewer 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." Further, the Times similarly reported on January 17, 2006, that "[m]ore than a dozen current and former law enforcement and counterterrorism officials," some of whom knew of the domestic spying program, "said the torrent of tips [from the NSA program] led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive."

From the July 7 Wall Street Journal editorial titled "Congress v. Presidency":

A similar political calculus is driving Democratic subpoenas over the National Security Administration's al Qaeda wiretapping program. The goal is to further embarrass Mr. Gonzales, or perhaps to dig up something about Vice President Dick Cheney's role in supporting the wiretaps. The Administration has yet to formally respond to Congress's authorization of wiretap subpoenas, though we hope it also resists on executive privilege grounds.

This privilege claim is less clear-cut than in the U.S. attorneys case, because Congress can legislate on the matter. But nothing is stopping Congress from doing that right now, and Administration officials are negotiating with Democrats on a compromise that would put the wiretaps on a less controversial legal footing. The greater outrage here is that Democrats have been so slow to strike such a deal on this crucial defense program. They've been too busy sending out subpoenas designed not to collect information to make policy but solely to expose internal Administration debates.

On that score, Democrats should also include their own leadership in their subpoena barrage, including Intelligence Chairman Jay Rockefeller. Several Democrats were briefed on the wiretapping program from the beginning and didn't object until its existence was leaked. Mr. Leahy and ranking Judiciary Member Arlen Specter may be miffed that they weren't among those originally briefed, but wounded pride is a weak excuse for now infringing on Presidential powers.

On a matter so crucial to U.S. security during wartime, you'd think the Congress and White House could work together without going to the Constitutional mattresses. But then that wouldn't yield the headlines and political advantage that are Mr. Leahy's real goal. Mr. Bush is right to resist this partisan exercise, and future Presidents will be grateful that he did.