In an October 22 editorial asserting that the Senate Intelligence Committee's recently passed proposed revisions to the Foreign Intelligence Surveillance Act (FISA) are a “major defeat” for “the political left and most House Democrats,” The Wall Street Journal falsely claimed that under the “preferred rules” for wiretapping purportedly favored by “most House Democrats,” “a U.S. President couldn't even eavesdrop on a foreign-to-foreign terror call if by chance that call was routed through an American telephone switch,” which “would amount to unilateral disarmament in the war on terror.” The assertion is false on two counts. First, contrary to a common straw man promoted by the Bush administration and repeated on numerous occasions by the media, no one is suggesting that the president should not under any circumstances be able to eavesdrop on communications involving suspected terrorists, including* foreign-to-foreign calls that happen to be routed through the United States; rather, they have merely taken the position that the president should be subject to meaningful court oversight in conducting such surveillance. Second, not only are sponsors of the House's RESTORE Act of 2007 saying that the government should be allowed to eavesdrop on these calls, they are saying it can do so without a warrant: The bill, sponsored by House Judiciary Committee chairman John Conyers (D-MI), specifically provides that “a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States,” even if those communications are routed through or acquired in the United States.

The House bill passed the House intelligence committee on October 10 by a party-line vote of 12-7. It also passed the House Judiciary Committee the same day by a party-line vote of 20-14.

The Wall Street Journal's assertion that “the political left and most House Democrats” oppose any eavesdropping of foreign-to-foreign communications routed through the U.S. echoes a common media distortion of the position held by congressional critics of President Bush's efforts to conduct surveillance of U.S. persons without warrants in apparent violation of FISA. Media Matters for America has documented a number of instances in which media outlets have reported without challenge Republican allegations that critics of the president oppose eavesdropping on terrorists, or have asserted so themselves. In fact, opponents of Bush's warrantless domestic surveillance program have challenged not the administration's efforts to conduct surveillance at all but to conduct surveillance on people in the United States without meaningful court oversight.

Further, the Journal editorial lauded the Senate bill for “grant[ing] prospective and retroactive immunity to the telecom companies that cooperated with the federal government on wiretaps after 9/11.” The editorial added: “For centuries, the common law presumption has been that private parties should have legal immunity if they comply with such requests. In the absence of evidence that the government's request is illegal, private actors should be given the benefit of the doubt for cooperating.” However, the Journal did not note that in a lawsuit challenging the legality of telephone companies cooperating with the administration, Hepting v. AT&T Corp., federal district Judge Vaughn Walker denied AT&T's claim of “qualified immunity,” ruling in part that “based on the facts as alleged in [the] plaintiffs' complaint ... AT&T's alleged actions here violate the constitutional rights clearly established in Keith [i.e., United States v. United States District Court (1972)]. Moreover, because 'the very action in question has previously been held unlawful,' AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal." Walker's decision has been appealed and is now pending before the U.S. Court of Appeals for the Ninth Circuit, which held argument on the appeal on August 15. Blogger Glenn Greenwald noted the contrast between Walker's rulings and the arguments made by those favoring immunity in an October 18 post on his blog.

From the October 22 Wall Street Journal editorial headlined “The Wiretap Deal”:

As the Bush Administration winds down, one of its main tasks is preserving Presidential war-fighting powers against poaching by a hostile Congress and expansive judiciary. On this score, last week's Senate “compromise” on warrantless wiretaps is at best a mixed achievement. In return for Congress's blessing to continue this surveillance, the White House is ceding some of its Constitutional authority to unelected, unaccountable judges.

This is not to deny the real policy gains in the measure that was endorsed, in a bipartisan vote, by the Senate Intelligence Committee last week. Most important, the Director of National Intelligence and Attorney General will be able to approve overseas wiretaps without having to get a judge's approval in advance.

This is a major defeat for the political left and most House Democrats, who want to treat the war on terror like domestic law enforcement. Under their preferred rules, a U.S. President couldn't even eavesdrop on a foreign-to-foreign terror call if by chance that call was routed through an American telephone switch. This would amount to unilateral disarmament in the war on terror--and it is good to see that many Democrats recognize it as suicidal.

The Senate bill also grants prospective and retroactive immunity to the telecom companies that cooperated with the federal government on wiretaps after 9/11. The companies have since been hit with lawsuits by the ACLU and others who want to cripple the eavesdrop program via litigation if they can't do it through Congress. The companies will almost surely win these suits, but not without enduring a decade of costly legal harassment.

The larger principle is whether private individuals or companies should be punished for doing their patriotic duty when requested to do so by the government. In the wake of 9/11, President Bush and the Attorney General asked the telecom companies to cooperate in what they told the companies was a legal program. For centuries, the common law presumption has been that private parties should have legal immunity if they comply with such requests. In the absence of evidence that the government's request is illegal, private actors should be given the benefit of the doubt for cooperating.

* Additions made for clarity.