On Warrantless Wiretapping

[This is a little late by now, but I thought I’d put it out there anyway.]

A few days ago, the Wall Street Journal had an editorial about the wiretapping bill in the Senate. Let’s sample a few choice phrases:

The Senate takes up wiretapping of foreign terrorists this week, and the stakes couldn’t be higher.

Remember that “the stakes couldn’t be higher” when we get to the more specific parts of the editorial.

Not long ago Democrats seemed ready to move a bipartisan bill passed by the Senate Intelligence Committee last autumn. But under pressure from the anti-antiterror left, they are now bending and will try to weaken the bill on the Senate floor.

Ah, the “anti-antiterror” left, because wanting to cripple our antiterrorism capabilities is the only reason to oppose the wiretapping bill.

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.

So, according to the WSJ editorial board, the stakes that “couldn’t be higher” are a few civil lawsuits against some communications companies? Really?

As for the lawsuits’ causing these companies to cooperate less in the future, I don’t see how the two are related. After all, they’re being sued because what they did was legally wrong. They had a contractual obligation to protect their customers’ data, and I’m pretty sure they were also required to protect the data under the Electronic Communications Privacy Act.

If they had waited for a legal request from the FISA court like they were supposed to, they wouldn’t need immunity now. And if the new wiretap bill becomes law, they’ll be free and clear to cooperate. The idea that communications companies will be reluctant to comply with a legal wiretap request is absurd—most of them barely hesitated to comply with an illegal request.

The editorial goes on with a few paragraphs of liberal-bashing political gobbledygook, and then there’s this:

[Bush has] also acceded to…Oregon Senator Ron Wyden’s amendment requiring the FISA court to approve all overseas surveillance of U.S. citizens. This would go beyond current law, which allows eavesdropping of Americans abroad if the Attorney General makes a finding of “probable cause” of some criminal act. The Wyden provision would transfer that “probable cause” judgment to unelected judges — which means that Americans abroad who are suspected of aiding terrorists would get more wiretap judicial review than do Americans suspected of drug offenses.

Well, I’ll give them that last part. It is absurd that Americans suspected of drug offenses get less due process than Americans suspected of aiding terrorists. Obviously, Americans suspected of drug offenses need better protection. Perhaps we need a bill clarifying that the government has to respect the rights of it’s citizens everywhere in the world.

What the hell is this nonsense about “unelected judges”? Aren’t all federal judges unelected? More to the point, isn’t the Attorney General unelected? Aren’t the FBI agents who will be placing and monitoring the taps unelected?

The issue here is accountability. An Attorney General must answer to Congressional oversight, and ultimately to the voters through the President. By contrast, we still don’t know which FISA judges were responsible for imposing the infamous “wall” of separation between intelligence and law enforcement that so harmed our ability to fight al Qaeda in the 1990s.

Look, we have an independent judiciary, and this is how the system works. If government agents want to tap people’s phones, invade people’s homes, or otherwise invade their privacy, they need an independent judge to approve it. Maybe if this system were a little more transparent we wouldn’t have these problems.

Mr. Bush would do better by future Presidents if he opposed the Wyden amendment, and any further concessions would amount to an abdication as Commander in Chief. He has the political high ground on this issue. If Congress does more harm, he should declare that to protect the country he’ll use his Constitutional war powers to wiretap al Qaeda anyway and toss the issue squarely in the middle of the Presidential campaign.

Reading this, you’d think we were talking about tapping phone calls between al Qaeda cells in the Anbar Province, but the new FISA bill would allow the Bush administration to listen in on conversations by U.S. citizens without a warrant. If they gave up on that seemingly unconstitutional provision, they wouldn’t need the cooperation of the telecom companies, because the telecoms won’t get sued for complying with a legal court order for a wiretap.

Finally, I can’t help being suspicious about the intensity of the Bush administration’s efforts to derail the lawsuits against the telecom companies. The supposed justification—ensuring future cooperation—makes no sense, since future cooperation can easily be obtained by future court orders. It’s pretty clear the Bush administration has been playing fast and loose with the wiretapping laws, and they’re worried the lawsuits will reveal what they’ve been up to.