Well, not everything President Obama and the 112th Congress managed to achieve is so terrible. With scarcely any notice, much less controversy, they did at least preserve one of the country’s most important post-9/11 antiterror tools.
One wonders just what their basis could be for the claim that warrantless wiretapping has been “one of the country’s most important post-9/11 anti terror tools.” After all, a comprehensive audit by the intelligence community’s own Inspectors General found exactly the opposite: That the program launched by President Bush was of no greater value than other intelligence tools; that it generated an enormous number of false leads that wasted time and resources; and that, indeed, it was difficult for intelligence officials to point to a single clear cut case where the program made a crucial contribution to a counterterror success. Much about that program remains secret, of course, but the Journal‘s assertion here is contradicted by the public evidence.
That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.
Perhaps we shouldn’t be shocked that a publication owned by Rupert Murdoch would be inclined to make light of concerns about illegal wiretapping, but surely it’s not that mysterious why someone might be more comfortable with a duly authorized surveillance statute that preserves a role for the courts, however anemic and symbolic, than with a president’s unilateral decision to simply ignore federal law and bypass the courts entirely. Still, they do have a point: Substantively the FISA Amendments Act is at least arguably more problematic than the Bush program, because the surveillance programs it authorizes are potentially much more sweeping than Bush’s was, at least on the basis of public reporting. And it really is telling that many people who expressed outrage over the Bush program seem totally uninterested in scrutinizing the track record of its successor now that we have a Democrat in the White House.
In September the House passed the “clean” five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky’s Rand Paul.
Like the Heritage Foundation, the Journal‘s editors conspicuously fail to mention what these “absolutist” amendments proposed. These included such radical proposals as an amendment to publish declassified summaries of major court interpretations of the law, unless it would harm national security to do so, on the wacky absolutist premise that Americans ought not to live under secret law. There was also the nutty fringe suggestion that Congress ought to have some idea of roughly how many Americans the NSA is spying on, and that a surveillance program theoretically aimed at foreigners should not be exploited to deliberately circumvent Fourth Amendment protections for citizens’ communications. What’s really remarkable is that the defeated amendments were about as far from “absolutist” as you can get, and still went down in flames.
This is a turnabout from 2007 and 2008, when letting U.S. spooks read al Qaeda emails or listen in on phone calls that passed through domestic switching networks supposedly spelled doom for the American Republic.
This is just not an accurate description of what the law permits. The programmatic surveillance authorized by the FAA is not limited to “al Qaeda e-mails,” or to the communications of terrorists; the “target” of surveillance can be any foreign group or individual, and the “target” need not actually be a party to the intercepted communications. Nor is it limited to communications that merely “pass through” domestic switching networks: Calls or e-mails sent and received by American citizens are also fair game. If the original Bush program is any guide, enormous numbers of entirely innocent communications are almost certainly being swept up in the process.
Hypocrisy aside, the irony is that the imperfect 2008 deal could have stood a little scrutiny. The concessions Mr. Bush was forced to make inserted the special FISA court into the wartime chain of command, requiring the national security agencies in most cases to get judicial permission to eavesdrop on even foreign enemies. We still don’t know if this new regime has compromised U.S. intelligence gathering.
This is also false. The law has never required court approval to eavesdrop on communications when both parties were known to be foreigners, and it still doesn’t. The vast majority of the NSA’s signals intelligence activities remain completely unregulated by FISA. The FISA Amendments Act covers wire communications between Americans and foreigners—which previously required far more rigorous individualized warrants if the wiretap was conducted in the United States—as well as cases where the location of one party to a communication can’t be determined in advance (as is often the case with e-mail). The latter presented a genuine problem that could and should have been solved far, far more narrowly. The FISA court’s minimal involvement in the FAA process—which is limited to rubber stamping broad “targeting procedures” developed by NSA—falls fall short of the traditional warrant approval process, and the idea that it could have “compromised U.S. intelligence gathering” seems frankly absurd.
If the “Imperial Presidency” is only imperial when the President is a Republican, at least that doesn’t represent a real political conviction, merely naked partisanship.
On this point, at least, the Journal is entirely correct: It is sad to see so many Democrats shed their concerns about executive surveillance powers—historically abused by presidents of both parties—now that their bête noire has left office. And with the FAA extended for five more years, Obama too is likely to be long gone before we have another occasion to debate the wisdom of these powers.