Judicial Oversight vs. Unchecked Presidential Power

The Wall Street Journal has an editorial today that makes some blatantly misleading assertions about the FISA debate:

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.

This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor. We’re told that Hillary Clinton and Barack Obama are co-sponsoring the Dodd amendment, no doubt for political reasons as they compete for left-wing votes in their nomination fight. But they had better hope the effort fails, because as President they’d surely want the same telecom cooperation.

In fact, “the left” got Congress to “ban such wiretaps directly” thirty years ago, when Congress passed FISA in the first place. Glenn Greenwald cites chapter and verse here, but the Journal’s position doesn’t even make sense on its own terms. If warrantless domestic eavesdropping isn’t illegal, then why is the White House pushing so hard for immunity? If the White House or the telecom companies believe that they haven’t violated FISA, or that FISA is unconstitutional, they have every opportunity to make that argument to the courts. If the Ninth Circuit doesn’t give them a fair hearing, the Supreme Court—which now includes two Bush appointees and seven Republican appointees—certainly will. AT&T and Verizon haven’t advanced the argument that warrantless domestic wiretapping legal under FISA because they know perfectly well that it’s not.

The idea that Pres. Obama or Pres. Clinton will be unable to get the “cooperation” of the telecom companies in the future is equally misguided. FISA requires telecom companies to cooperate with the government after the government gets a warrant. What’s at issue in this debate isn’t whether companies should “cooperate”; everyone agrees that they should. The issue is whether the “cooperation” should occur with or without judicial supervision. Some of us believe that judicial supervision of domestic eavesdropping is an important safeguard for Americans’ privacy. Others, apparently including the Wall Street Journal’s editorial board, want to return us to the pre-FISA days when the NSA routinely rifled through innocent Americans’ international communications. Strangely enough, they never seem to phrase it that way.