The Journal vs. the Fourth Amendment

There’s an astonishing editorial in the Wall Street Journal today about the FISA amendments that were passed in July. As you might recall, that legislation granted retroactive, blanket immunity for companies that illegally participated in the government’s wiretapping programs and substantially weakened judicial oversight of government surveillance of domestic‐​to‐​foreign communications. Under the new law, the government is no longer required to obtain an individualized warrant if it wishes to spy on your communications with people overseas. Rather, it can submit a “certification” that describes the general parameters of a broad eavesdropping program. Judges are required to approve the requests without ever seeing specific information about who would be targeted. The legislation also lengthened the grace period during which the government can conduct surveillance without any judicial oversight at all. Whereas emergency warrants were previously required within three days of the start of eavesdropping, the new legislation allows the government to spy for as long as four months while the judicial branch deliberates about its legality.


With all that in mind, I’m surprised to learn that the Journal seems to believe that the new, watered‐​down version of FISA is still too restrictive:

The Attorney General is only allowed to pursue threats up to certain legalistic edges, which contracted under this year’s political compromise that greatly expanded the role of the courts in intelligence gathering. Commissioner Kelly is practically begging people to think about what this means in the real world.


FISA was passed before the advent of disposable cell phones, encrypted emails and high‐​speed fiber optic networks. Now we live in a world where terrorist communications that originate in, say, Peshawar happen to move through U.S. switching networks. The executive branch already possesses the Constitutional authority to monitor such communications, but Democrats and the political left claimed it was “illegal” under FISA.


Then the anti‐​antiterror bar filed multibillion‐​dollar lawsuits against the telecom companies whose good‐​faith assistance after 9/11 made such surveillance possible. The goal was to shut down the program, and the telcos made it clear they couldn’t cooperate without Congress’s blessing. Forced to choose between a Democratic deal that gave the companies legal immunity or giving up a key U.S. antiterror tool, President Bush chose the former. The price — the one Commissioner Kelly is paying — was narrowing the government’s antiterror wiretapping powers.


What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is.

If the Journal believes it’s problematic for a “faceless FISA judge” who “answers to no one” to deny surveillance requests, then its quarrel isn’t with liberals, Democrats, or trial lawyers, it’s with the Constitution itself. The whole point of the Fourth Amendment is that “unelected judges” oversee the activities of law enforcement.


Moreover, the FISA bill the Journal derides makes it crystal clear that the government can intercept purely foreign‐​to‐​foreign communications without any judicial oversight whatsoever. And if our hypothetical Peshawar terrorist is communicating with an American, the government can take advantage of the new “certification” process that involves only cursory judicial review and doesn’t require any showing that the target is involved in terrorism. Only in cases where both ends of the communication are in the United States does the government require an individual warrant.


The Journal appears to take the extreme viewpoint that there should be no judicial oversight of the government’s domestic antiterrorism activities at all. But we know what happens when the government engages in surveillance without judicial oversight. History tells us that when judicial oversight is absent, abuses are inevitable. And if we create a terrorism exception to the warrant requirement, it would steadily grow to swallow the rule. Fighting terrorism is important, but we can do it without sacrificing judicial oversight.