WSJ falsely claimed that FISA court approved "warrantless wiretapping program" exposed in 2005
SUMMARY: A Wall Street Journal editorial claimed that, in a recently released decision, the Foreign Intelligence Surveillance Court of Review affirmed the legality of the Bush administration's "warrantless wiretapping program" that "was exposed in 2005." In fact, the decision applies only to surveillance conducted pursuant to a 2007 congressional statute and does not say anything about the legality of the warrantless wiretapping program exposed in 2005.
A January 16 Wall Street Journal editorial falsely claimed that, in a recently released decision, the Foreign Intelligence Surveillance Court of Review affirmed the legality of the Bush administration's "warrantless wiretapping program" that "was exposed in 2005." The editorial stated: "Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act [FISA]. Well, as it happens, the same FISA court would beg to differ." In fact, the decision applies only to surveillance conducted pursuant to a 2007 congressional statute, the Protect America Act (PAA), and does not say anything about the legality of the warrantless wiretapping program exposed in 2005.
Indeed, the Journal editorial later noted that the court decision "applies only to the stopgap FISA measure in place between 2007 and 2008."
A January 16 Los Angeles Times article made a similar false suggestion, asserting that CIA Director Michael Hayden, "an architect of the warrantless wiretapping operation" when he was the director of the National Security Agency in 2001, "won a measure of vindication with the release of a court ruling Thursday that supported the administration's right to compel U.S. telecommunications companies to cooperate with the eavesdropping effort."
In fact, the court states that its decision is "to uphold the PAA as applied in this case" and specifically "caution[s] that our decision does not constitute an endorsement of broad-based, indiscriminate executive power." From the decision (emphasis added):
[W]e caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case.
We need go no further. The decision granting the government's motion to compel is affirmed; the petition for review is denied and dismissed; and the motion for a stay is denied as moot.
From the Wall Street Journal editorial headlined "The Wiretap Vindication":
Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.
In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval. The case was not made public before yesterday, and its details remain classified. An unnamed telecom company refused to comply with the National Security Agency's monitoring requests and claimed the program violated the Fourth Amendment's restrictions on search and seizure.
[...]
FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed. Though the decision applies only to the stopgap FISA measure in place between 2007 and 2008, it sets a precedent.
For all the political hysteria and media dishonesty about George W. Bush "spying on Americans," this fight was never about anything other than staging an ideological raid on the President's war powers. Barack Obama ought to be thankful that the FISA court has knocked the bottom out of this gambit, just in time for him to take office.
From the January 16 Los Angeles Times article headlined "Departing CIA chief Hayden defends interrogations":
Hayden is widely credited with restoring stability and morale during more than two years as CIA director. But his ardent defense of the agency's activities may help explain why he was not asked by Obama to stay in the job.
Hayden is also tied to other Bush administration controversies. As the head of the National Security Agency after the Sept. 11 attacks, he was an architect of the warrantless wiretapping operation.
Hayden won a measure of vindication with the release of a court ruling Thursday that supported the administration's right to compel U.S. telecommunications companies to cooperate with the eavesdropping effort.
"My reaction?" Hayden said Thursday, referring to the ruling. "Duh."
W had better ink up that pardoning pen after Holder's confirmed.
Was the 2007 legislation enacted to restrict and rein in the specific manner in which the Administration was surveilling without a warrant under FISA, or was it enacted simply to place congress' stamp of approval on the surveillance?
Congress has no say in approving or denying warrants, that's the job of the courts. Remember? That whole separate branch of government thing.
Neither. It didn't address the prior illegal warrantless surveillance at all.
It's my understanding that the PAA, enacted by congress, authorized the administration to direct telecommunication companies to assist in eavesdropping on conversations between someone in the U.S and a foreign country, without a warrant.
In my glance at the decision referenced above, I saw there was a 4th amendment challenge to the statute. The Court held the statute withstood constitutional scrutiny.
If the statute simply gave congressional authorization to what the Administration was doing prior to its enactment, and the statute was declared constitutional in that it did not authorize unreasonable searches, then wouldn't that mean that the Administrations' actions before 2007 likewise did not constitute unconstitutional searches? That's why I asked whether the PAA was enacted to curtail the administration, or simply give their actions congressional impetus
Steve, I'd like to change my answer to your first question. While the PAA didn't immunize the Bush administration for prior warrantless surveillance, it effectively legalized it going forward, and, as far as I can tell, without any additional restrictions, other than the sunset provision.
This court ruling only says that the PAA doesn't violate the 4th amendment. In other words, Congress has the authority to pass legislation that allows the President to conduct this type of surveillance without a warrant. It doesn't excuse the warrantless surveillance that occured prior the the passage of the PAA, which was in violation of the existing FISA statutes.
The Bush administration claims that they had the authority to conduct this surveillance under the AUMF, but the Supreme Court decisions in Hamdan and Boumediene make it unlikely that the courts would agree.
I appreciate your clarification, and it reveals, in my view, some ironic results from the court's decision.
The court ruled that searches pursuant to the PAA do not violate the 4th amendment. If the constitutional searches authorized by the PAA are the same kinds of searches that the Administration had been conducting, doesn't that necessarily mean that the Administration's searches did not violate the 4th amendment? If the search is constitutional under the 4th amendment, congress' authorization doesn't make it any more constitutional. Either it's reasonable or unreasonable under the constitutution, and that's a determination for the court.
If that is the case, then the existing FISA statutes, which the administration violated, circumscribed the govt's power. It made searches that were otherwise constitutional, (at least according to this court), nonetheless illegal. I suppose it's not uncommon for the legislature to provide more protections than those provided in the constitution . . . State laws do it all the time
As mentioned, I could only scan the opinion, as I'm at work . . . . So, I could be misconstruing its ramificatiosn . ..
I've only scanned it as well (at work, also), but I think we see it the same. The FISA court apparently felt sufficient safeguards were in place to protect individual rights. However, this may be headed to the Supreme Court.
And, yes, FISA was enacted to limit the executive's surveillance authority and to provide legislative and judicial oversight after Nixon's abuses of that authority.
Wall Street Journal editors seem to have forgotten that in January 2006, the non-partisan Congressional Research Service (of the Library of Congress) examined the warrantless surveillance program," politely finding it constitutionally quaky. At which point Bush administration attorneys bent themselves pretzel-shaped trying to show that attorneys at the Congressional Research Service were wrong.
Next the WSJ opinion page crew will probably tell us the "liberal" New York Times didn't have the warrantless surveillance story in October 2004 and didn't sit on it 13 months. That withholding of a Pulitzer-worthy story helped Bush to a second term. Down the memory hole, as usual.
Jerry Elsea