ABOUT THAT ‘VINDICATION’…. In light of the FISA Court’s ruling yesterday on the Protect America Act, several far-right voices are patting themselves on the back. The Wall Street Journal‘s editorial page, which appears to be making a sincere effort to be even less accurate, has an item today with a boastful headline: “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.
I’m afraid the Journal‘s editorial board has been reading too many far-right blogs.
Some aspects of the debate over warrantless searches are open to debate and legal interpretations, but the Wall Street Journal is simply, objectively, factually wrong.
The court decision, released yesterday, refers to the Protect America Act; it does not “vindicate” supporters of Bush’s NSA program. The case was not about “the government’s Constitutional authority to collect national-security intelligence without judicial approval”; the case was about the authority of Congress to expand the executive’s surveillance powers.
It really isn’t that complicated, and yet, conservative bloggers, the New York Times, and the AP got it wrong yesterday, and the Wall Street Journal is doing a victory dance today.
A.L. tries to summarize this in a way that even the Journal‘s editorial board can understand:
1) From 1978-2006, there was a law in place that said “don’t do X; if you do X, it’s a felony.”
2) The Bush administration secretly did X.
3) When it was caught doing X (a felony under existing law), it argued that it had the “inherent authority” to do X regardless of what the law says, a claim that has no support in constitutional case law.
4) This “inherent authority” argument was emphatically rejected by the Supreme Court in the Hamdan case in 2006 in a virtually identical context, causing widespread wailing and gnashing of teeth among right wing true believers (see McCarthy, Andrew).
5) The Bush administration, after a series of adverse court rulings, was finally forced to go to Congress in 2006, and Congress amended the law to expressly allow the Bush administration to do X.
6) Now the FISA Court of Review has ruled that Congress was within its authority to pass that law and so the Bush administration is free to do X.
We can now all look forward to the Journal‘s correction, right?