I've said this before: reading the
Wall Street Journal's editorial page is like reading tea leaves. It gives you the administration's talking points and sometimes provides a heads-up on what to expect next from the Right. Which is why I'm diarying
today's lead editorial, "Thank You for Wiretapping."
It begins with a swipe at Russ Feingold and Lindsey Graham, who have criticized George W. Bush for conducting wiretaps without compliance with the Foreign Intelligence Surveillance Act:
Senators, please stop stripping the Presidency of its Constitutional authority to defend America...
There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power--and endangering the country in the process.
Reasonable people might construe that as a veiled threat.
Next, the
Journal repeats the Bush/Cheney/Gonzalez argument that the President has boundless national security powers. Not to be confused with his boundless commander-in-chief power to pull U.S. citizens off planes and detain them for years without charges and with access to courts. But I digress
Back to the editorial:
The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.
In other words, there is a class of wiretaps subject to no legislative--or judicial--supervision. And if there is no supervision, we don't know how large a class it is, right?
The Journal also cited In re Sealed Case, a 2002 Foreign Intelligence Surveillance Court of Review decision, in support of the administration's argument. Not so fast. The issue in that case was whether gaining foreign intelligence had to be the "primary purpose" of surveillance of a foreign power. The lower FISA court said that it was, the Court of Review said that the Patriot Act changed the standard to "a significant purpose" of the surveillance. (The administration wanted the standard lowered to "a purpose," but even the post-9/11 Congress wasn't willing to go that far.)
The Journal cherry-picked the Court of Review decision, stating:
In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."
Just one problem. Troung was not a FISA case but one involving the President's inherent power to conduct foreign relations. Apples and oranges.
The Journal also argued in effect, "trust us; abuses couldn't have taken place":
[T]he process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days.
But they're just getting warmed up:
In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear.
Next up is an attack on checks and balances:
As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn't get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees.
And, finally, we come full circle to another veiled threat:
By contrast, the Times' NSA leak last week, and an earlier leak in the Washington Post on "secret" prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame.
Feeling queasy?