WSJ falsely claimed that FISA court approved "warrantless wiretapping program" exposed in 2005

››› ››› RAPHAEL SCHWEBER-KOREN

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."

Posted In
Justice & Civil Liberties, Domestic Spying
Network/Outlet
Wall Street Journal, Los Angeles Times
We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.