The Wiretap Deal

As the Bush Administration winds down, one of its main tasks is preserving Presidential war-fighting powers against poaching by a hostile Congress and expansive judiciary. On this score, last week's Senate "compromise" on warrantless wiretaps is at best a mixed achievement. In return for Congress's blessing to continue this surveillance, the White House is ceding some of its Constitutional authority to unelected, unaccountable judges.

This is not to deny the real policy gains in the measure that was endorsed, in a bipartisan vote, by the Senate Intelligence Committee last week. Most important, the Director of National Intelligence and Attorney General will be able to approve overseas wiretaps without having to get a judge's approval in advance.

This is a major defeat for the political left and most House Democrats, who want to treat the war on terror like domestic law enforcement. Under their preferred rules, a U.S. President couldn't even eavesdrop on a foreign-to-foreign terror call if by chance that call was routed through an American telephone switch. This would amount to unilateral disarmament in the war on terror--and it is good to see that many Democrats recognize it as suicidal.

The Senate bill also grants prospective and retroactive immunity to the telecom companies that cooperated with the federal government on wiretaps after 9/11. The companies have since been hit with lawsuits by the ACLU and others who want to cripple the eavesdrop program via litigation if they can't do it through Congress. The companies will almost surely win these suits, but not without enduring a decade of costly legal harassment.

The larger principle is whether private individuals or companies should be punished for doing their patriotic duty when requested to do so by the government. In the wake of 9/11, President Bush and the Attorney General asked the telecom companies to cooperate in what they told the companies was a legal program. For centuries, the common law presumption has been that private parties should have legal immunity if they comply with such requests. In the absence of evidence that the government's request is illegal, private actors should be given the benefit of the doubt for cooperating.

Imagine a society in which everyone refused such requests for fear of being sued: No airplane passenger would dare point out suspicious behavior by another passenger, and no subway rider would speak up about a suspicious package. In the case of these wiretaps, the help of the telecom companies is crucial because electronic surveillance isn't any longer a matter of merely pulling microwaves from the sky as the feds could do during the Cold War. We now live in a world of packet switching and fiber-optic cable, where terrorist calls and emails go through telecom switching networks. The Senate immunity provision is critical to gaining this telecom access.

The problem with the bill is the price the Administration seems willing to pay to get Congress to approve what are core Presidential war powers under the Constitution. It includes a six-year sunset provision, which makes no sense against a terror threat that is likely to continue for decades. Mr. Bush should insist that if this policy makes sense for him, then it makes sense that his successors should not have to refight this same battle with Congress.

Worse for Presidential authority, the Administration has agreed to let the Foreign Intelligence Surveillance Court pass judgment after the fact on its overseas wiretap findings and procedures. This is an expansion of judicial power from the 1978 FISA law, which applied to domestic wiretaps. No President has ever conceded that his ability to eavesdrop on a foreign enemy abroad could be second-guessed by judges. And no court has found that the Constitution's Fourth Amendment protections against unlawful searches apply to foreigners working out of Karachi. This bill creates a bad precedent on both counts.

The bill even requires the executive to present the FISA court (and Congress) with a semi-annual review of the surveillance program and its procedures. Since when do courts, which operate under the limits of Article III of the Constitution, have the power to oversee such executive operations? Judges lack the expertise to make intelligence judgments, and in any case are accountable to no one if they object to some executive process and then order it halted.

The great irony here is that, in the name of checking "secret" Presidential power, Congress is giving enormous authority to judges who will also make decisions in secret and never have to answer to the voters. In our view, this entire process is an unconstitutional violation of the separation of powers. The President is allowing more judicial micromanagement of war decisions in order to please Congress, which prefers to pass the buck to the courts rather than take responsibility itself for overruling Presidential war decisions.

We realize that, in practice, the FISA court will almost always rubber stamp the Administration's wiretap decisions. And if it doesn't, the government can appeal to a FISA appeals panel and ultimately to the Supreme Court. The White House may believe that these procedural compromises are worth making to stop Congress from trying to undermine intelligence-gathering that is crucial to keeping the country safe.

Yet if the President won't protect the Presidency, who will? The Senate deal shows that Democrats realize Mr. Bush has the political whip hand on this issue, and the last thing they want going into an election year is to argue over limiting the U.S. ability to eavesdrop on al Qaeda. Mr. Bush should drive a harder bargain that protects the Constitution, as well as the public.