"Unwarranted," Part II: Journal Back at It Today

PHUTATORIUS
It would be petty, on a day this mo[nu]mentous, to take on the nuance-proof editorial board at the Wall Street Journal. And petty I am. So here goes:
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Building on last week's endeavor to misread the import of a judicial decision to defend Bush's secret program of warrantless wiretapping, the Journal runs an editorial today about Att'y General nominee Eric Holder's position on the question, quoting a confirmation hearing exchange between Holder and Senator Orrin Hatch:

Mr. HATCH: "Back to my prior point, the President's inherent authority under the Constitution. Can that be limited by a statute? You're relying on a statute as though that's binding on Article II of the Constitution."

Mr. HOLDER: "Well, the President obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier. There are powers that the President has delegated to him — that he has — and Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always a tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the President, the executive branch interacting with the legislative branch and coming up with solutions . . ."

Mr. HATCH: "That still doesn't negate the fact that the President may have inherent powers under Article II that even a statute cannot vary."

Mr. HOLDER: "Sure."

From here the editorial jumps to its logically untenable "Gotcha!" conclusion:

So let's see. Mr. Holder now concedes that Presidents have inherent powers that even a statute can't abridge, notwithstanding his campaign speeches. . . . [H]is concession is further evidence that the liberal accusations about "breaking the law" and "illegal wiretaps" of the last several years were mostly about naked partisanship. Mr. Holder's objection turns out to be merely the tactical political one that the Bush Administration would have been better off negotiating with Congress for wiretap approval, not that it was breaking the law. Now he tells us.

Uh, no, Journal. No — you're wrong, because Eric Holder did not tell you that. Nothing Holder said about the Article II war powers generally (to wit, that they exist) is inconsistent with his position on whether bulk warrantless wiretapping in secret is one of them (to wit, that it's not).

At this point, it's just laughable. At least last week the Journal did the good journalist's work of obfuscating the truth, by conveniently leaving out any discussion of what the FISA review court decision actually held. Here they quote an actual transcript, then — with the evidence right there in the column — try to make triumphal hay on a premise that Holder said something different.

The Journal's Celebration of the FISA Review Court Ruling: "Unwarranted"

PHUTATORIUS
An August 2008 decision of the Foreign Intelligence Surveillance Court of Review, disclosed only yesterday, held that the Bush Administration's warrantless-wiretapping program does not violate the Fourth Amendment.

Cue editorial triumphalism from the Wall Street Journal:
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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.

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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.

But all this hoo-hah from the Journal is unwarranted (ba-dum-bum). Here's the thing: there are two warrantless-wiretapping programs. There's the first program, which the Administration took up in secret after 9/11 without approval from Congress and concealed from all of us until word of it was leaked in 2005. And there's the program to which Congress gave temporary assent in 2007's Protect America Act, and its final approval last July.

The FISA Review Court's ruling had to do with the second program, and it only held that the Fourth Amendment did not require warrants in these circumstances, and that any constitutional privacy concerns were alleviated by the Administration's scrupulous compliance with certain safeguards that Congress, and the Administration itself by executive order (to its credit), had impressed upon the process — including a requirement that the Administration "reasonably believe" that the surveillance targets are "located outside the United States."

The FISA Review Court had nothing to say about the first program, which I think we can assume contained none of the procedural safeguards that made the difference to the court here (I say "assume" because the Administration refused to tell us how the program worked). At a minimum, the first program was undertaken in clear violation of the wiretap and FISA laws, which required individual approval of each and every wiretap.

And I'd venture to say it was exactly the uproar over the secrecy and intrusiveness of the first program — as the Journal puts it, the "political hysteria and media dishonesty about George W. Bush 'spying on Americans'" — that resulted in Congress and the Administration writing the program-saving safeguards into law.

Hate on the "liberal media" all you want, Wall Street Journal, but this is democracy at its finest: the press ferrets out secret abuses of power, and the law corrects them.