WSJ REVIEW & OUTLOOK:
The best news about yesterday's White House-Democrat deal on overseas eavesdropping is that the ACLU and the anti-antiterror Internet mob are apoplectic. This can only be good for U.S. national security. Too bad the compromise also comes at the cost of a further erosion of Presidential war powers.
The deal would extend the 1978 Foreign Intelligence Surveillance Act to cover eavesdropping on terrorist communications overseas. A six-month extension – the Protect America Act – expired earlier this year and surveillance authorization on al Qaeda targets will start to expire in August. The new deal – assuming it isn't defeated by liberals on the House floor – would last for six years. It is thus a gift to the next President, who won't have to spend capital battling those who think that letting our spooks read al Qaeda's email inevitably means that Dick Cheney is bugging your bedroom.
On the bright side, the deal gives crucial immunity to the telecom companies that in good faith assisted this surveillance after 9/11. A reality of this Internet era is that the feds need these private companies to monitor terrorists; our spies can't merely bug the phones of Russian spies like they could during the Cold War. The left understands this and has hit the companies with some 40 lawsuits in an attempt to shut down the surveillance by the backdoor, without a political debate that voters might understand.
The telecom (and other) companies have thus made it clear that they can't afford to cooperate any longer without immunity. And so the deal will let the companies escape the lawsuits, for past and future cooperation, if they present to a federal judge a certification from the Attorney General that they are helping at federal request. The eavesdropping orders that expire in August can thus be renewed, so our security services won't have to "go dark" over the global antiterror battlefield.
The steep price of this authority is that from now on all of these overseas eavesdropping orders will require advance approval by a special FISA court of rotating judges. This will apply even to emails or calls that emanate in, say, Peshawar and never leave Pakistan – except that by the accident of our Internet age they may happen to move through American switching networks.
The deal does carve out an exception to this judicial preapproval for "exigent circumstances" involving urgent threats, but the FISA judges would still have to approve after the fact. No other nation in the world, to our knowledge, requires such deference to judges when tracking foreign enemies abroad.
This judicial review is supposedly to check abuses by the executive. But it also imposes a judge in the middle of the wartime chain of command. A judge, moreover, who may have no special intelligence expertise and no understanding of the enemy threat. For this reason, these judges will in practice tend to rubber stamp executive requests.
But the precedent of judicial intrusion is still dismaying because it will be used as a baseline to limit future Presidential discretion. As for potential abuses, at least an Attorney General and President are accountable to voters if they use this authority to spy on their political opponents. On the other hand, if a willful judge denies a surveillance request and Americans are killed as a result, he is accountable to no one. Recall the "wall" of separation between intelligence and law enforcement that developed in the 1990s under domestic FISA and which the 9/11 Commission so criticized. No one paid any political price for that.
The bill also empowers the Justice Department's Inspector General to investigate the post-9/11 origins of this overseas surveillance. Congress could always do this on its own, but that would mean taking political responsibility. Far better to empower a bureaucrat – and IGs are creatures of Congress in the executive branch – to issue some supposedly "independent" criticism.
We can appreciate why President Bush believes he must make these concessions. In the fight against a furtive enemy, intelligence and interrogation are the best weapons we have. While we wish Mr. Bush were willing to force an election-year showdown with Democrats, he's accountable for any intelligence damage in the interim. Meanwhile, if Democrats control the entire government next year, any new FISA limits would be far worse.
Still, these compromises may hurt future Presidents. To adapt the left's favorite conspiracy theory, we doubt this would be happening if Dick Cheney were still President.