The Wall Street Journal-20080111-REVIEW - OUTLOOK Editorial-- Wiretap Politics
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REVIEW & OUTLOOK Editorial): Wiretap Politics
Senator Chris Dodd's Presidential campaign died with a whimper in Iowa. But he still seems to be dictating national security policy to fellow Democrats on Capitol Hill, and unless the Bush Administration is willing to fight, perhaps to the next President too.
We're told that Senate Majority Leader Harry Reid is saying privately he now won't attempt to update the 1978 Foreign Intelligence Surveillance Act (FISA) on the wiretapping of al Qaeda suspects. Instead, he'll merely support another 18-month extension of the six- month-old Protect America Act. Among other problems, the temporary bill includes no retroactive immunity for the telecom companies that cooperated with the feds after 9/11.
In October, the Senate Intelligence Committee passed a bill updating FISA on a bipartisan vote led by Democratic Chairman Jay Rockefeller. It would provide a Congressional blessing for warrantless wiretaps of suspected al Qaeda communications overseas that happen to pass through U.S. switching networks, as many do in a world of packet switching and fiber optics. The bill also gives retroactive immunity to the phone companies, which have been sued by the likes of the ACLU for hundreds of billions of dollars for the crime of answering a President's request for assistance.
Mr. Reid brought the bill to the Senate floor last month. But Senator Dodd rose to object to the immunity provision, among other things, and Mr. Reid pulled the plug. MoveOn.org took a victory lap. And now Mr. Reid seems to be further bending to the anti-antiterror left by trying to kick the issue past this year into what he hopes will be a Clinton or Obama Presidency.
The Bush Administration is aware of Mr. Reid's plans and is debating a response, and we hope Chief of Staff Josh Bolten and the President don't flinch now. Immunity for the telcos is not only fair but crucial. As the Senate Intelligence Committee concluded, these companies acted in response to written requests or directives assuring that their activities were authorized by the President. "The extension of immunity," wrote the panel in its conference report, "reflects the Committee's determination that electronic communication service providers acted on a good faith belief that the President's program, and their assistance, was lawful."
Protection from lawsuits also makes sense given the nature of the terrorist threat. There could well be another attack, or a future need for the private sector's help in preventing one. If a phone company or airline or bank is worried about Senator Dodd and the tort bar making its life miserable, it will be less likely to cooperate with the government. And the country will be less safe as a result.
No doubt some will argue that Mr. Bush should accept the 18-month extension, and thus at least have Congressional support for warrantless wiretaps during the rest of his term. But the President has said himself that he believes he has the Constitutional authority to monitor foreign enemies, and an appellate court that has opined on the matter agreed. If Democrats fail to honor their promise to modernize FISA in a way that protects American security, Mr. Bush can act on his own authority and hold Congress responsible for not cooperating.
Mr. Bush often says he wants to leave his antiterror policies on firmer political and legal ground for his successor. By accepting an 18-month extension, however, he'd be forcing the next President to spend scarce political capital on this issue early in the term. We're confident that even a Democratic President would want wiretap powers -- despite any posturing for primary voters -- but he or she might be willing to throw the telcos over the side. As the President who asked the telecom companies to cooperate, Mr. Bush has an obligation to protect them from damage.
Mr. Bush also has all the high political cards here. Most Americans think it's preposterous that a judge should have to approve listening to foreign enemies, and a fight over this in an election year is the last thing smart Democrats want. Mr. Bush could help his successor and the public by promising to veto any FISA extension that isn't permanent and infringes too much on Presidential war powers. If this issue were such good politics for Democrats, Chris Dodd might have done better than sixth in Iowa.
