The WSJ Sells Out

The lead editorial in today's Wall Street Journal characterizes the Congressional hearings on the NSA eavesdropping program as "A Congressional power grab, using judges as a cudgel." Here's the gist:

Judging by Monday's hearing, Senators of both parties are still hoping to stage a Congressional raid on Presidential war powers. And they hope to do it not by accepting more responsibility themselves but by handing more power to unelected judges to do the job for them. . . . What FISA boils down to is an attempt to further put the executive under the thumb of the judiciary, and in unconstitutional fashion. The way FISA works is that it gives a single judge the ability to overrule the considered judgment of the entire executive branch. In the case of the NSA wiretaps, the Justice Department, NSA and White House are all involved in establishing and reviewing these wiretaps. Yet if a warrant were required, one judge would have the discretion to deny any request. . . . [T]he President is accountable to the voters if he abuses surveillance power. Fear of exposure or political damage are powerful disincentives to going too far. But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy. This is one reason the Founders gave the judiciary no such plenary powers.

There is so much nonsense in this that it is hard to know where to begin. But let's start with the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I will assume that the WSJ does not consider this to be an unconstitutional limitation on the President's war-making power. But if that is true, then whom, apart from the "unelected judiciary" does the WSJ suppose is charged with the responsibility for issuing the required warrants and for determining if probable cause exists? Congress? The Executive? No one? And, if it is the judiciary, how can one argue that the "unelected" status of federal judges somehow disqualifies them from making those determinations? The Constitution itself provides that federal judges are to be appointed, not elected, with the advice and consent of the Senate. So what exactly is this claim that FISA is unconstitutional because it places the decision of whether to allow such searches in the hands of unelected judges? It is an argument, in effect, that the Constitution itself is unconstitutional.

If one believes that the Forth Amendment means what it says (as one would suppose the WSJ would do) then what FISA actually does is to impose extra-constitutional limits, not on the executive, but on the judiciary by creating a single, special, secret (and by all accounts highly accommodating) court and then divesting all other federal courts of any jurisdiction to rule on any warrant requests that are alleged to implicate national security.

A second point. For the Journal to argue that the appropriate -- and apparently only -- check on the President's power is his "accountab[ility] to the voters [and] [f]ear of exposure or political damage" is to argue, in effect, that we do not need a Constitution or a judiciary. As no less a conservative icon than Justice Scalia has pointed out, the major purpose of the Constitution is to protect rights considered fundamental from the "tyranny of the majority" and the most important function of the courts is to tell the majority to "take a hike" when it oversteps the bounds imposed by the Constitution.

Third, the editorial appears to entirely miss the double irony in its position. As its editorials on the Roberts and Alito nominations make clear, the WSJ is an ardent devotee of the doctrine of "strict constructionism." Judicial "creation" of rights or powers that are not found in the literal language of the Constitution is anathema. Yet, in this case, the Journal is prepared to "find" a right of the President to conduct warrantless searches in the "penumbras" that the Journal discerns around the Constitutional provisions vesting executive power in the President and designating him as commander-in-chief of the armed forces. Moreover, it does this despite the fact that the President is also charged with the duty to see that the laws are faithfully executed and a Fourth Amendment that, on its face at least, would appear to make all warrantless searches illegal. And here is the other, even sweeter irony: To reach this conclusion, the Journal has to rely on a body interpretational of law made by that same "unelected judiciary" that it so scorns.

The final startling thing about the editorial is that it swallows, entirely uncritically, the Executive's claim that the scope of the eavesdropping program is strictly limited.

Far from being some rogue operation, the Bush Administration has taken enormous pains to make sure the NSA wiretaps are both legal and limited. The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself.

How, pray tell, does the WSJ know this? The "pains" the Administration has taken to make sure the program is legal is the very question being debated, so this much of the assertion is just ipse dixit. The real question revolves around the "pains" that have been taken to make sure that the eavesdropping is "limited." The facts that the program it is "monitored by lawyers", "reviewed" every 45 days by the President (even if true) hardly provides assurance that the program is actually limited to intercepting calls by or to "known" Al Queda operatives. The only basis we have for believing such a limitation exists is the assurance of the Executive itself. Yet, the whole point behind the Fourth Amendment (as well as FISA) is that assurances of reasonableness by the very people who want to conduct the searches can not be trusted. Those assurances need to be tested before a neutral arbiter: the unelected judiciary.

Therein lies the most disappointing thing of all about the editorial. The WSJ editorial page holds itself out as being committed to conservative principles. The hallmark of a conservative, however, at least one that has not slipped over into fascism, is skepticism of government. It is both sad and a bit frightening to see the WSJ so completely abandon this principle.