Seeker Blog

Wall Street Journal editorial 1/7/2006:

. . . But the more we learn about the practice, the clearer it is that the White House has been right to employ and defend it.

The issue is not about circumventing normal civilian Constitutional protections, after all. The debate concerns surveillance for military purposes during wartime. No one would suggest the President must get a warrant to listen to terrorist communications on the battlefield in Iraq or Afghanistan. But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That’s a loophole only a terrorist could love.

“The Wall” and “Probable Cause”:

In 1994, Deputy Attorney General Jamie Gorelick also asserted an “inherent authority” not just to warrantless electronic surveillance but to “warrantless physical searches,” too. The close associate of Hillary Rodham Clinton told Congress that much intelligence gathering couldn’t be conducted within the limits placed on normal criminal investigations–even if you wanted to for the sake of appearances. For example, she added, “it is usually impossible to describe the object of the search in advance with sufficient detail to satisfy the requirements of the criminal law.”

Some critics have argued that the surveillance now at issue could have been conducted within the confines of FISA. But that doesn’t appear to be true. FISA warrants are similar to criminal warrants in that they require a showing of “probable cause”–cause, that is, to believe the subject is an “agent of a foreign power.” But if the desired object of surveillance is a phone number found on 9/11 mastermind Khalid Sheikh Mohammed’s computer, you may not even know the identity of its owner and you can’t show probable cause.

. . .

The upside of the coming Congressional hearings, we guess, is that Americans will get a lesson in the Constitution’s separation of powers. We’re confident they’ll come away believing the Founders were right to the give the President broad war-fighting–including surveillance–powers.