Editore"s Note
Tilting at Windmills

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January 16, 2009

ABOUT THAT 'VINDICATION'.... In light of the FISA Court's ruling yesterday on the Protect America Act, several far-right voices are patting themselves on the back. The Wall Street Journal's editorial page, which appears to be making a sincere effort to be even less accurate, has an item today with a boastful headline: "The Wiretap Vindication."

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.

In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval.

I'm afraid the Journal's editorial board has been reading too many far-right blogs.

Some aspects of the debate over warrantless searches are open to debate and legal interpretations, but the Wall Street Journal is simply, objectively, factually wrong.

The court decision, released yesterday, refers to the Protect America Act; it does not "vindicate" supporters of Bush's NSA program. The case was not about "the government's Constitutional authority to collect national-security intelligence without judicial approval"; the case was about the authority of Congress to expand the executive's surveillance powers.

It really isn't that complicated, and yet, conservative bloggers, the New York Times, and the AP got it wrong yesterday, and the Wall Street Journal is doing a victory dance today.

A.L. tries to summarize this in a way that even the Journal's editorial board can understand:

1) From 1978-2006, there was a law in place that said "don't do X; if you do X, it's a felony."

2) The Bush administration secretly did X.

3) When it was caught doing X (a felony under existing law), it argued that it had the "inherent authority" to do X regardless of what the law says, a claim that has no support in constitutional case law.

4) This "inherent authority" argument was emphatically rejected by the Supreme Court in the Hamdan case in 2006 in a virtually identical context, causing widespread wailing and gnashing of teeth among right wing true believers (see McCarthy, Andrew).

5) The Bush administration, after a series of adverse court rulings, was finally forced to go to Congress in 2006, and Congress amended the law to expressly allow the Bush administration to do X.

6) Now the FISA Court of Review has ruled that Congress was within its authority to pass that law and so the Bush administration is free to do X.

7) Vindication!

We can now all look forward to the Journal's correction, right?

Steve Benen 1:25 PM Permalink | Trackbacks | Comments (18)
 
Comments

Great explanation! Thanks.

Posted by: CJ on January 16, 2009 at 1:25 PM | PERMALINK

The Journal does not know this word "correction."

The Journal knows Bush has kept us safe from another attack because there has not been another attack.

The Jounal creates its own reality, just like its overlords.

Posted by: WSJ on January 16, 2009 at 1:39 PM | PERMALINK

I'm afraid the Journal's editorial board has been reading too many far-right blogs.

No. Intellectual dishonesty is a tradition that dates back decades for the WSJ editorial board.

Posted by: mudwall jackson on January 16, 2009 at 1:52 PM | PERMALINK
6) Now the FISA Court of Review has ruled that Congress was within its authority to pass that law and so the Bush administration is free to do X.

That depends on what the definition of "is" is. No, seriously—the Protect America Act sunsetted in 2008 (February, I think, but the exact date isn't important here), so this ruling doesn't mean that Bush is (in the present sense) free to do anything for the brief period of time he remains in the White House.

Posted by: cmdicely on January 16, 2009 at 2:09 PM | PERMALINK

When do you know if a republican is lying?
His or her mouth is open.

Posted by: Gandalf on January 16, 2009 at 2:17 PM | PERMALINK

The Wall Street Journal Editorial Page IS a far right blog.

Posted by: The Antibob on January 16, 2009 at 2:32 PM | PERMALINK

It all sort of makes me think back to when my congresscritter was asked why she voted for that awful bill. She said ...no problems, we can address it later.
ugh

Posted by: jbofmo on January 16, 2009 at 2:38 PM | PERMALINK

Funny - I didn't get past their lead editorial, claiming Bush had successfully prevented any terrorism fatalities in the US since 9/11. If that is going to be the yardstick of a successful presidency then, well, he failed again.

What is it about anthrax that causes conservatives to forget about the five people who died from that terror event?

Posted by: Joe on January 16, 2009 at 2:45 PM | PERMALINK

The thing is - the Protect America Act will make it politically difficult for the Obama admin to pursue prosecutions for these felonies.

Yes, it's true that the law was on the books prior to 2006. And yes, it's true that the Bush admin broke the law of the land prior to 2006.

But since the PAA was widely supported by both parties, it will be tough for Obama's team to say, "We think the law should have been different, but we're still going to prosecute people who broke the law that we felt shouldnt have been in place".

I'm not saying that it's legally impossible - in fact it would appear legally that it's a pretty clear case. I'm just saying that it would look like a partisan witchhunt for Obama's crew to prosecute the breaking of a law which they wanted to see overturned.

Dems would look very small - it would be easy for the GOP to say "These people [the lawbreaking wiretappers] were keeping our country safe. The Democrat Party agrees that they were doing important work, as evidenced by the fact that they voted to repeal the law. Yet they're still going after these American heroes in order to score political points with the far left."

The Dems blew it by voting for the PAA. Another shameful failure of the party during the Bush years. It would be nice if the Dems had priciples, but by and large, they dont seem to.

Posted by: TG Chicago on January 16, 2009 at 2:59 PM | PERMALINK

Well, I must be dense, because it seems to me that if the Supreme Court says that Congress has the authority to pass a law, then they are saying that the law in question is not unconstitutional. If it were unconstitutional, wouldn't the SC say that Congress didn't have the authority? I still think we lost on this one. Vindication is the wrong way to look at it. The Supreme Court has a history of bad decisions, that doesn't vindicate anything. Did Dred Scott vindicate white supremecists? No, it was just a bad decision. Like this one...

Posted by: Janice Sinclaire on January 16, 2009 at 3:06 PM | PERMALINK
Well, I must be dense, because it seems to me that if the Supreme Court says that Congress has the authority to pass a law, then they are saying that the law in question is not unconstitutional.

Just to point out: the Foreign Intelligence Surveillance Court is not the Supreme Court.

Posted by: cmdicely on January 16, 2009 at 3:08 PM | PERMALINK

It really isn't that complicated, and yet, conservative bloggers, the New York Times, and the AP got it wrong yesterday, and the Wall Street Journal is doing a victory dance today.

Stunning ignorance or raging dishonesty, you decide.

Posted by: ckelly on January 16, 2009 at 3:15 PM | PERMALINK

This showed up on CNN this morning too, with the graphic "Bush wiretaps 'legal' -- Intelligence Court." Like to see the producer responsible for that brought up before an Intelligence Court.

Posted by: ericfree on January 16, 2009 at 4:01 PM | PERMALINK
Stunning ignorance or raging dishonesty, you decide.

I think its a combination of both, along with a lack of concern for the truth. The exact balance between the three factors differs between the various parties.

Posted by: cmdicely on January 16, 2009 at 5:07 PM | PERMALINK

"I'm afraid the Journal's editorial board has been reading too many far-right blogs."

?? The WSJ editorial board IS a far-right blog.

Posted by: Broken on January 16, 2009 at 6:30 PM | PERMALINK
The WSJ editorial board IS a far-right blog.

Er, not exactly.

(WSJ editorial board) : (far right blog) :: MLB : (Little league)

Posted by: cmdicely on January 16, 2009 at 6:37 PM | PERMALINK

This is the same WSJ editorial board who just last summer mocked what they called warnings of economic 'doom and gloom'. Now that everyone gets their stock quotes instantly, the WSJ is not even useful as a financial report, just a reactionary fishwrap masquerading as a source of judicial analysis for ignorant 'bidnessmen'.

Posted by: melior on January 16, 2009 at 6:43 PM | PERMALINK

Bush/Cheney et al are pulling out all the stops on this one. I don't remeber a full court press like this after Iran-contra.

Bush should have watch the poll numbers more closely. Most people want his a$$ in jail, and that's a big problem for him.

Posted by: Glen on January 16, 2009 at 11:17 PM | PERMALINK




 

 
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