The left's back door attempt to gut intelligence gathering

Wall Street Journal Editorial:

The Senate takes up wiretapping of foreign terrorists this week, and the stakes couldn't be higher. Not only for the ability of our spooks to eavesdrop on al Qaeda, but also regarding Congressional and judicial intrusion into Presidential war powers. Some damage seems certain, but the issue is how much damage President Bush will accept.

The debate concerns an effort to revise the 1978 Foreign Intelligence Surveillance Act (FISA) to bless spying without a court order on terrorist communications that originate overseas but move through U.S. switching networks. We believe -- and appellate courts have stated -- that the President already has such authority under the Constitution. But the political left claims this is "illegal" under FISA, and Mr. Bush has agreed to work with Congress on a compromise.

Not long ago Democrats seemed ready to move a bipartisan bill passed by the Senate Intelligence Committee last autumn. But under pressure from the anti-antiterror left, they are now bending and will try to weaken the bill on the Senate floor. Given that the House is likely to pass something far worse, the Senate debate will determine how much the U.S. ties its own hands in the fight against terrorists.

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.

This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor. We're told that Hillary Clinton and Barack Obama are co-sponsoring the Dodd amendment, no doubt for political reasons as they compete for left-wing votes in their nomination fight. But they had better hope the effort fails, because as President they'd surely want the same telecom cooperation. Care to make this an issue, Senator McCain?

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Which brings us to the larger problem with this entire exercise. Congress's overriding goal here is to further hamstring our intelligence war-fighters with legal rigidity and complexity, but to do so in a way that dodges its own oversight duties by passing the buck to FISA judges. White House lawyers know this is unconstitutional, but intelligence officials say it's more important to have Congress's blessing for these wiretaps. And because the telecom companies won't cooperate without immunity, Mr. Bush is being bullied into trading away some of his own power to get that immunity.

Mr. Bush would do better by future Presidents if he opposed the Wyden amendment, and any further concessions would amount to an abdication as Commander in Chief. He has the political high ground on this issue. If Congress does more harm, he should declare that to protect the country he'll use his Constitutional war powers to wiretap al Qaeda anyway and toss the issue squarely in the middle of the Presidential campaign.

McCain should be making an issue of the Democrats attempts to gut intelligence gathering through the use of law suits. With Clinton and Obama backing the bud guys on this issue it gives him a way to demonstrate there is a significant difference in his candidacy and theirs. It also has the benefit of being the right thing to do for the country.

Democrats have yet to make a rational case for this attempt to shut down intelligence gathering by making the companies who cooperate liable. Their central problem is they cannot demonstrate anything beyond their own paranoia in making the case that anyone is harmed by this intelligence gathering, other than the enemy. It is an outrage that they would want to make it more difficult to intercept enemy communications with their agents in the US. They will be the first one to point fingers at someone else when those communications are not caught and disaster follows. It is this kind of thinking that puts politics in such low regard.