Tapping In
Warrantless wiretaps, the Alito "filibuster" and more.

Monday, January 30, 2006 12:01 A.M. EST

Paul Gigot: This week on "The Journal Editorial Report," the Bush administration goes on the offensive, making the case for its warrantless wiretapping as Democrats try to make political hay. A chief architect of that program is here. And as Judge Samuel Alito sails toward Supreme Court confirmation, we'll dissect the politics of the vote and look ahead to the legacy of a Roberts-Alito court. Those topics, plus our weekly "Hits and Misses."

President Bush: I have the authority, both from the Constitution and the Congress, to undertake this vital program. The American people expect me to protect their lives and their civil liberties, and that's exactly what we're doing with this program. I'll continue to reauthorize this program for so long as our country faces a continuing threat from al Qaeda and related groups.

Gigot: As a deputy assistant attorney general from 2001 to 2003, my guest this week was a chief architect of many of the Bush administration's post-Sept. 11 policies, including the one currently at the center of the political storm. John Yoo joins me now from Berkeley, Calif. John, thanks for being here.

Yoo: I'm happy to be with you.

Gigot: The critics of the president's wiretapping program make a simple case. They say a 1978 law required court approval for these kinds of wiretaps. In this case, the president didn't go to that court to get approval; therefore, what he does is illegal. What's wrong with that argument?

Yoo: There are two different arguments that the administration is relying on. First, the most robust version of it is that the president is the commander in chief. And as the commander in chief, under the Constitution, he has the responsibility and the duty to respond to an attack on the United States, which we saw on 9/11. We saw it in New York City. And that power has to include the ability to respond with force against al Qaeda and other threats to the United States, including those that will produce a direct attack like the kind we saw on 9/11. Now, that power to use force has ancillary powers, or related powers. One would be the power to detain enemy combatants, which the Supreme Court upheld two years ago. Another related power, and in some ways maybe an even more important power, is to gain intelligence on the members of the enemy so you can use force in the best way possible. And presidents have traditionally, since at least Franklin Roosevelt on, have always used that authority to intercept the communications of members of the enemy, including intercepting--

Gigot: But why, in this case, couldn't he just have gone to the FISA court and asked the court, OK, give--say, "Here's the probable cause for an al Qaeda member overseas. We want to listen in." Why couldn't he have gone to the court?

Yoo: Well, I can't talk about the specifics of the program, what the program exactly requires, because it's still classified. But I can say that the FISA statute isn't really suited to the challenge posed by al Qaeda. The FISA statute was written, as you said, in 1978. It was designed to allow us to surveil Soviet spies working at the embassy in Washington or the U.N. headquarters, who were contacting Americans. And it was written for a time of rotary telephones, when there was no email. And it was written for that kind of period. It wasn't written to anticipate this kind of far-flung network, where members of al Qaeda could be citizens of many different countries and they're using email, phones to call each other.

And so, just to give you some examples where FISA doesn't quite fit, one is what happens when you're in a world where people can change their email addresses every minute? And so that our people, who are out in cyberspace trying to find them, have to keep moving quickly to keep on their trail. Do we want our agents to have to continuously got back to the FISA court every time that happens?

Or what happens when members of al Qaeda, who we know watch our government and watch what we do and watch our political system, what happens if they know about FISA and so they realize that, in order to surveil a U.S. person, which is anyone basically in the United States who's a citizen or a resident alien, they know that you have to get to a FISA court to get a warrant? Suppose they just started including random Americans, you know, in their coded emails. So if Osama bin Laden wanted to send an email to his second in command, Dr. Zawahiri, suppose he just cc'd some random person who appeared to be an American?

Gigot: So it's the speed of these communications in this world. But let's say Congress still objects here. What recourse do they have politically to be able to stop this? Do they have--can they sue? Can there be a legal way to stop this? Or does Congress have to pass legislation?

Yoo: Well, I think the Congress has a lot of checks. I don't think the primary check is going to be by going to the courts. There is, I think, two lawsuits that were just filed against the NSA program. But I think they're going to fail, because you need to show standing, which means that you have to show that the plaintiffs in those cases actually suffered a harm or were actually surveilled by this program. And they don't appear to have anyone who knows or can show that that happened. Similarly, a single member of Congress isn't going to be able to go, I think, to a court and try to stop the program. But Congress can do lots of things. Congress can cut off funding for this program if it wants to. It can reduce the NSA. It can hold up appointments. It can exercise its oversight authority as it's going to do. Congress can use all the traditional methods it uses to control other aspects of, you know, the giant bureaucracy and administrative state.

Gigot: It sounds like what you're saying is it's more than a legal fight. This is really a fight--a political fight and a fight between the branches and between political actors.

Yoo: I think that's right. I think this is a real struggle between the president and Congress and foreign affairs and national security. And that's the way the Constitution was designed. It was designed to give both the president and Congress different powers that overlap sometimes and make it conflict, if they want it to, to try to frustrate each other. But it also allows them to cooperate when they agree. I might add that, you know, Congress hasn't done any of the things we've talked about to try to block the NSA program yet.

Gigot: OK, John Yoo, author of "The Powers of War and Peace." Thanks. Keep your head down in Berkeley.

Our panel weighs in on the wiretapping controversy after this short break. Also coming up, with Judge Samuel Alito's almost certain confirmation. The Supreme Court stands poised to enter a new era. We'll look forward to what a Roberts-Alito court might actually do. That and our "Hits and Misses" of the week when "The Journal Editorial Report" continues.

With more on the potential political fallout from the NSA's electronic surveillance program, I'm joined by Wall Street Journal columnist and editorial page deputy editor Dan Henninger, associate editor Melanie Kirkpatrick and OpinionJournal.com editor James Taranto.

Dan, I have to tell you, I think this is one of the most important political and policy debates to come along in a long time. Because it's not just a clash between the parties, it's also a clash between the branches, Congress and the executive branch. What's at stake here for the president and the presidency?

Henninger: Well, I'll tell you quite frankly, Paul, I think for the president the political risk here is close to zero, because what he's doing is supported overwhelmingly by the American people. I mean, the polls show that it's well over 60%. The idea here is warrantless wiretaps of suspected terrorists.

Now, the presidency is another matter. The struggle between Congress and the president reoccurs every time we have a war or a situation like this. At the risk of sounding like a legal originalist, Article II of the Constitution was written in 1789. The Founding Fathers understood they were creating a strong executive. And the purpose of that was that in situations of necessity or emergency, you wanted someone who could act quickly for the nation. And that power has always resided in the presidency. Congress has always resisted it, and we're having the same fight again today.

Gigot: Yes, James.

Taranto: I think for reason that Dan says, this will probably end up increasing the power of the presidency. Because what we're seeing now, on the other side is, to a large extent, a hangover from Vietnam and Watergate, when the power of the presidency was at an ebb after those events. And now that there's a real threat that people understand, I think there is political support for a strong presidency that wasn't there in 1974.

Gigot: James, you and I interviewed the vice president, Vice President Cheney, this week on executive power. And he made an interesting argument when we asked him why they didn't go to Congress to get Congress to expand that authority. What did he say?

Taranto: Well, he said they were briefing eight or nine top leaders of the Intelligence Committee and the leaders of the House and the Senate, and they all agreed, including the Democrats, that secrecy was essential here, that is we had a public debate about this, it would have bad effects on national security.

Now, the Democrats are saying a different tune now, publicly. But that suggests that their base, the base of their party, is so unhinged that Democratic leaders can't afford to be responsible about national security, except behind closed doors.

Gigot: Yes.

Kirkpatrick: The most important comment that an administration official made this week was from Michael Hayden, who's the deputy director of national intelligence and the former head of the NSA. And he said, "Had this program been in effect prior to 9/11, it's my professional judgment we would have detected some of the 9/11 al Qaeda terrorists." Most Americans grasp that. As a political issue, I agree with Dan, this isn't going very far.

Gigot: Well, wait a minute. We've got all kinds of serious politicians, Barbara Boxer and quite a number of others, saying impeachment, the "I" word, that this is a lot like Nixon, abuse of power, the imperial presidency. That sounds like they think it's a political winner for them. So Democrats think this is a political winner.

Henninger: Yes, and you know what? I just don't think it is. It is of a piece of what we're going to discuss shortly, Sam Alito. You have these blue-state politicians, senators and House members, who seem to think that attacking the president, wall to wall, 24/7, is somehow in the interest of their party. Believe me, there are plenty of senators running from red states or states where, you know, it is not clear who's red or who's blue. And this sort of strident constant assault on the presidency, I think, is going to begin to cost the Democrats.

Gigot: James?

Taranto: Well, and of course, what they're responding to is the demands form their base that they take on President Bush and the Republican Party. I mean, there is a small segment of the population in this country, which is very vocal in the Democratic Party, that really thinks that the enemy is George W. Bush.

Gigot: All right, James, you get the last word. Thanks.

We'll be back after this short break. Still ahead, as Samuel Alito sails toward Supreme Court confirmation, Senate Democrats continue to attack the conservative judge on ideological grounds, a strategy that may not resonate with the American people. Our panel will dissect the politics of the upcoming Alito vote.

Plus, our "Hits and Misses" of the week as "The Journal Editorial Report" continues.

James, John Kerry came in from Switzerland with an attempt to rally the fellow Democrats in the Senate to filibuster Judge Alito, but there don't seem to be many takers. How did the Democrats get so divided over what was supposed to be a united front?

Taranto: Well, I think it has something to do with the fact that they keep losing elections. You remember John Kerry ran for president and lost. And I actually got an email the other day from the John Kerry presidential campaign. He's still sending out campaign emails in 2006. They lost quite a few Senate seats too, in part because of this obstructionism on judges.

And it just strikes me that John Kerry is like one of these Japanese soldiers that they found hiding in a cave in a island somewhere in 1947, who hadn't gotten the word that the war was over and his side lost.

Gigot: Yes, this really is a red state-blue state isn't it, Melanie, and the red state Democrats just don't want to fight this out into a filibuster?

Kirkpatrick: No, I don't think they do. And the filibuster proved to be very bad for them politically in the elections in 2002 and 2004. And so they're not eager to jump on the filibuster bandwagon, especially with a high-profile Supreme Court nominee. Those elections were about appeals court nominees--

Gigot: Those filibusters were. Yes.

Kirkpatrick: Those filibusters, right, who, most Americans had never heard of.

Gigot: It's interesting though, Dan, you know, most of the--every potential Democratic candidate in 2008 is going to vote both against John Roberts and now coming up Samuel Alito. Even Evan Bayh, a relative centrist from Indiana. They feel that their base really wants these "no" votes, don't they?

Henninger: Yeah, and their base--they're right, their base does want them. I mean, there's a lot at stake for the Democrats. I think James put his finger on it. It has to do with winning and losing elections. For, say, 1960 to at least 1994, Democrats controlled Congress, by and large. They passed a lot of legislation--the New Deal, and such. In 1995, the Supreme Court, in this interesting case, the United States v. Lopez, said that the commerce clause restricted some of Congress's powers. Now, you have to understand, the commerce clause has essentially been the Democratic Congress's way of doing pretty much anything they wanted to, on the environment or whatever. And it's--the threat here is that this court may restrict that authority. And the problem for the Democrats is they've got to control Congress to exercise that authority.

Kirkpatrick: Dan's absolutely right, because Democrats have thought of the courts as their own personal legislature. That the judges will do what they, the Democrats, want them to do.

Henninger: Or they would simply affirm what they did.

Kirkpatrick: That's right. They would uphold them.

Henninger: Yeah.

Gigot: Melanie, I want to--let's get to the court substance, for what it might look like ahead now with these two new justices, and throw in a proposition to you to see if you agree with it.

What if, let's say both Justice Alito and Roberts turn out to be conservatives. That makes four conservatives. It's a nine-member court. So that means they still could be in the minority on the court. You would end up with Justice Kennedy emerging as the new swing vote replacing Sandra Day O'Connor. And you really still have a center-left court. Isn't that the way this could go?

Kirkpatrick: Yes, I think that's right. I think that probably is the way it's going to go. You don't know exactly how any individual judge is going to vote on any individual issue. But basically there is the five-four liberal-conservative divide.

At the same time, I would say with Roberts and Alito on the court, you have four solid conservatives. And they're going to be writing opinions that are going to be very well argued, very persuasive. And I think they may be able to shift the debate back toward the center and maybe bring Justice Kennedy along with them.

Gigot: What do you--

Taranto: And there are some very important issues on which Justice O'Connor was the deciding vote in favor of the so-called liberal side. One is campaign finance reform, where she voted to uphold McCain- Feingold, in what was essentially a 5-4 ruling.

Another is affirmative action, where she wrote, in one of the most brazenly political decisions ever, that affirmative action was sometimes constitutional and would be for another 25 years. I think it's quite possible that with Alito that deadline will move up.

Gigot: I would argue another issue is church-state relations, where the liberal courts, for about 50 years, have really bent to the direction of the wall of separation of the establishment clause saying the government can't support a religion. I think they're going to move in the direction of the free exercise clause and a little more open to public displays of religion.

I get the last word.

We have to take one more break. When we come back, our "Hits and Misses" of the week.

Item one, Dan Henninger comes clean on an addiction. Dan?

Henninger: Yes, forget warrantless wiretaps. The real crisis in America is the possibility that the BlackBerry may be shut down. A judge, in a patent dispute, may issue an injunction that puts four million BlackBerries out of business.

Now, these things are sometimes known as CrackBerries because people are so addicted to using them. And I have to admit the thumbs in my hands are basically shot from working these things.

[Laughter]

Now, there may be a silver lining in all this. Women, by and large, hate BlackBerries. And the reason they do is because their dates and husbands are always sitting in restaurants going like this, trying to check out their email.

So I've got a deal. If the BlackBerry is driven into the ditch, perhaps women will stop sticking cell phones in their ears like this all the time, and then we can go back to life as it used to be.

Gigot: OK. Thanks, Dan.

Next, is a warm front moving through Canada? Our neighbors to the north headed to the polls this week.

Melanie, what happened?

Kirkpatrick: George W. Bush won.

[Laughter]

Actually, though, the winner was Stephen Harper, who's the leader of the Conservative Party and the next prime minister of Canada. Stephen Harper is unabashedly pro-American. And he joins a list of pro-American, pro-Bush leaders in a bunch of other countries who have been re-elected recently: John Howard in Australia, Tony Blair, Junichiro Koizumi, Angela Merkel.

Canada's one of our most important bilateral relationships, if not the most important. And it'll be nice to have a friendlier government in Ottawa.

Gigot: All right. Thanks, Melanie. An impressive list of names you reeled off there.

Finally, an L.A. Times columnist with a not so warm message for our troops in Iraq. James?

Taranto: Well, Joel Stein wrote a column for the L.A. Times this past week in which he said, "I don't support the troops. . . . I'm not for the war. . . . Oh, I'm not advocating that we spit on returning veterans like they did after the Vietnam War, but we shouldn't be celebrating people for doing something we don't think was a good idea." And he concluded, "Please, no parades."

Now, I couldn't disagree more. And yet, I give Joel Stein one cheer for honesty. It's better than people who smarmily say they support the troops when they're rooting for the troops to lose.

Gigot: All right, James. A little praise that I wouldn't have expected. Thank you.

That's it for this week's edition of "The Journal Editorial Report." Thanks to Dan Henninger, Melanie Kirkpatrick and James Taranto.

I'm Paul Gigot. Thanks for watching. We hope to see you next week.