A Stitch in Haste

When the warrantless wiretap scandal was first developing, the White House and its apologists were quick to dismiss criticism from Democratic leaders in Congress, especially those in the "Gang of Eight" who were briefed on the program prior to its public disclosure by the New York Times. Hypocritical political opportunism, they called it.

Okay, fine — but then what about this?

President Bush said the U.S.-led global war on terror has "weakened and fractured" al-Qaida and allied groups, outlining as proof new details about the multinational cooperation that foiled purported terrorist plans to fly a commercial airplane into the tallest skyscraper on the West Coast.
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Bush has referred to the 2002 plot before. ... The White House initially would not give details of the plots but later released a fact sheet with a brief, and vague, description of each. The president filled in details on Thursday.

So President Bush waited almost four years — when it is becoming clear that no one except the most extreme Bush supporters fully accepts the Administration's bizarre legal reasoning or the notion that warrantless wiretapping of American citizens in America is no big deal — to "fill in the details" about a subsequent plot.

And remember of course that the White House is not saying that the warrantless wiretap program was responsible for preventing this "West Coast 9/11." In fact, what details we have would suggest otherwise. (The alternative, given that "multinational cooperation" was involved, could be that not only is the United States government engaging in warrantless wiretapping of Americans in America, but is also sharing that information with foreign governments. Lovely.)

In any case, the timing of this "see, we told you so" straw man incident is surely as bad a case of "hypocritical political opportunism" as anything that has come from any Democrat.

No reasonable person doubts that al Qaeda remained active after 9/11 and remains so to this day. No reasonable person wants another 9/11 or to make it easier for al Qaeda to create one. But lots of reasonable people, at this point practically all reasonable people, think the warrantless wiretap program is problematic and legally suspect. So let's fix it rather than keep trying to rationalize it.

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Meanwhile:

--The Administration has bowed to Congressional demands and will brief the entire membership of the House Intelligence Committee, rather than just the so-called "Gang of Eight," on the details of the warrantless wiretap program. The reason? Because too many Republicans were demanding it. Are they "hypocritical political opportunists" too? Even ultra-conservative Republican Senator Sam Brownback?

--Senator Arlen Specter has indicated that he is crafting legislation to place the warrantless wiretap program under the direct supervision of the FISA Court. Since they're the ones who would issue the warrants if there were to be warrants, then it seems reasonable to let them monitor the situation in which warrants are not being sought.

--Speaking of the FISA Court, it now appears that the "poisonous tree" problem that many of us foresaw may be coming to pass. At least twice in the past four years FISA Court judges have been notified that warrants they issued may have been based on information obtained from the warrantless wiretap program. If the latter program is deemed illegal, then the warrants that were later issued are invalid and any criminal prosecutions resulting from them may be tainted.

--I also want to fisk one small point is an atrocious Wall Street Journal editorial this morning calling for the wholesale repeal of FISA (the Journal has been relentless in its total and blind support of the warrantless wiretap program):

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. The preferred vehicle here is an expansion of the 1978 Foreign Intelligence Surveillance Act, or FISA, the Carter-era law that imposed judicial consent for domestic wiretaps during the Cold War.

There's just one small problem with the Journal's argument: FISA has been amended five times since 9/11. It is not a "Carter-era" law, but a Bush-era law. Go figure. And FISA can be amended again if need be, particularly to relax (yet again) the 72-hour retroactive warrant provision that Attorney General Alberto Gonzales says is "too restrictive." So let's make it less restrictive — a post facto warrant is better than no warrant at all, and unequivocally better than the demented idea of scrapping FISA altogether. The Journal is, quite frankly, off its meds. More thoughts on the editorial from Rolling Doughnut.