Matt Yglesias

WSJ: Only Secret Illegal Surveillance Will Provide Accountability

I’d thought that one beneficial result of Barack Obama being elected president was that it might cause conservatives to think twice about their post-9/11 embrace of unlimited executive power. But instead The Wall Street Journal is still upset that the new, loophole-ridden FISA is too restrictive:

What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is.

To ease the Journal’s mind, part of the point of the last revision’s retroactive immunity for lawbreakers is that any restrictions currently on the books are purely make-believe. Everyone understands now that there will be no penalties for breakin the rules. Meanwhile, Tim Lee observes that “The whole point of the Fourth Amendment is that ‘unelected judges’ oversee the activities of law enforcement.” Indeed it is. This kind of thing is sort of integral to ideas like due process and the rule of law. If nothing is overseen by “unelected judges” then liberal democracy is out the window.