• With: Dan Henninger, Mary Anastasia O'Grady, James Freeman, Joe Rago, Matt Kaminski

    PAUL GIGOT, FOX HOST: This week on "The Journal Editorial Report," a federal judge slams the NSA surveillance program. And an Obama-appointed panel calls for major changes. How will the White House respond? And will America's safety suffer?

    Plus, Pope Francis, Time magazine's "Man of the Year," making some waves for his economic views. Why some conservatives aren't happy.

    An op-ed in our very own paper exposes a nasty rift in the Democratic Party. It turns out Republicans aren't the only ones divided.

    Welcome to the JOURNAL, EDITORIAL REPORT. I'm Paul Gigot.

    A federal judge ruled this week that the National Security Agency's bulk collection of phone records likely violates the Constitution, calling the program, quote, "almost Orwellian." The ruling came just days before a White House-appointed panel released its own critique of the NSA and its activities and made some potentially dangerous recommendations for reining it in.

    Joining the panel this week, Wall Street Journal columnist and deputy editor, Dan Henninger; and editorial board members, Joe Rago and Matt Kaminski.

    So, Joe, you, for your sins --


    -- read this opinion and the NSA report. Tell us, first, about the opinion. How powerful is it, as a legal document, taking on the constitutionality of this program?

    JOE RAGO, EDITORIAL BOARD MEMBER: Well, it's not very compelling, Paul.

    Since a 1979 Supreme Court decision, called Smith versus Maryland, metadata, phone records, information about information has not been a search under the Fourth Amendment.

    GIGOT: According to the Supreme Court.

    RAGO: According to the Supreme Court ruling by Harry Blackman, who was no conservative, certainly. And if you entrust your data to a third party, like a phone company or a credit card company, you have no reasonable expectation of privacy.

    GIGOT: But why did Leon then say that precedent -- because he's a lower- court judge. Why did he say that Supreme Court precedent doesn't apply right now?

    RAGO: He said technology has changed so much that the case no longer pertains. But Smith versus Maryland wasn't about how or how much metadata the government collects, whether it's the local police or the NSA. It's simply the fact that your metadata is not yours. It belongs to the third party.

    DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: If that's the case, then I think someone should file a lawsuit against Amazon and American Express on exactly the same basis. Every day of the week, we all convey enormous amounts of privacy to these web retailers and nobody seems to complain about that. In fact, they're much more intrusive --


    GIGOT: But I guess the argument would be made, well, that's not the government. They don't have police powers. Amazon and American Express don't have police powers.

    HENNINGER: Well, the issue is it's not just the government doing it.

    People are worried about what will be done with this information. I think your information is obviously, given the story of Target stores, is more at risk in the private sector than it is with the NSA.

    MATT KAMINSKI, EDITORIAL BOARD MEMBER: But the NSA actually has no police powers. The NSA just gathering --

    GIGOT: Excellent point.

    KAMINSKI: -- reams of information for possible clues that they would pass on. Let's say, if someone is calling from Pakistan, a known terrorist, is calling a number in Utah, you know, 10 times in the span of two weeks, they would pass it on to the FBI, which then would look into it. We have to get a warrant --


    GIGOT: You have to get a warrant to be able to do that.

    KAMINSKI: Of course. It's like the police gathering tips.

    GIGOT: What about this report, Matt, by the president's appointed panel, with basically came out and said do away with that bulk effort, for example, and did some other -- it puts really significant restraints, process restraints, bureaucratic restraints, on these programs?

    KAMINSKI: It would really unilaterally disarm the surveillance state --


    GIGOT: You think it's that serious?

    KAMINSKI: I think it goes much further than the White House thought it would go. President Obama called these wise men, after Edward Snowden basically released the NSA's play book, so to speak, and they came back and said you have to curtail the metadata program, you have to change the way that a special court, a secret court, you know, allows the intelligence agencies to look into -- to follow up leads. And it curtails the president's powers to surveil overseas, basically, to spy overseas.

    GIGOT: No other country has anything like that in terms of restraint, Joe, on foreign intelligence gathering, as I understand.

    RAGO: It's very difficult to create rules for this kind of regime. The nature of anti-terror defenses is that you never know what you're going to need in advance. It's always we need this information immediately and we need to find it very fast. So the idea that we're going to create a set of constraints beforehand is really pernicious.

    GIGOT: What about this argument, Dan, that the Libertarians, in particular, make? They make it on left and they make it on the right, that somehow, look, this is Big Brother, this is the intrusive state. It is, as Judge Leon wrote, "almost Orwellian" to think that they have this vast capacity to listen in on everything we do. Is this an irrational fear? Or is it just something we have to come to live with, with some restraints on the government?

    HENNINGER: I guess I would put it this way, Paul. Those of us who live here in New York City, and did in 2001, what happened on 9/11 was rather Orwellian, I would say.


    And, you know, if you are Al Qaeda, which still exists out there, and you are seeing that the United States is issuing a report like this, and it's going to -- what Matt just suggested, I think you've got to be pretty happy. Mike Rogers, out of the House Intelligence Committee, and Dianne Feinstein, out of the Senate Intelligence Committee, both said al Qaeda is getting much more sophisticated in the sort of weapons and techniques that it's developing. They have not gone to sleep. The question is, is the United States going to go to sleep?

    GIGOT: Matt, the question is, where is the president on this? He accepted the report without comment. Said, we'll think about it, go at it. But it seems to me that he's been voting present on this entire debate. He just doesn't want to defend or seems reluctant to defend the very powers he's been using for five years.

    KAMINSKI: Well, he stuck -- his base obviously wants him to, you know, curtail this back. So does the -- on the right. At the same time, he has been successful in preventing any terrorist attack on U.S. soil --