N.Y. Times (June 18, 2008)

June 18, 2008

Editorial
Mr. Bush v. the Bill of Rights

In the waning months of his tenure, President Bush and his allies are once again trying to scare Congress into expanding the president’s powers to spy on Americans without a court order.

This week, the White House and Democratic and Republican leaders on Capitol Hill hope to announce a “compromise” on a domestic spying bill. If they do, it will be presented as an indispensable tool for protecting the nation’s security that still safeguards our civil liberties. The White House will paint opponents as weak-kneed liberals who do not understand and cannot stand up to the threat of terrorism.

The bill is not a compromise. The final details are being worked out, but all indications are that many of its provisions are both unnecessary and a threat to the Bill of Rights. The White House and the Congressional Republicans who support the bill have two real aims. They want to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.

The Foreign Intelligence Surveillance Act, or FISA, requires the government to get a warrant to intercept communications between anyone in this country and anyone outside it. The 1978 law created a special court that has approved all but a handful of the government’s many thousands of warrant requests.

Still, after Sept. 11, 2001, Mr. Bush bypassed the FISA court and authorized the interception of international calls and e-mail messages without a warrant. Then, when The Times disclosed the operation in late 2005, Mr. Bush claimed that FISA did not allow the United States to act quickly enough to stop terrorists. That was nonsense. FISA always gave the government the power to start listening and then get a warrant — a grace period that has been extended since Sept. 11.

More fundamental, Mr. Bush’s powers do not supersede laws passed by Congress or the Constitution’s protections against unreasonable searches and seizures.

The ensuing debate did turn up an Internet-age problem with FISA: It requires a warrant to eavesdrop on foreign communications that go through American computers. There was an easy fix, but when Congress made it last year, the White House muscled in amendments that seriously diluted the courts’ ability to restrain the government from spying on its own citizens.

That law expires on Aug. 3, and Mr. Bush is demanding even more power to spy. He also wants immunity for the telecommunications companies that provided the government with Americans’ private data without a warrant after Sept. 11.

Lawsuits against those companies are the best hope of finding out the extent of Mr. Bush’s lawless spying. But Democratic leaders in Congress are reported to have agreed to a phony compromise drafted by Senator Christopher Bond, the Republican vice chairman of the Intelligence Committee.

Under the so-called compromise, the question of immunity would be decided by a federal district court — a concession by Mr. Bond, who originally wanted the FISA court, which meets in secret and is unsuited to the task, to decide. What is unacceptable, though, is that the district court would be instructed to decide based solely on whether the Bush administration certifies that the companies were told the spying was legal. If the aim is to allow a court hearing on the president’s spying, the lawsuits should be allowed to proceed — and the courts should be able to resolve them the way they resolve every other case. Republicans, who complain about judges making laws from the bench, should not be making judicial decisions from Capitol Hill.

This week, House and Senate leaders were trying to allay the concerns of some lawmakers that approving the immunity would be tantamount to retroactively declaring the spying operation to have been legal. Those lawmakers are right. Granting the corporations immunity would send that exact message.

The new bill has other problems. It gives the government too much leeway to acquire communications in the United States without individual warrants or even a showing of probable cause. It greatly reduces judicial review, and it would remain in force for six years, which is too long.

If Congress cannot pass a clean bill that fixes the one real problem with FISA, it should simply extend the temporary authorization. At a minimum, the House speaker, Nancy Pelosi, and the Senate majority leader, Harry Reid, should oppose FISA expansion and pledge to revisit it next year. If any significant changes are going to be made, they should be made under the next president.

There are clear differences between the candidates. Senator John McCain, who is sounding more like Mr. Bush every day, believes the president has the power to eavesdrop on Americans without a warrant.

Senator Barack Obama opposes immunity and voted against the temporary expansion of FISA. We hope he will show strong leadership this time. He might even take time off from the campaign to vote against the disturbing deal brewing in the back rooms of Congress.