International Herald Tribune Editorial - Stampeding Congress, again

International Herald Tribune Editorial - Stampeding Congress, again
Copyright by THe International Herald Tribune
Published: August 3, 2007


Since the 9/11 attacks, the Bush administration has repeatedly demonstrated that it does not feel bound by the law or the Constitution when it comes to the war on terror. It cannot even be trusted to properly use the enhanced powers it was legally granted after the attacks.

Yet, once again, President George W. Bush has been trying to stampede Congress into a completely unnecessary expansion of his power to spy on Americans. And, hard as it is to believe, congressional Republicans seem bent on collaborating, while Democrats (who can still be cowed by the White House's with-us-or-against-us baiting) aren't doing enough to stop it.

The fight is over the 1978 Foreign Intelligence Surveillance Act, which requires the government to obtain a warrant before eavesdropping on electronic communications that involve someone in the United States. The test is whether there is probable cause to believe that the person being communicated with is an agent of a foreign power or a terrorist.

Bush decided after 9/11 that he was no longer going to obey that law. He authorized the National Security Agency to intercept international telephone calls and e-mail messages of Americans and other residents of the United States without a court order. He told the public nothing and Congress next to nothing about what he was doing, until The New York Times disclosed the spying in December 2005.

Ever since, the White House has tried to pressure Congress into legalizing Bush's rogue operation. Most recently, it seized on a secret court ruling that spotlighted a technical way in which the 1978 law has not kept pace with the Internet era.

The government may freely monitor communications when both parties are outside the United States, but must get a warrant aimed at a specific person for communications that originate or end in the United States. The Los Angeles Times reported Thursday that the court that issues such warrants recently ruled that the law also requires that the government seek such an individualized warrant for purely foreign communications that, nevertheless, move through American data networks.

Instead of asking Congress to address this anachronism, as it should, the White House sought to use it to destroy the 1978 spying law. It proposed giving the attorney general carte blanche to order eavesdropping on any international telephone calls or e-mail messages if he decided on his own that there was a "reasonable belief" that the target of the surveillance was outside the United States. The attorney general's decision would not be subject to court approval or any supervision.

Senator Jay Rockefeller, the chairman of the Senate Intelligence Committee, has offered a sensible alternative law, as did his fellow Democrat, Senator Russ Feingold. In either case, the attorney general would be able to get a broad warrant to intercept foreign communications routed through American networks for a limited period. Then, he would have to justify the spying in court. This fix would have an expiration date so Congress could then dispassionately consider what permanent changes might be needed to the intelligence surveillance act.

This is not, and has never been, a debate over whether the United States should conduct effective surveillance of terrorists and their supporters. It is over whether America is a nation ruled by law, or the whims of men in power. Bush faced that choice and made the wrong one. Congress must not follow him off the cliff.