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Above the law?

The Bush administration's use of illegal surveillance of U.S. citizens and the possibility of congressional involvement require an independent inquiry.

There was a development in Iraq last week to redeem in part the blood and treasure that America has spent there. The massive election turnout, notably including even the wary Sunni minority, was a hugely encouraging example of democracy in a region that has known only tyrants. Perhaps it hastened the day, or so one would hope, when the U.S. military can withdraw.

But that good news was overwhelmed by the disclosure that forced President Bush to admit that he has repeatedly authorized the National Security Agency to conduct domestic surveillance without asking for warrants, before or after a suspicious intercept, from the court that exists for just such a purpose.

Were it not for that, the president might now be signing the legislation to renew the Patriot Act rather than reduced to raging against the senators who are properly blocking it. He has only himself to blame.

The legislation is controversial not because it allows law enforcement and intelligence agencies to cooperate in ways forbidden before 9/11. The problem arises from new powers with a great potential for abuse, such as secret inquiries into the reading habits of American citizens. The president's claim that he can be trusted not to abuse them went out the window with the revelation of the illegal surveillance by the NSA.

Bush, who had been remarkably respectful of differences and almost humble in his address to the nation Sunday night, was combative and even arrogant during his news conference Monday. He repeatedly asserted that the war on terror justifies what he did with the NSA and that he has the power under the Constitution as well as derivately from Congress' authorization for the use of force. In so saying, he raised a question with nightmare ramifications: Is there any law that he feels bound to respect?

Moreover, he suggested that leaders in Congress knew of the warrantless spying and implicitly consented to it. If so, they were as heedless of their oaths to support and defend the Constitution as he was of his. However, the truth of that is in doubt.

Former Sen. Bob Graham, who chaired the Senate Intelligence Committee at the time of Vice President Dick Cheney's briefing in 2002, recalls that it divulged only that the NSA had, almost inescapably, encountered domestic sources while monitoring the communications of suspected terrorists overseas. But, says Graham, "We were not told that there was not going to be a warrant secured and we were not told that this was going to change the standard for wiretapping of a U.S. citizen."

There has never been nor could there ever be any greater danger to the United States than a government that considers itself above the law. This is why Richard Nixon had to resign the presidency 31 years ago. Once again, it is necessary to ask who knew what, and when.

But the issue this time is not simply what the president knew and when he knew it, but also what Congress knew and when its key members knew it. Sen. Arlen Specter, chairman of the Judiciary Committee, has promised an investigation of the warrantless surveillance. But for that probe to be thorough, it would necessarily explore the culpability of the Congress itself, and it is hard to imagine how any committee could go there.

The necessity of an independent commission of inquiry should be considered, soon and seriously.

[Last modified December 20, 2005, 01:50:22]