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Eavesdropping goes unchallenged

Nothing of any real substance was accomplished during the Senate Judiciary Committee's hearing last week on a motion to censure President Bush for warrantless eavesdropping on Americans.

One of the witnesses trotted out was convicted Watergate felon John Dean, but in the end the hearing amounted to little more than third-rate political theater. Republicans used the opportunity to grandstand and charge that Bush is being unfairly maligned, while most Democrats kept their distance. But political gamesmanship aside, Congress has yet to deal with the breach of legal and constitutional norms committed by the president when he authorized the National Security Agency in late 2001 to intercept calls between Americans and people overseas.

Congress wrote into the 1978 Foreign Intelligence Surveillance Act (FISA) that the law was to be the "exclusive means" by which Americans can be wiretapped for intelligence gathering purposes. As crafted, the law is a careful balancing of security and privacy, setting up an agile scheme that allows the president to authorize warrantless wiretapping for 15 days following a declaration of war. After that, federal law enforcement is free to initiate an investigation without a warrant, as long as one is sought within 72 hours.

However, Bush and Attorney General Alberto Gonzales claim the law is not flexible enough. They say it is irrelevant, claiming the president has the inherent authority to set his own parameters for warrantless wiretapping during wartime. So far, the Republican-controlled Congress has been unwilling to challenge the president.

Two Republican-sponsored bills introduced in the Senate would do nothing more than retroactively approve what the president has been doing. In a bill sponsored by Sen. Mike DeWine, R-Ohio, subcommittees of the Intelligence Committees would be charged with reviewing the administration's actions. But those committees could not halt illegitimate spying. This measure would create a rubber stamp, not a check against unwarranted surveillance.

In another bill sponsored by Sen. Arlen Specter, R-Pa., the FISA court regularly would review an ongoing wiretap order but would be given little meaningful oversight authority. And Specter's measure would apply to calls that are contained within the United States, not just those involving an overseas party. It would expand the government's ability to spy on Americans for long periods of time.

Congress so far has failed to fully investigate the breadth of the NSA program, and it makes little sense to legislate the contours of something that exists in the shadows.

[Last modified April 5, 2006, 00:37:15]