With Democrats Like These...
Every now and then, we are tempted to double-check that the Democrats actually won control of Congress last year. It was particularly hard to tell this week. Democratic leaders were cowed, once again, by propaganda from the White House and failed, once again, to modernize the law on electronic spying in a way that permits robust intelligence gathering on terrorists without undermining the Constitution.
The task before Congress was to review and improve an update to the 1978 Foreign Intelligence Surveillance Act, known as FISA, that was pushed through the Capitol just before the summer break. That bill endorsed warrantless wiretapping and gutted other aspects of the 1978 law.
House Democrats drafted a measure that, while imperfect, was an improvement to the one passed this summer. But before the House could vote, Republicans tied up the measure in bureaucratic knots and Democratic leaders pulled it. Senate Democrats did even worse, accepting a Potemkin compromise that endorsed far too much of the bad summer law.
We were left wondering who is really in charge, when in a bipartisan press release announcing the agreement, the ranking Republican on the Senate Intelligence Committee, Kit Bond, described the bill as “a delicate arrangement of compromises” that could not be changed in any way. The committee’s chairman, Jay Rockefeller, didn’t object.
As the debate proceeds, Americans will be told that the delicate compromises were about how the government may spy on phone calls and electronic messages in the age of instant communications. Republicans have already started blowing hot air about any naysayers trying to stop spies from tracking terrorists.
No one is doing that. The question really is whether Congress should toss out chunks of the Constitution because Mr. Bush finds them inconvenient and some Democrats are afraid to look soft on terrorism.
FISA requires a warrant to spy on communications within the United States or between people in this country and people abroad. After 9/11, Mr. Bush ordered the National Security Agency to spy, without a warrant, on communications between the United States and other countries. The N.S.A. obtained data from American telecommunications companies by telling them it was legal.
After The Times disclosed the program in late 2005, Mr. Bush looked for a way to legalize it retroactively. He found it this summer. FISA also requires a warrant to intercept strictly foreign communications that happen to move through data networks in the United States.
That Internet age flaw has a relatively simple fix. But the White House seized the opportunity to ram through the far broader bill, which could authorize warrantless surveillance of Americans’ homes, offices and phone records; permit surveillance of Americans abroad without probable cause; and sharply limit the power of the court that controls electronic spying.
Democrats justified their votes for this bad bill by noting that the law expires in February and by promising to fix it this fall. The House bill did, in fact, restore most judicial safeguards. But the deal cooked up by Mr. Rockefeller and the White House doesn’t. It would not expire for six years, which is too long. And it would dismiss pending lawsuits against companies that turned data over to the government without a warrant.
This provision is not primarily about protecting patriotic businessmen, as Mr. Bush claims. It’s about ensuring that Mr. Bush and his aides never have to go to court to explain how many laws they’ve broken. It is a collusion between lawmakers and the White House that means that no one is ever held accountable. Democratic lawmakers said they reviewed the telecommunications companies’ cooperation (by reading documents selected by the White House) and concluded that lawsuits were unwarranted. Unlike them, we still have faith in the judicial system, which is where that sort of conclusion is supposed to be reached, not in a Senate back room polluted by the politics of fear.
There were bright spots in the week. Senator Ron Wyden of Oregon managed to attach an amendment requiring a warrant to eavesdrop on American citizens abroad. That merely requires the government to show why it believes the American is in league with terrorists, but Mr. Bush threatened to veto the bill over that issue.
Senator Christopher Dodd, the Connecticut Democrat, said he would put a personal hold on the compromise cooked up by Senator Rockefeller and the White House.
Otherwise, it was a very frustrating week in Washington. It was bad enough having a one-party government when Republicans controlled the White House and both houses of Congress. But the Democrats took over, and still the one-party system continues.