This week Americans face a profound choice -- and it has nothing
to do with the presidential election.
The Senate is about to vote on legislation, favored by President
Bush, to strip American courts of their authority to supervise
massive government surveillance. The Senate intelligence bill
sidelines the U.S. intelligence court, established by a 1978
law, and grants Bush new spying powers. Under the proposal,
the Administration merely needs to "certify" it will
not abuse them.
Of course, Bush already has abused his spying powers. He conceded
in 2005 that the Administration conducted massive surveillance
without the warrants required by law. A judge resigned in protest;
Bush's former attorney general, his deputy attorney general
and the FBI director also threatened to resign; and one federal
court found the warrantless spying illegal.
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Yet the Senate's legislation fails to confront that history.
Instead, Democratic leaders are poised to validate Bush's illegal
surveillance -- giving even more ground than the Republican
Congress ever did. Worse, the current bill would cover up Bush's
abuse by granting retroactive amnesty to telecommunications
companies accused of breaking the law, even if the people involved
acted knowingly or maliciously.
The retroactive amnesty proposal is so extreme, in fact, it
is hard to fathom how Congress, as a law-making body, can advance
this blatantly lawless approach. This amnesty makes presidential
pardons look tough. While pardons save convicted felons from
jail, a controversial tack, they still require a full public
trial. Retroactive amnesty just squashes entire cases. No investigation.
No judicial fact-finding. And the public gets no information
about these alleged crimes at the highest levels of American
government and business. What if the spying was abused to distort
elections or pad corporate profits? The bill would keep the
public in the dark.
The intelligence bill is not just unpalatable; it is indefensible
on the facts. That may be why the Senate is pushing the bill
now, during the distractions of the busiest week in presidential
politics. (The ACLU, MoveOn and liberal bloggers have also been
fighting the bill, causing some delays and fortifying efforts
by Senators Feingold and Dodd to amend it this week.) The Administration
has also savaged the facts to bolster a weak hand. Bush officials
have mischaracterized the bill, impugned the security credentials
of their opponents and threatened to veto a temporary version
so they could blame any ensuing intelligence problems on Democrats.
Bush's bad faith nearly derailed everything, because his veto
threat enraged the bill's chief sponsor, Senator Jay Rockefeller,
a Bush ally on intelligence issues. Last week, in a showdown
on the Senate floor, the normally mild-mannered Rockefeller
even accused the White House of "political terrorism."
Then Bush buckled, signing a temporary measure despite his veto
threats, while reiterating his demand for amnesty in a final
bill. Jacob Sullum, a conservative writer for the libertarian
Reason magazine, described it as "the latest in a series
of Bush administration reversals and self-contradictions"
on intelligence legislation. "If the president and his
men can't even get their public story about warrantless surveillance
straight, how can we trust them to secretly exercise the unilateral
powers they are seeking?" he asked.
We can't. And it's not just Bush, who has little time to exercise
these unfettered powers, anyway. Spying abuse has bipartisan
roots, from Democratic administrations infiltrating the anti-war
movement to Nixon taping everyone from John Kerry to his own
aides.
Surveillance is only more crucial and ubiquitous now, in an
asymmetric war with elusive non-state actors. The core issue
is whether Congress will ensure that our government conducts
surveillance the American way, with oversight by American courts
and public accountability for anyone who would exploit security
concerns for illicit ends.
Proponents of warrantless surveillance like to say that "you
have no problem if you have nothing to hide." Put aside
the unconstitutional premise about individual rights, though,
and that dare works in the other direction. Congress can confront
Bush with a similar imperative: court oversight is no problem
for you or the telecommunication companies, as long as you have
nothing to hide.
