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The New York Times
Opinion
Compromising the
Constitution
EDITORIAL,
nytimes.com from the Web, July 8, 2008
Congress has been far too compliant
as President Bush undermined the Bill of Rights and the balance of powers.
It now has a chance to undo some of that damage — if it has the courage and good
sense to stand up to the White House and for the Constitution.
The Senate should reject a bill this week that would needlessly expand the
government’s ability to spy on Americans and ensure that the country never
learns the full extent of President Bush’s unlawful wiretapping.
The bill dangerously weakens the 1978 Foreign Intelligence Surveillance Act, or
FISA. Adopted after the abuses of the Watergate and Vietnam eras, the law
requires the government to get a warrant to intercept communications between
anyone in this country and anyone outside it — and show that it is investigating
a foreign power, or the agent of a foreign power, that plans to harm America.
The FISA law created a court to issue those warrants quickly, and over 30 years,
the court has approved nearly 20,000 while rejecting perhaps a half-dozen.
In any case, the government can wiretap first and get permission later in
moments of crisis.
Lawmakers are already justifying their votes for making major changes to that
proven regime by saying that the bill is a reasonable compromise that updates
FISA technologically and will make it somewhat harder to spy on Americans
abroad. But none of that mitigates the bill’s much larger damage. It
would make it much easier to spy on Americans at home, reduce the courts’ powers
and grant immunity to the companies that turned over Americans’ private
communications without a warrant.
It would allow the government to bypass the FISA court and collect large amounts
of Americans’ communications without a warrant simply by declaring that it is
doing so for reasons of national security. It cuts the vital “foreign
power” provision from FISA, never mentions counterterrorism and defines national
security so broadly that experts think the term could mean almost anything a
president wants it to mean.
Supporters will argue that the new bill still requires a warrant for
eavesdropping that “targets” an American. That’s a smokescreen.
There is no requirement that the government name any target. The purpose
of warrantless eavesdropping could be as vague as listening to all calls to a
particular area code in any other country.
The real reason this bill exists is because Mr. Bush decided after 9/11 that he
was above the law. When The Times disclosed his warrantless eavesdropping,
Mr. Bush demanded that Congress legalize it after the fact. The White
House scared Congress into doing that last year, with a one-year bill that
shredded FISA’s protections. Democratic lawmakers promised to fix it this
year.
Democratic Senators Patrick Leahy, Russ Feingold, Christopher Dodd and Jeff
Bingaman plan to offer amendments to do that, but there is little chance they
will pass. The Senate should reject this bill and start over with modest
legislation that makes the small needed changes and preserves Americans’
fundamental protections.
Senator John McCain, the presumed Republican nominee for president, has
supported the weakening of FISA. Senator Barack Obama vowed in January
(when he was still fighting for the Democratic nomination) that he would
filibuster against immunity. Now he says he will vote for an “imperfect”
bill and fix it if he wins. Sound familiar?
Proponents of the FISA deal say companies should not be “punished” for
cooperating with the government. That’s Washington-speak for a cover-up.
The purpose of withholding immunity is not to punish but to preserve the only
chance of unearthing the details of Mr. Bush’s outlaw eavesdropping. Only
a few senators, by the way, know just what those companies did.
Restoring some of the protections taken away by an earlier law while creating
new loopholes in the Constitution is not a compromise. It is a failure of
leadership.
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