Putting the president above the law

Even by the dismal standards of what passes for a national debate on intelligence and civil liberties, last week was a really bad week.

The Senate debated a bill that would make needed updates to the Foreign Intelligence Surveillance Act - while needlessly expanding the president's ability to spy on Americans without a warrant and covering up the unlawful spying that President George W. Bush ordered after Sept. 11.

The Democrat who heads the Senate Intelligence Committee, Jay Rockefeller of West Virginia, led the way in killing amendments that would have strengthened requirements for warrants and raised the possibility of at least some accountability for past wrongdoing.

Republicans declaimed about protecting America from terrorists - as if anyone was arguing the opposite - and had little to say about protecting Americans' rights.

We saw a ray of hope when the head of the CIA conceded - finally - that waterboarding was probably illegal. But his boss, the director of national intelligence, insisted it was legal when done to real bad guys. And Vice President Dick Cheney - surprise! - made it clear that Bush would authorize waterboarding whenever he wanted.

The Catch-22 metaphor is seriously overused, but consider this: Attorney General Michael Mukasey told Congress there would be no criminal investigation into waterboarding. He said the Justice Department decided waterboarding was legal and told the CIA that.

So, according to Mukaseyan logic, the Justice Department cannot investigate those who may have committed torture, because the Justice Department said it was O.K. and Justice cannot be expected to investigate itself.

As it was with torture, so it was with wiretaps.

After the 2001 terrorist attacks, the president decided to ignore the Foreign Intelligence Surveillance Act, or FISA, and authorized wiretaps without a warrant on electronic communications between people in the United States and people abroad. Administration lawyers ginned up a legal justification and then asked communications companies for vast amounts of data.

According to Rockefeller, the companies were "sent letters, all of which stated that the relevant activities had been authorized by the president" and that the attorney general - then John Ashcroft - decided the activity was lawful. The legal justification remains secret, but we suspect it was based on the finely developed theory that the president does not have to obey the law, and not on any legitimate interpretation of federal statutes.

When Bush started his spying program, FISA allowed warrantless eavesdropping for up to a year if the president certified that it was directed at a foreign power and there was no real chance that communications involving U.S. citizens or residents would be caught up. As we now know, the surveillance included Americans and there was no "foreign power" involved. The law then, and now, also requires the attorney general to certify "in writing under oath" that the surveillance is legal under FISA, not some fanciful theory of executive power. He is required to inform Congress 30 days in advance, and then periodically report to the House and Senate intelligence panels.

Congress was certainly not informed, and if Ashcroft or later Alberto Gonzales certified anything under oath, it's a mystery to whom and when. The eavesdropping went on for four years and would probably still be going on if The New York Times had not revealed it.

This whole nightmare was started by Bush's decision to spy without warrants - not because they are hard to get, but because he decided he was above the law. Discouraging that would be a service to the nation.

This debate is not about whether the United States is going to spy on Al Qaeda, it is about whether it is going to destroy its principles in doing so. Senators who care about that should vote against immunity.

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