Bipartisanship on Hold

NYT Editorial

President Bush was back on TV yesterday, without the scowl he’d been sporting the day after the election but with the surviving members of his Cabinet. He talked about how much he was looking forward to lunching with Nancy Pelosi and Harry Reid and working on “the great issues facing America.” Mr. Bush said his team would “respect the results” of the election.

Just maybe not right away.

Without missing a beat, Mr. Bush made it clear that, for now, his idea of how to “put the elections behind us” is to use the Republicans’ last two months in control of Congress to try to push through one of the worst ideas his administration and its Republican allies on Capitol Hill have come up with: a bill that would legalize his illegal wiretapping program and gut the law that limits a president’s ability to abuse his power in this way.

Mr. Bush listed his priorities for the forthcoming lame duck session of Congress. It was an odd list that included only two really urgent items — passing the bills that keep federal money flowing and confirming the nomination of Robert Gates as the next secretary of defense. The rest was a grab bag that included one worthy but hardly urgent idea (getting Vietnam into the World Trade Organization) and a series of ideas ranging from bad to truly awful that Mr. Bush has been unable to get through Congress and hopes to ram through in the Republicans’ last weeks.

For example, he wants the Senate to ratify his recess appointment of John Bolton as ambassador to the United Nations. That vote, which is likely to be strongly debated, can easily wait for the new Congress, and should. Mr. Bush also pressed for quick passage of “the bipartisan energy legislation,” which had Congressional officials scratching their heads in puzzlement about which bill he might mean. And he wants immediate approval of his administration’s deal to sell civilian nuclear technology to India despite that nation’s refusal to sign or abide by the Nuclear Nonproliferation Treaty.

That was a bad idea from the start. But the wiretapping bill is simply outrageous, and it has no business being discussed in this lame duck session.

The bill Mr. Bush wants was drafted by Vice President Dick Cheney’s lawyers and by Senator Arlen Specter, the outgoing Republican chairman of the Judiciary Committee. Mr. Specter presented it as a compromise that would regulate the president’s ability to spy on Americans’ phone calls and e-mail without a court order. It really was a cave-in to Mr. Bush’s effort to expand his power beyond limits that have existed for nearly 30 years.

Mr. Bush has acknowledged that he authorized the National Security Agency to conduct certain kinds of domestic wiretapping without obtaining the warrant required by the 1978 Foreign Intelligence Surveillance Act. He has claimed that the law hindered the hunt for terrorists, but has not offered a scrap of evidence for that claim. He has also never described the program’s overall scope, and almost none of the lawmakers who will vote on this bill if Mr. Bush has his way have any idea what it entails.

Senator Dianne Feinstein, the California Democrat who is one of the few members who does know, has said there is nothing in the program that could not be done legally. She has proposed a more modest bill that would give the government more flexibility to eavesdrop first and get permission later. But Mr. Bush is not interested. He wants the bill that would gut the law, absolve him of illegal behavior and turn over the task of determining the constitutionality of his program to a court that is not equipped to make that judgment.

Since the White House has continued the wiretapping without legislative approval, there is no conceivable reason why Mr. Bush should see this as an emergency. His real motive could be to create a bargaining chip that would allow him to get a narrower bill giving the telephone companies immunity for helping the administration conduct the unlawful eavesdropping. That’s an absurdly bad idea.

There are plenty of responsible lawmakers in both parties who are sympathetic to the idea that the executive branch needed more flexibility to pursue terrorists after 9/11. It has been obvious all along that if the president feels current law is too restrictive, he should explain its shortcomings to members of Congress and ask them to amend it. The Republican majority was never going to insist on that, but the new Democratic leadership might.

The White House refuses to explain itself because this has never been about catching terrorists. It is about overturning the crucial limits placed on executive authority after Watergate and Vietnam. Mr. Cheney and a few other hard-liners have been trying to turn back the clock and have succeeded in some truly scary ways, including the military commissions act they pushed through Congress before the elections. It is vital that they not be allowed to do any more harm.