A Crack in the Stone Wall

NYT Editorial

It was one of the more outrageous moments in the story of the Bush administration’s illegal domestic wiretapping. Almost a year ago, Congressional Democrats called for a review of the Justice Department’s role in the program. But the department investigators assigned to do the job were unable to proceed because the White House, at President Bush’s personal direction, refused to give them the necessary security clearance.

Now the president, for reasons we can’t help thinking might have something to do with this month’s elections, has changed his mind. The White House will give Justice Department inspectors the required clearance, and a review will go forward.

That’s all to the good, as long as the investigation is not intended to pre-empt any efforts by the new Democratic majority to conduct its own Congressional review of the wiretap program. The Justice Department inquiry will hardly do the full job.

The department’s inspector general, Glenn Fine, has already said that the question of whether the program was legal is beyond his jurisdiction. Instead, he will investigate whether department employees followed the rules governing the program — rules that were established in a secret executive order signed by the president in October 2001.

Whether or not Justice Department employees followed the rules they were given may have bearing on their individual performance evaluations, but it will tell us very little else. Since the rules Mr. Bush established under his secret order will presumably stay secret, the investigation will not even help us to understand just how far from established legal standards he strayed when he authorized the government to eavesdrop on Americans’ international calls and e-mail without a court-issued warrant.

The Justice Department inquiry also will do nothing to fix the biggest problem with Mr. Bush’s eavesdropping program, which is that — once again — he ignored existing law and instead tried to create a system outside the law, resting on his dangerously expansive claims of executive power.

If Mr. Bush had wanted to conduct the wiretapping within the law, he could have quite easily done so, using the Foreign Intelligence Surveillance Act. That law, written after the Watergate scandal and the eavesdropping abuses of the Vietnam era, created a special court to approve applications for domestic surveillance. The court operates in secret, and has rarely denied the authorities’ requests. Even in the post-9/11 era, it should have met the administration’s needs. And if there was a problem, Congress had shown itself ready and willing to amend the law.

Mr. Fine, who has proved himself willing to criticize administration operations before, could still provide an important — if limited — service. He says, for instance, that he will examine how information gleaned from the wiretaps was used to pursue criminal cases. That inquiry should be useful for those who have been wondering whether the enormous amount of information collected significantly helped antiterrorism efforts, or simply complicated them with a flood of unmanageable data.

The investigation might also help Congress understand whether FISA needs updating — something the administration has been loath to discuss as long as it has been able to end-run the court. Senator Dianne Feinstein, who has introduced a bill aimed at making it easy for the government to get quick court approval of wiretaps on those suspected of terrorism or spying, has already said that nothing she has heard in secret briefings suggests that anything the administration needed could not have been conducted under FISA.

The question of the wiretap program’s constitutionality is now making its way through the courts and should ultimately be decided by the Supreme Court. Congress should not be satisfied with Mr. Fine’s very limited investigation. It should mount its own independent inquiry into how the war on terror, and American civil liberties, are being affected by an eavesdropping program about which we have been told so little.