Spies, Lies and FISA

NYT Editorial

As Democratic lawmakers try to repair a deeply flawed bill on electronic eavesdropping, the White House is pumping out the same fog of fear and disinformation it used to push the bill through Congress this summer. President Bush has been telling Americans that any change would deny the government critical information, make it easier for terrorists to infiltrate, expose state secrets, and make it harder “to save American lives.”

There is no truth to any of those claims. No matter how often Mr. Bush says otherwise, there is also no disagreement from the Democrats about the need to provide adequate tools to fight terrorists. The debate is over whether this should be done constitutionally, or at the whim of the president.

The 1978 Foreign Intelligence Surveillance Act, or FISA, requires a warrant to intercept international communications involving anyone in the United States. A secret court has granted these warrants quickly nearly every time it has been asked. After 9/11, the Patriot Act made it even easier to conduct surveillance, especially in hot pursuit of terrorists.

But that was not good enough for the Bush team, which was determined to use the nation’s tragedy to grab ever more power for its vision of an imperial presidency. Mr. Bush ignored the FISA law and ordered the National Security Agency to intercept phone calls and e-mail between people abroad and people in the United States without a warrant, as long as “the target” was not in this country.

The president did not announce his decision. He allowed a few lawmakers to be briefed but withheld key documents. The special intelligence court was in the dark until The Times disclosed the spying in December 2005.

Mr. Bush still refused to stop. He claimed that FISA was too limiting for the Internet-speed war against terror. But he never explained those limits and rebuffed lawmakers’ offers to legally accommodate his concerns.

This year, the administration found an actual problem with FISA: It requires a warrant to eavesdrop on communications between foreigners that go through computers in the United States. It was a problem that did not exist in 1978, and it had an easy fix. But Mr. Bush’s lawyers tacked dangerous additions onto a bill being rushed through Congress before the recess. When the smoke cleared, Congress had fixed the real loophole, but also endorsed the idea of spying without court approval. It gave legal cover to more than five years of illegal spying.

Fortunately, the law is to expire in February, and some Democratic legislators are trying to fix it. House members have drafted a bill, which is a big improvement but still needs work. The Senate is working on its bill, and we hope it will show the courage this time to restore the rule of law to American surveillance programs.

There are some red lines, starting with the absolute need for court supervision of any surveillance that can involve American citizens or others in the United States. The bill passed in August allowed the administration to inform the FISA court about its methods and then issue blanket demands for data to communications companies without any further court approval or review.

The House bill would permit the government to conduct surveillance for 45 days before submitting it to court review and approval. (Mr. Bush is wrong when he says the bill would slow down intelligence gathering.) After that, ideally, the law would require a real warrant. If Congress will not do that, at a minimum it must require spying programs to undergo periodic audits by the court and Congress. The administration wants no reviews.

Mr. Bush and his team say they have safeguards to protect civil liberties, meaning surveillance will be reviewed by the attorney general, the director of national intelligence and the inspectors general of the Justice Department and the Central Intelligence Agency. There are two enormous flaws in that. The Constitution is based on the rule of law, not individuals; giving such power to any president would be un-American. And this one long ago showed he cannot be trusted.

Last week, The Times reported that the C.I.A. director, Gen. Michael V. Hayden, is investigating the office of his agency’s inspector general after it inquired into policies on detention and interrogation. This improper, perhaps illegal investigation sends a clear message of intimidation. We also know that the F.B.I. has abused expanded powers it was granted after 9/11 and that the former attorney general, Alberto Gonzales, systematically covered up the president’s actions with deliberately misleading testimony.

Mr. Bush says the law should give immunity to communications companies that gave data to the government over the last five years without a court order. He says they should not be punished for helping to protect America, but what Mr. Bush really wants is to avoid lawsuits that could uncover the extent of the illegal spying he authorized after 9/11.

It may be possible to shield these companies from liability, since the government lied to them about the legality of its requests. But the law should allow suits aimed at forcing disclosure of Mr. Bush’s actions. It should also require a full accounting to Congress of all surveillance conducted since 9/11. And it should have an expiration date, which the White House does not want.

Ever since 9/11, we have watched Republican lawmakers help Mr. Bush shred the Constitution in the name of fighting terrorism. We have seen Democrats acquiesce or retreat in fear. It is time for that to stop.