Because the Said So
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 Bush ordered after 9/11.
The Democrat who heads the Senate Intelligence Committee, John 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 Central Intelligence Agency 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 President 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 (remember the torture memo?) and told the C.I.A. 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 Mr. 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 Mr. 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, or the agent of a foreign power, and there was no real chance that communications involving United States 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 Mr. 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 Times had not revealed it.
So what were the telecommunications companies told? Since the administration is not going to investigate this either, civil actions are the only alternative.
The telecoms, which are facing about 40 pending lawsuits, believe they are protected by a separate law that says companies that give communications data to the government cannot be sued for doing so if they were obeying a warrant — or a certification from the attorney general that a warrant was not needed — and all federal statutes were being obeyed.
To defend themselves, the companies must be able to show they cooperated and produce that certification. But the White House does not want the public to see the documents, since it seems clear that the legal requirements were not met. It is invoking the state secrets privilege — saying that as a matter of national security, it will not confirm that any company cooperated with the wiretapping or permit the documents to be disclosed in court.
So Mr. Rockefeller and other senators want to give the companies immunity even if the administration never admits they were involved. This is short-circuiting the legal system. If it is approved, we will then have to hope that the next president will be willing to reveal the truth.
Mr. Rockefeller argues that companies might balk at future warrantless spying programs. Imagine that!
This whole nightmare was started by Mr. 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 democratic principles in doing so. Senators who care about that should vote against immunity.
Immunity means the U.S. government having full reign to target people for their political views, creating a climate subverting the 1st Amendment via subverting the 4th Amendment of the U.S. Constitution.