The big cover-up

The NY Times editorial board.

For more than two years now, Congress, the news media, current and former national security officials, think tanks and academic institutions have been engaged in a profound debate over how to modernize the law governing electronic spying to keep pace with technology. We keep hoping President Bush will join in.

Instead, the president offers propaganda intended to scare Americans, expand his powers, and erode civil liberties — and to ensure that no one is held to account for the illegal wiretapping he ordered after 9/11.

Consider last Thursday’s performance, as the House debated a sound bill that closes some technology gaps in the 1978 Foreign Intelligence Surveillance Act and gives government agencies new flexibility to eavesdrop, but preserves constitutional protections against unreasonable searches. Mr. Bush distorted the contents of the bill and threatened to veto it.

He accused House leaders of “putting in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists.” Actually, the bill merely ensures that special judges continue to supervise surveillance of American citizens. The “cumbersome process” is really a court that acts swiftly and has refused only a half-dozen of more than 21,000 wiretap requests in its nearly 30 years of existence.

What Mr. Bush wants is to be able to listen to your international telephone calls and read your international e-mail whenever he wants, without a court being able to prevent it or judge the legality of his actions.

Mr. Bush said the House bill would “cause us to lose vital intelligence on terrorist threats.” But he has never offered credible evidence of any operation that was hobbled because officials had to request a warrant. The law already allows the government to eavesdrop first and then seek a warrant. As for that technology gap, Congress fixed it last year. The authority has expired, but wiretapping operations started under it can continue.

Finally, Mr. Bush said it was vital to national security to give amnesty to any company that turned over data on Americans without a court order. The purpose of this amnesty is not to protect national secrets — that could be done during a trial — but to make sure that the full damage to Americans’ civil liberties is never revealed. Mr. Bush also objects to a provision that would create a committee to examine his warrantless spying program.

Mr. Bush wanted the House to approve the Senate’s version of the bill, which includes Mr. Bush’s amnesty and does not do nearly as good a job of preserving Americans’ rights. We were glad the House ignored his bluster. If the Senate cannot summon the courage and good sense to follow suit, there is no rush to pass a law.

The president will continue to claim the country is in grave danger over this issue, but it is not. The real danger is for Mr. Bush. A good law — like the House bill — would allow Americans to finally see the breathtaking extent of his lawless behavior.