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.…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.