A Leap of Faith, Off a Cliff

New York Times Editorial

06/15/06 "New York Times" -- -- On Monday, the Bush administration told a judge in Detroit that the president's warrantless domestic spying is legal and constitutional, but refused to say why. The judge should just take his word for it, the lawyer said, because merely talking about it would endanger America. Today, Senator Arlen Specter wants his Judiciary Committee to take an even more outlandish leap of faith for an administration that has shown it does not deserve it.

Mr. Specter wants the committee to approve a bill he drafted that tinkers dangerously with the rules on wiretapping, even though the president has said the law doesn't apply to him anyway, and even though Mr. Specter and most of the panel are just as much in the dark as that judge in Detroit. The bill could well diminish the power of the Foreign Intelligence Surveillance Act, known as FISA, which was passed in 1978 to prevent just the sort of abuse that Mr. Bush's program represents.

The committee is considering four bills. Only one even remotely makes sense now: it would give legal standing to groups that want to challenge the spying in court. The rest vary from highly premature (Senator Dianne Feinstein's proposed changes to FISA) to the stamp of approval for Mr. Bush's claims of unlimited power that Senator Mike DeWine drafted.

Mr. Specter's bill is not that bad, but it is fatally flawed and should not go to the Senate floor. He is trying to change the system for judicial approval of government wiretaps in a way that suggests Congress is facing a technical problem with a legislative solution, when in fact it is a constitutional showdown.

There is also a practical problem: a bill on the floor of this Senate becomes the property of the Republican leadership, which will rewrite it to the specifications of Vice President Dick Cheney, the man in charge of this particular show of imperial power. Mr. Specter, of all people, should have no doubt of that, having been forced to watch in embarrassment last week as Mr. Cheney seized control of the committee's deliberations on the spying issue.

Mr. Specter says his bill would impose judicial review on domestic spying by giving the special court created by FISA power to rule on the constitutionality of the one program that Mr. Bush has acknowledged. But the review would be optional. Mr. Specter's bill would eliminate the vital principle that FISA's rules are the only legal way to eavesdrop on Americans' telephone calls and e-mail. It would give the president power to conduct surveillance under FISA "or under the constitutional authority of the executive." That merely reinforces Mr. Bush's claim that he is the sole judge of what powers he has, and how he exercises them.

Mr. Specter's lawyers have arguments for many of these criticisms, and say the bill is being improved. But the main problem with the bill, like most of the others, is that it exists at all. This is not a time to offer the administration a chance to steamroll Congress into endorsing its decision to ignore the 1978 intelligence act and shred constitutional principles on warrants and on the separation of powers. This is a time for Congress to finally hold Mr. Bush accountable for his extralegal behavior and stop it.

Copyright 2006 The New York Times Company

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