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Hiding the Ball | The Nation

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Hiding the Ball

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If you want to know what difference a Democratic majority in Congress makes, consider George W. Bush's recent about-face on warrantless wiretapping. For more than five years, unchallenged by the GOP-dominated Congress, his Administration has been insisting, initially in secret and subsequently in public, that the President has inherent, uncheckable authority as Commander in Chief to spy on Americans without judicial approval.

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David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

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In ruling that police may not search cellphones without a warrant, the Court brought the Fourth Amendment into the twenty-first century.

That was when the Bureau of Investigation—the forerunner of today’s FBI—first opened a file on the magazine.

Bush authorized surveillance that directly violated the Foreign Intelligence Surveillance Act. The President claimed that complying with FISA was too cumbersome for the "war on terror," and instead of asking Congress to amend the law, he simply ordered that it be violated in secret.

But that was then. On January 17, the day before Attorney General Alberto Gonzales was to testify for the first time before a Senate Judiciary Committee headed by the Democrats (and two weeks before the Administration was to defend the program in a federal court of appeals), the Administration announced that it could comply with FISA after all, and that future surveillance will be approved by a federal judge under FISA.

This is tremendous news for those concerned about the rule of law. President Bush's claim amounted to an argument that when it comes to matters relating to the war, he literally is the law--neither Congress nor the courts could have any say over his actions, even when he was spying on Americans. He has now admitted that at least this aspect of the war can be conducted in accordance with, rather than in violation of, the law. You can tell this is good news by how angry it made a National Review blogger, who asked, "What is the White House thinking?... For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turn around and surrender presidential authority this way is disgraceful."

Still, serious questions remain about the new program. According to the Administration, "developments" in the FISA court's interpretation of FISA have now made compliance with the law possible. But we have no idea what those legal developments are because they were adopted by a secret court entirely behind closed doors, and with input only from government lawyers. If foreign intelligence gathering is to remain subject to democratic control, Congress must insist that any new rules the courts develop be made public--just as FISA itself is public. It is one thing to keep details of specific warrants secret; but if the entire fabric of FISA jurisprudence is hidden, how are we to know whether the law is being honored only in the breach?

Accountability has never been the Bush Administration's strong suit. That was underscored again recently when the Defense Department issued rules for the conduct of military tribunals for "enemy combatants." The biggest obstacle the Administration faces in such trials is that so much of its evidence has been obtained through coercion, and criminal convictions based on coerced testimony violate the most basic dictates of fairness. Under the Military Commissions Act, however, one of the last gasps of the 2006 Republican Congress, defendants can be tried, convicted and executed on the basis of coerced testimony, so long as the coercion falls short of outright torture.

The Pentagon's new rules go still further, providing that military prosecutors need not disclose to the defense how evidence was obtained if it would reveal classified methods of intelligence gathering. The Administration has long maintained that its interrogation tactics are classified. Under these rules, then, there may never be any public accounting of how information was wrested from, for example, Khalid Shaikh Mohammed, said to be the mastermind of 9/11; he was "disappeared" into a CIA secret prison, held incommunicado for years and reportedly interrogated using extremely harsh abuse, including waterboarding, in which the suspect is strapped to a board and made to fear he is drowning. No trial can be called fair where the critical evidence may have resulted from such treatment. But the Administration seeks to keep that a secret.

If the midterm elections are to usher in the accountability that has been sorely lacking in Washington for six years, Congress must reject such efforts to hide the ball. The Administration is secretly wiretapping Americans under secret law and coercively interrogating suspects around the world with secret tactics. It now plans to hold military trials in which the means used to obtain confessions and send defendants to their death will also remain secret. Unless Congress insists on public accountability on wiretapping, interrogation and military trials, we may never know the evils committed in our name. And with this Administration's track record, is there any reason we should not expect the worst?

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