As the presidential primaries hurtle toward some sort of clarity, on one critical issue the air in Washington grows murkier: warrantless wiretaps. For months George W.
Bush has sought to make permanent his constitutionally toxic Protect America Act (PAA), passed as a temporary measure last August, giving the executive branch unprecedented electronic surveillance powers that bypassed the well-established Foreign Intelligence Surveillance Act courts. The Administration also wanted to insulate telecommunications companies from lawsuits for past illegal cooperation with wiretapping security agencies.
It is a measure of shifting political sands that Speaker Nancy Pelosi and House Democrats found the gumption to take a stand against the President and halt the PAA, letting it expire, at least for now, as Congress headed for recess. Telecommunications company immunity in particular roused strong opposition among Democrats. Pelosi had offered the White House a short extension of the PAA during which to negotiate the issue, but the President, as usual, refused to compromise.
The House’s confrontation with the President is especially notable because the Senate had already folded its cards. Nearly half of Senate Democrats took the cautious road of voting in favor of the wiretapping law, joining Republicans to pass the bill, complete with telecommunications company immunity, despite months of courageous pleas and parliamentary maneuvering led by Chris Dodd of Connecticut. (Senators Barack Obama and Hillary Clinton, it should be noted, missed the warrantless wiretap vote. Both said they would have voted against the bill, and Obama had opposed telecommunications company immunity on an earlier procedural vote. Senator John McCain, on the other hand, robustly supported the PAA, calling it “an absolute necessity to protect this nation.”)
The House’s refusal to cave in to Bush creates a rare moment to reconsider some of the most ill-conceived, unconstitutional and unnecessary laws brought up for a vote since the September 11 attacks. Until now, modifications to the PAA proposed in the House and the Senate have been modest and limited. Both versions would allow the government to conduct wholesale surveillance inside the country unrelated to terrorism–an electronic dragnet, rather than individually targeted taps. Neither would provide adequate safeguards for information collected about American citizens.
The Congressional debate over electronic surveillance gained even greater urgency on February 19, when the Supreme Court declined to hear the American Civil Liberties Union’s lawsuit challenging warrantless wiretapping. Some members of Congress may have hoped that the Court would take the heat off with a definitive ruling one way or another–but for now, at least, the ball is in Congress’s court.
If we’ve learned anything about President Bush, it is that his appetite for extralegal power is insatiable, and his will- ingness to abuse the judicial system is boundless. On page 4, Ross Tuttle exposes the Administration’s manipulation of the Guantánamo capital trials in an attempt to ensure that there will be no acquittals. Any concession from Congress or the courts–whether on Guantánamo, the Patriot Act or surveillance–will lead to new abuses.
For now the Protect America Act is off the books. Emboldened by their confrontation with the White House, Pelosi and House Democrats can and should go further, calling a permanent halt to one more Bush end-run around the Constitution.