Blind Man's Bluff

The New York Times
Blind Man's Bluff

For more than six months, a few senators have been fumbling around in the dark, trying to write laws covering a domestic wiretapping operation that remains a mystery to most of them. Their ideas are far from radical; some just want to bring the White House back under the rule of law by making the spying retroactively legal. But Vice President Dick Cheney, who is in charge of both overseeing the spying and covering it up, has now made it crystal clear that the White House does not intend to let anything happen. It's time for the Senate to stop rolling over and start focusing on uncovering the extent of the spying and enforcing the law.

A good place to start is by compelling the executives of the major telecommunications companies to testify about reports that they have turned over data on the phone calls of millions of Americans without a court order. Those reports were a reminder that this is not a debate about whether the government should spy on terrorists by tapping their phone calls. President Bush wants Americans to believe that critics of the program oppose that, but nobody does. The real issue is that Mr. Bush does not want to bother with legal niceties like getting a warrant or to acknowledge Congress's power by accounting for his actions.

There are four bills on this matter before the Senate Judiciary Committee. One, from Mike DeWine of Ohio, deals with the evident illegality of the program by making it legal — a cynical notion that should be killed quickly. Senator Charles Schumer's bill would grant legal standing for people to sue the government over the wiretapping. At least that is aimed at allowing the courts to enforce a law passed three decades ago to cover precisely this sort of situation.

Senator Dianne Feinstein is proposing changes to that law, the Foreign Intelligence Surveillance Act, which was intended to make it easy for the government to get quick court approval on wiretaps of suspected terrorists or spies. Ms. Feinstein wants to make it even easier for the administration to wiretap first and get permission later. But her bill leaves a gaping loophole for Mr. Bush to go on ignoring FISA, this time with the blessing of Congress. It's also absurdly early to amend the law, since 80 percent of the Senate still doesn't know much more about the spying operation than the average American. The administration has offered no evidence that existing warrant requirements are too restrictive. Mr. Bush is not even asking for changes. He simply thinks he's above this law.

Senator Arlen Specter, chairman of the committee, has been working on a convoluted bill that he thinks will re-establish legal control over the spying. It has been improved but still leaves too much room to evade court scrutiny and may actually widen the range of eavesdropping that can be done with a warrant.

We're baffled by Mr. Specter's continuing efforts to appease the White House. Last week, Mr. Cheney organized a coup in the Judiciary Committee to kill Mr. Specter's plan to subpoena telecommunications executives and ask them about the USA Today report that their companies are turning over phone records without a court order. Mr. Cheney told the panel's Republicans to oppose subpoenas and said the executives had been ordered not to testify because they could expose "extremely sensitive classified information." That's odd, given that the phone companies keep denying the report.

Mr. Specter — who last week was bemoaning the fact that Mr. Cheney watched him pass by twice at a Senate buffet lunch without mentioning that he had just stabbed him in the back — still thinks it's a good sign that the vice president's office offered to review his legislation and suggest changes. Mr. Cheney and his underlings are the problem, not the solution, and Mr. Specter should realize that by now. Mr. Specter has the votes to subpoena the executives. All he has to do is drop his idea of meeting behind closed doors, and side with the panel's Democrats, who want to have the hearing in full view of the Americans whose rights are being violated.