House Speaker Nancy Pelosi claims that a key positive feature of the new wiretap "compromise" is that the bill reaffirms that the President must follow the law, even though the same bill virtually assures that no one will be held accountable for George W. Bush's violation of the earlier spying law. Share this article
In other words, in the guise of rejecting Bush's theories of an all-powerful presidency that is above the law, the Democratic leadership cleared the way for the President and his collaborators to evade punishment for defying the law.
So, why should anyone assume that the new legislative edict demanding that the President obey the law will get any more respect than the old one, which established the Foreign Intelligence Surveillance Act of 1978 as the "exclusive" means for authorizing electronic spying?
It wasn't that Bush and his team didn't understand the old law's language; they simply believed they could violate the law without consequence, under the radical theory that at a time of war -- even one as vaguely defined as the "war on terror" -- the President's powers trump all laws as well as the constitutional rights of citizens.
Essentially, Bush was betting that even if his warrantless wiretap program was disclosed -- as it was in December 2005 -- that he could trust his Republican congressional allies to protect him and could count on most Democrats not to have the guts to challenge him.
His bet proved to be a smart one. After the New York Times revealed the warrantless wiretaps two and a half years ago, Congress took no steps to hold Bush accountable. Before the 2006 elections, Pelosi declared that Bush's impeachment was "off the table."
Then, on the eve of the August 2007 recess, the Democratic-controlled Congress was stampeded into passing the "Protect America Act," which effectively legalized what Bush had already done and expanded his spying powers even more.
After that law was passed, U.S. news reports mostly parroted the White House claim that it "modernized" FISA and "narrowly" targeted overseas terror suspects who might call or e-mail their contacts in the United States.
However, it soon became clear that the law applied not just to terror suspects abroad who might communicate with Americans, but to anyone who is "reasonably believed to be outside the United States" and who might possess "foreign intelligence information," defined as anything that could be useful to U.S. foreign policy.
That meant that almost any American engaged in international commerce or dealing with foreign issues -- say, a businessman in touch with a foreign subsidiary or a U.S. reporter sending an overseas story back to his newspaper -- was vulnerable to warrantless intercepts approved on the say-so of two Bush subordinates, the Attorney General and the Director of National Intelligence.
Beyond the breathtaking scope of this new authority, the Bush administration also snuck in a clause that granted forward-looking immunity from lawsuits to communications service providers that assisted the spying.
That removed one of the few safeguards against Bush's warrantless wiretaps: the concern among service providers that they might be sued by customers for handing over constitutionally protected information without a warrant.
In short, the "Protect America Act" made warrantless surveillance legally cost free for a collaborating service provider, tilting the scales even further in favor of the government's spying powers.
A week after the "Protect America Act" was passed, the New York Times and the Washington Post published front-page stories explaining how the Bush administration had ambushed the Democrats.
Pressed up against the start of the August recess and the prospect of Republican taunts that Democrats were "soft on terror," the Democratic leaders abandoned earlier compromise proposals and accepted the more expansive law. Their one point of resistance was putting a February 2008 sunset provision into the law.