Spying program abuses power of government

What do you do when critics call the legality of your secret spying program into question? If you’re the Bush administration, you defend it: both by becoming ever more secretive and by claiming to be above the law.

The legal basis for the Terrorist Surveillance Program, which was launched soon after 9/11 to capture conversations of potential terrorists, has always been shaky at best. The Foreign Intelligence Surveillance Act of 1978 (FISA) outlawed warrantless eavesdropping on Americans, and the Terrorist Surveillance Program was revealed in 2005 to allow just that.

Though supposedly altered so as to operate within the law, the surveillance program continues to be defended on alarming and seemingly contradictory grounds — that its legality depends on operational details too secret to be revealed, and that legality isn’t an issue, anyway, since President Bush’s powers as commander in chief cannot be so bound by law.

These two circular lines of defense were on display earlier this month, when the Bush administration flouted the twice-extended deadline to turn over to a Senate committee subpoenaed documents relating to the Terrorist Surveillance Program’s origins and legal justification.

A letter from Vice President Dick Cheney’s counsel cataloged relevant documents, but stopped short of promising to turn them over, claiming they could be withheld under Bush’s executive privilege.

We see the justifications of executive privilege — that turning over the documents would endanger national security or the president’s access to candid advice — as little more than weak excuses.

Earlier this month, this same logic of secrecy, which plays to people’s fears, helped excuse a further weakening of the law as Congress, in the Protect America Act, effectively gutted FISA protections against warrantless surveillance in a rush to stop an alleged terrorist threat.

Instead of making a small and needed fix to FISA, the Protect America Act greatly broadened the government’s power to snoop.

Legal scholars say FISA has been rendered toothless, as the act waives its oversight for all surveillance “directed at” persons “reasonably believed” to be outside the country.

Now that Congress has promised to revise this temporary measure, President Bush and Vice President Cheney’s continued excuses are all the more intolerable, obstructing Congress’ ability to examine the genesis of the Terrorist Surveillance Program.

Sen. Patrick Leahy, D-Vt., in response, has threatened the administration with contempt, but worries, rightly, that the courts would only provide further delays.

Justice Department lawyer Bruce Fein has suggested some long-term alternatives to deal with such abuse of power: a special three-judge executive-privilege court or legislative-executive committees in the House and Senate.