Monday, March 6

Kabuki Congress


Imagine being stopped for speeding and having the local legislature raise the limit so you won't have to pay the fine. It sounds absurd, but it's just what is happening to the 28-year-old law that prohibits the president from spying on Americans without getting a warrant from a judge.

It's a familiar pattern. President Bush ignores the Constitution and the laws of the land, and the cowardly, rigidly partisan majority in Congress helps him out by rewriting the laws he's broken.

In 2004, to take one particularly disturbing example, Congress learned that American troops were abusing, torturing and killing prisoners, and that the administration was illegally detaining hundreds of people at camps around the world. The chairman of the Senate Armed Services Committee, John Warner, huffed and puffed about the abuse, but did nothing. And when the courts said the detention camps do fall under the laws of the land, compliant lawmakers simply changed them.

Now the response of Congress to Mr. Bush's domestic wiretapping scheme is following the same pattern, only worse.

At first, lawmakers expressed outrage at the warrantless domestic spying, and some Democrats and a few Republicans still want a full investigation. But the Republican leadership has already reverted to form. Senator Arlen Specter, the chairman of the Judiciary Committee, has held one investigative hearing, notable primarily for Attorney General Alberto Gonzales's refusal to answer questions.

Mr. Specter then loyally produced a bill that actually grants legal cover, retroactively, to the one spying program Mr. Bush has acknowledged. It also covers any other illegal wiretapping we don't know about — including, it appears, entire "programs" that could cover hundreds, thousands or millions of unknowing people.

Mr. Specter's bill at least offers the veneer of judicial oversight from the Foreign Intelligence Surveillance Court. A far more noxious proposal being floated by Senator Mike DeWine, Republican of Ohio, would entirely remove intelligence gathering related to terrorism from the law on spying, known as the Foreign Intelligence Surveillance Act.

Let's call this what it is: a shell game. The question is whether the Bush administration broke the law by allowing the National Security Agency to spy on Americans and others in the United States without obtaining the required warrant. The White House wants Americans to believe that the spying is restricted only to conversations between agents of Al Qaeda and people in the United States. But even if that were true, which it evidently is not, the administration has not offered the slightest evidence that it could not have efficiently monitored those Qaeda-related phone calls and e-mail messages while following the existing rules.

In other words, there is not a shred of proof that the illegal program produced information that could not have been obtained legally, had the administration wanted to bother to stay within the law.

The administration has assured the nation it had plenty of good reason, but there's no way for Congress to know, since it has been denied information on the details of the wiretap program. And Senator Pat Roberts, the chairman of the Intelligence Committee, seems bent on making sure it stays that way. He has refused to permit a vote on whether to investigate the spying scandal.

There were glimmers of hope on the House side. Representative Heather Wilson, the New Mexico Republican who heads one of the subcommittees supervising intelligence, called for a "painstaking" review of the necessity and legality of the spying operation. But the chairman of the House Intelligence Committee, Peter Hoekstra, is turning that into a pro forma review that would end with Congress rewriting the foreign-intelligence law the way Mr. Bush wants.

Ms. Wilson still says that the House needs to get the facts before it rewrites the law, and we hope she sticks to it. But she's facing a tough race this fall, and her staff has already started saying that, well, she never called for "an investigation," just "an oversight review."

Putting on face paint and pretending that illusion is reality is fine for Kabuki theater. Congress should have higher standards.