Retreat and Cheat

NYT Editorial

President Bush’s warrantless wiretapping program was once deemed so vital to national security that it could not be subjected to judicial review. Last week, the White House said it was doing just that.

In 2005, the White House would not even comment on news reports about the C.I.A.’s prisons because Americans’ safety depended on their being kept secret. In 2006, Mr. Bush held a photo-op to announce that he was keeping them open.

The administration has repeatedly insisted that it was essential to the American way of life for Mr. Bush to be able to imprison foreigners without trial or legal counsel. Now the administration claims it was trying to bring those detainees to trial all along but was stymied by white-shoe lawyers.

By now, this is a familiar pattern: First, Mr. Bush and his aides say his actions are so vital to national security that to even report on them — let alone question them — lends comfort to the terrorists. Then, usually when his decisions face scrutiny from someone other than a compliant Republican Congress, the president seems to compromise.

Behind this behavior are at least two dynamics, both of them disturbing.

The first is that the policies Mr. Bush is trying so hard to hide have little, if anything, to do with real national security issues — and everything to do with a campaign, spearheaded by Vice President Dick Cheney, to break the restraints on presidential power imposed after Vietnam and Watergate. And there is much less than meets the eye to Mr. Bush’s supposed concessions.

Generally, they mask the fact that he either got what he wanted from Congress or found a way to add some other veneer of legitimacy to his lawless behavior. The campaign to expand presidential power goes on, at the expense of American values.

Mr. Bush’s aides don’t try very hard to hide it. The day the shift on domestic wiretapping was announced, Attorney General Alberto Gonzales gave a speech in which he sneered at the idea of allowing judges to review national security policies. The next day, he was in the Senate refusing to turn over the agreement that he said would provide judicial review for the wiretapping. And his lawyers were in court arguing that a lawsuit over the warrantless eavesdropping should be dropped because Mr. Bush said he would stop the operation.

We don’t know exactly what agreement the White House made with the Foreign Intelligence Surveillance Court about eavesdropping. But there is evidence that Mr. Bush got some broad approval for a wiretapping “program” rather than the individual warrants required by law. Because the court works in secret, the public may never know whether Mr. Bush really is complying with the law.

Nor is there likely to be an explanation of why the White House could not have sought the court’s approval in the first place. The White House’s claim that the process is too cumbersome doesn’t ring true. The law already allows the government to wiretap first and then ask for a warrant within three days. The real reason is almost certainly that the imperial presidency had no desire to share power even with the most secret part of the judiciary.

Why else would the president have turned down more than one offer from Congress to amend the 1978 wiretapping law after 9/11 to make getting warrants easier and faster than the three-day rule?

For that matter, why did the White House initially refuse to work with senior Republican lawmakers to create a legal court system for the Guantánamo detainees? Instead, Mr. Bush ordered the creation of kangaroo courts, expanding presidential authority at the expense of Congress and the judiciary, and at the expense of justice.

The Republican-led Congress (with the help of cowed Democrats) refused to hold Mr. Bush and his presidency to account on any of these issues. The Military Commissions Act, passed by Congress just before the midterm elections last year, gave Mr. Bush a pass on what he had already done with the detainees outside the law, and did not stop him from jailing non-Americans indefinitely without due process. Congress absolved American intelligence agents of past abuses of prisoners and approved future abuses, and Mr. Bush happily announced that the C.I.A. prisons would stay open.

There are signs, from people like Senator Patrick Leahy, the new chairman of the Judiciary Committee, that the Democrats will be tougher than the Republicans on these issues. The eavesdropping program and Mr. Bush’s secret deal with the surveillance court are a very good place to start.