Occam's Razor

Curiouser and curiouser. Just how far down the rabbit hole does this domestic spying business go anyhow?

If the Bush Administration has its way, not even the Congress will know. Well, maybe a few key members of Congress with the proper clearance will know. Of course, because publicly revealing their knowledge would be a crime, they are keeping their lips zipped.

What we do know (at least at this moment) is that Congress is balking at extending existing wiretap provisions in the domestic spying legislation that it hastily passed this summer. Democrats in Congress want more court and congressional oversight on calls placed between American citizens and potential terrorists overseas. The current legislation delegates to intelligence agencies decisions that traditionally were authorized by the courts. In addition, President Bush is now insisting that the Baby Bells be granted retroactive immunity from the law for facilitating unlawful wiretaps and access to calling records. The Democratic Congress is asking the very reasonable question: “How can we know whether to grant the Baby Bells this immunity when you won’t tell us what they did?” The Administration retorts that it cannot tell the committees responsible for intelligence legislation because in doing so state secrets could be exposed.

Well! Something here stinks to high heaven, that’s for sure. The Administration seems to be tacitly admitting that the actions taken by compliant telephone companies was probably illegal. The nature, size and scope of the illegality though are largely unknown because only a trusted few know what the Baby Bells actually did. One thing is clear: the administration does not want them to held liable. Why? Because the Baby Bells were just doing their duty for God, country and the American Way, which means that if something illegal did happen they should not pay any penalty.

Naturally, I hope that the Congress refuses to pass a bill with such a provision without first knowing the full details of these transgressions. If, as I expect, President Bush vetoes a bill that does not contain the immunity provisions, then I make the following modest proposals instead. First, the bill should grant the Baby Bells immunity if and only if the President agrees to waive his right to pardon any individuals in his administration who may have facilitated this lawbreaking. Second, the bill should require that a special prosecutor to investigate this matter. This way if violations of the law occurred then those who instigated them could be held accountable.

The way I studied government, no one is above the law. Yet in this case, the Bush Administration appears to want to retroactively ensure that no one will have to pay a price for their decision. They want to frame the debate as one of national security, and not pay a price for the fact that they arm-twisted the Baby Bells into facilitating these likely illegal acts. They want us to believe what is simply not true: that they were not required to first petition Congress for these powers.

A decade ago, such an action would have been routinely dealt with by the Justice Department. If there were any concern that the Justice Department could not be impartial, a special prosecutor would be appointed. Few in Congress now trust the Justice Department to impartially go after any violation of the law. This sad and sordid squabble tells us just how badly our system of checks and balances has eroded during this administration. It simply does not give a damn about its duty to ensure that the laws are faithfully and impartially executed.

If the Democrats are more worried that they will be judged “soft on terror” then ensuring our civil liberties and agree to these requirements then the Administration wins through intimidation. Moreover, Congress’s ability to exercise meaningful oversight is further degraded. This is no time for the Democratic congress to capitulate yet again. It needs to demonstrate that it truly is a coequal branch of government. Moreover, in this case it holds the Trump Card. President Bush needs an extension to the badly named Protect America Act. These proposed minimal accommodations to the current egregious law are entirely reasonable. I hope the Congress stands firm. In the process, it will help restore both the rule of law and our system of checks and balances.