With unusual vigor, The New York Times (Jan. 29)–"Spies, Lies, and Wiretaps"– editorializes against the Bush Administration’s smarmy defense of its illegal secret eavesdopping campaign.  Exerpts:

A bit over a week ago, President Bush and his men promised to
provide the legal, constitutional and moral justifications for the sort
of warrantless spying on Americans that has been illegal for nearly 30
years. Instead, we got the familiar mix of political spin, clumsy
historical misinformation, contemptuous dismissals of civil liberties
concerns, cynical attempts to paint dissents as anti-American and
pro-terrorist, and a couple [sic] of big, dangerous lies.
…
Sept. 11 could have been prevented. This
is breathtakingly cynical. The nation’s guardians did not miss the 9/11
plot because it takes a few hours to get a warrant to eavesdrop on
phone calls and e-mail messages. They missed the plot because they were
not looking. The same officials who now say 9/11 could have been
prevented said at the time that no one could possibly have foreseen the
attacks. We keep hoping that Mr. Bush will finally lay down the bloody
banner of 9/11, but Karl Rove, who emerged from hiding recently to talk
about domestic spying, made it clear that will not happen — because the
White House thinks it can make Democrats look as though they do not
want to defend America. "President Bush believes if Al Qaeda is calling
somebody in America, it is in our national security interest to know
who they’re calling and why," he told Republican officials. "Some
important Democrats clearly disagree."

Mr. Rove knows perfectly well that no Democrat has ever said any
such thing — and that nothing prevented American intelligence from
listening to a call from Al Qaeda to the United States, or a call from
the United States to Al Qaeda, before Sept. 11, 2001, or since. The
1978 Foreign Intelligence Surveillance Act simply required the
government to obey the Constitution in doing so. And FISA was amended
after 9/11 to make the job much easier.

We won’t soon have a Rove answer to the question "Which important Democrats did you refer to?"  But, in the UK, "important" members of Parliament seem to "disagree" with Tony Blair’s determination to lift a 40-year-old ban on MI5’s snooping on MPs, as revealed by The Telegraph (Jan. 16).  Could it be that Bush has for years been warrantlessly intercepting communications to minority-party members of Congress? 

Only bad guys  are spied on.
Bush officials have said the surveillance is tightly focused only on
contacts between people in this country and Al Qaeda and other
terrorist groups. Vice President Dick Cheney claimed it saved thousands
of lives by preventing attacks. But reporting in this paper has shown
that the National Security Agency swept up vast quantities of e-mail
messages and telephone calls and used computer searches to generate
thousands of leads. F.B.I. officials said virtually all of these led to
dead ends or to innocent Americans. The biggest fish the administration
has claimed so far has been a crackpot who wanted to destroy the
Brooklyn Bridge with a blowtorch — a case that F.B.I. officials said
was not connected to the spying operation anyway.

The spying is legal.
The secret program violates the law as currently written. It’s that
simple. In fact, FISA was enacted in 1978 to avoid just this sort of
abuse. It said that the government could not spy on Americans by
reading their mail (or now their e-mail) or listening to their
telephone conversations without obtaining a warrant from a special
court created for this purpose. The court has approved tens of
thousands of warrants over the years and rejected a handful.

As
amended after 9/11, the law says the government needs probable cause,
the constitutional gold standard, to believe the subject of the
surveillance works for a foreign power or a terrorist group, or is a
lone-wolf terrorist. The attorney general can authorize electronic
snooping on his own for 72 hours and seek a warrant later. But that was
not good enough for Mr. Bush, who lowered the standard for spying on
Americans from "probable cause" to "reasonable belief" and then cast
aside the bedrock democratic principle of judicial review.
…
The rules needed to be changed. In 2002, a
Republican senator — Mike DeWine of Ohio — introduced a bill that would
have done just that, by lowering the standard for issuing a warrant
from probable cause to "reasonable suspicion" for a "non-United States
person." But the Justice Department opposed it, saying the change
raised "both significant legal and practical issues" and may have been
unconstitutional. Now, the president and Attorney General Alberto
Gonzales are telling Americans that reasonable suspicion is a perfectly
fine standard for spying on Americans as well as non-Americans — and
they are the sole judges of what is reasonable.

So why
oppose the DeWine bill? Perhaps because Mr. Bush had already secretly
lowered the standard of proof — and dispensed with judges and warrants
— for Americans and non-Americans alike, and did not want anyone to
know.
…
The Senate Judiciary Committee is about to start hearings on the
domestic spying. Congress has failed, tragically, on several occasions
in the last five years to rein in Mr. Bush and restore the checks and
balances that are the genius of American constitutional democracy. It
is critical that it not betray the public once again on this score.

The Times hits a few false notes: e.g. "The secret program violates the law as currently written. It’s that
simple."  No.  It’s simpler: The secret program violates the law, period.  To qualify, with "as currently written," is to suggest that the relevant law has been in a state of flux.  That’s precisely what Gonzales et al. would like us to believe: as though quicksilver changes had made the law difficult to pin down.  Not so.  In fact, as Bush himself acknowledges, warrantless  snooping contravenes a law that has been on the books since 1978.  But The Times is showing improvement, and it seems unlikely that the minority members of the Judiciary Committee will let go of this one–at least not until they get assurances that their communications aren’t being warrantlessly monitored.