New York Times Editorial - Bush's eavesdropping

New York Times Editorial - Bush's eavesdropping
Copyright by The New York Times
Published: November 30, 2006


It was one of the more outrageous moments in the story of the Bush administration's illegal domestic wiretapping. Almost a year ago, congressional Democrats called for a review of the Justice Department's role in the program. But the department investigators assigned to do the job were unable to proceed because the White House, at President George W. Bush's personal direction, refused to give them the necessary security clearance.

Now the president, for reasons we can't help thinking might have something to do with the midterm elections, has changed his mind. The White House will give Justice Department inspectors the required clearance, and a review will go forward.

That's all to the good, as long as the investigation is not intended to pre- empt any efforts by the new Democratic majority to conduct its own congressional review of the wiretap program. The Justice Department inquiry will hardly do the full job.

The department's inspector general, Glenn Fine, has already said that the question of whether the program was legal is beyond his jurisdiction. Instead, he will investigate whether department employees followed the rules governing the program, established in a secret executive order signed by Bush in October 2001. Since the rules will presumably stay secret, the investigation will not even clarify just how far from established legal standards Bush strayed when he authorized the government to eavesdrop on Americans' international calls and e-mail without a court-issued warrant.


The Justice Department inquiry also will do nothing to fix the biggest problem with Bush's eavesdropping program, which is that - once again - he ignored existing law and instead tried to create a system outside the law, resting on his dangerously expansive claims of executive power.

If Bush had wanted to conduct the wiretapping within the law, he could have quite easily done so, using the Foreign Intelligence Surveillance Act.

Fine could still provide an important - if limited - service. The investigation might help Congress understand whether FISA needs updating - something the administration has been loath to discuss as long as it has been able to end-run the court.

The question of the wiretap program's constitutionality is making its way through the courts and should ultimately be decided by the Supreme Court. Congress should not be satisfied with Fine's very limited investigation. It should mount its own independent inquiry into how the war on terror, and American civil liberties, are being affected by an eavesdropping program about which the American people have been told so little.