New York Times Epitath of FISA

Editorial
The Fear of Fear Itself

It was appalling to watch over the last few days as Congress — now led by Democrats — caved in to yet another unnecessary and dangerous expansion of President Bush’s powers, this time to spy on Americans in violation of basic constitutional rights. Many of the 16 Democrats in the Senate and 41 in the House who voted for the bill said that they had acted in the name of national security, but the only security at play was their job security.

There was plenty of bad behavior. Republicans marched in mindless lockstep with the president. There was double-dealing by the White House. The director of national intelligence, Mike McConnell, crossed the line from being a steward of this nation’s security to acting as a White House political operative.

But mostly, the spectacle left us wondering what the Democrats — especially their feckless Senate leaders — plan to do with their majority in Congress if they are too scared of Republican campaign ads to use it to protect the Constitution and restrain an out-of-control president.

The votes in the House and Senate were supposed to fix a genuine glitch in the 1978 Foreign Intelligence Surveillance Act, which requires the government to obtain a warrant before eavesdropping on electronic communications that involve someone in the United States. The court charged with enforcing that law said the government must also seek a warrant if the people are outside the country, but their communications are routed through data exchanges here — a technological problem that did not exist in 1978.

Instead of just fixing that glitch, the White House and its allies on Capitol Hill railroaded Congress into voting a vast expansion of the president’s powers. They gave the director of national intelligence and the attorney general authority to intercept — without warrant, court supervision or accountability — any telephone call or e-mail message that moves in, out of or through the United States as long as there is a “reasonable belief” that one party is not in the United States. The new law all but eviscerates the 1978 law. The only small saving grace is that the new statute expires in six months.

The House handled this mess somewhat better than the Senate, moving to the floor a far more sensible bill. Mr. McConnell certified that the House bill would address the problem raised by the court. That is, until the White House made clear that it wanted to use the court’s ruling to grab a lot more power. Mr. McConnell then reversed his position and demanded that Congress pass the far more expansive bill.

In the Senate, the team of Harry Reid, the majority leader, gave up fast, agreeing to a deal that doomed any good bill. The senators then hurriedly approved the White House bill, dumped it on the House and skulked off on vacation. Representative Rahm Emanuel, the fourth-ranking member of the Democratic House leadership, said yesterday that his party would not wait for the new eavesdropping authority to expire, and would have a new, measured bill on the floor by October. We look forward to reading it.

But the problem with Congress last week was that Democrats were afraid to explain to Americans why the White House bill was so bad and so unnecessary — despite what the White House was claiming. There are good answers, if Democrats are willing to address voters as adults. To start, they should explain that — even if it were a good idea, and it’s not — the government does not have the capability to sort through billions of bits of electronic communication. And the larger question: why, six years after 9/11, is this sort of fishing expedition the supposed first line of defense in the war on terrorism?

While serving little purpose, the new law has real dangers. It would allow the government to intercept, without a warrant, every communication into or out of any country, including the United States. Instead of explaining all this to American voters — the minimal benefits and the enormous risks — the Democrats have allowed Mr. Bush and his fear-mongering to dominate all discussions on terrorism and national security.

Mr. Bush claims that he has kept America safe since 9/11. But that claim ignores the country’s very real and present vulnerabilities. Six years after the 9/11 attacks the administration has still failed to secure American ports, railroads and airports from terrorist attack, and has put the profits of the chemical and nuclear-power industries ahead of safeguarding their plants.

Mr. Bush also worries Democratic strategists by talking about “staying on the offensive” against terrorism, but it was his decision to invade Iraq that diverted resources from the real offensive, the one against Al Qaeda in Afghanistan and Pakistan.

Mr. Bush’s incessant fear-mongering — and the Democrats’ refusal to challenge him — has had one notable success. The only issue on which Americans say that they trust Republicans more than Democrats is terrorism. At least those Americans are afraid of terrorists. The Democrats who voted for this bill, and others like it over the last few years, show only fear of Republicans.

The Democratic majority has made strides on other issues like children’s health insurance against White House opposition. As important as these measures are, they do not excuse the Democrats from remedying the damage Mr. Bush has done to civil liberties and the Bill of Rights. That is their most important duty.