The separation of powers, R.I.P.

Congress adopts laws. The Bush administration does what it wants.


Tim Grieve
May 12, 2006 12:08AM (UTC)

Senate Majority Leader Bill Frist and Senate Minority Leader Harry Reid announced a breakthrough today on immigration legislation. Although they can't guarantee any particular result, they've come up with a process that should produce a bill -- an agreement on the number of amendments to be offered, the time that will be spent debating them and the partisan makeup of the group that will try to reconcile any Senate bill with the one the House has already approved.

With all due respect to the legislative process, doesn't it all sound a little quaint?

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Over the years, members of Congress have adopted, presidents have signed and courts have adjudicated all sorts of laws that are supposed to apply when the government wants to know about calls coming into and going out from a particular telephone number. The Electronic Communications Privacy Act of 1984 lays down some of the rules for obtaining that kind of information. Congress amended the Foreign Intelligence Surveillance Act in 1998 to set forth rules when the government wants the information in the context of foreign intelligence operations. And in 2001, the Bush administration proposed -- and Congress approved -- changes in the rules in the course of adopting the Patriot Act.

So what do we learn today? The Bush administration -- without an act of Congress, without a ruling from the judiciary, without even the usual F-you of a signing statement -- has written its own set of rules for gathering telephone records. Forget words like "subpoena" and "warrant" and "probable cause." Forget fine legislative calibration. Forget all that stuff about amendments and floor debate and compromise in conference committees. None of that matters now. Under the Bush administration's rules, the NSA gets access to every single phone record it can persuade anybody to give it.

What is the government doing with the phone records? Well, we don't know, and we don't really have any way of finding out for sure. The president said today that his administration isn't "mining or trolling through the personal lives of millions of innocent Americans." OK, but isn't it "mining or trolling" through the data? And if it isn't, why has it gone to the trouble and expense of collecting that data at all?

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How is the government safeguarding the information? Well, we don't know that, either. Imagine for a moment that an FBI agent investigating a kidnapping wants to see who has been calling you. The Electronic Communications Privacy Act sets forth the safeguards to be observed before the agent can get the records from a phone company. But now that the NSA has all the records, can the agent simply search through them to find what he needs without getting anyone's approval first? Now imagine that the would-be searcher isn't an FBI agent investigating a crime but a Bush administration official doing some research on a political opponent. Can he run a search through the records, too?

Maybe it's safe to assume that the answer in both cases is no. But the thing is, we shouldn't have to assume. And if we still had a government that operated in the way the Framers imagined, we wouldn't have to. The checks and balances would guarantee it. We'd know that the executive branch was obeying the laws that Congress adopted because it wouldn't have its hands on phone records until a court approved a request and a telephone company complied with it.

It's not like that now. Unless you're lucky enough to live in an area served by Qwest, the NSA apparently already has computer files showing every telephone call you've made or received over the last few years. Maybe the NSA won't look at your calls. Maybe it won't let anyone else do so, either. But you don't know that right now, do you? Sen. Arlen Specter says he's going to hold hearings, and maybe Alberto Gonzales or Michael Hayden or someone from the NSA will appear and say -- once again -- that innocent Americans have nothing to worry about here. Maybe you'll trust them. Maybe you won't. But at the end of the hearing, those will pretty much be the extent of your options.

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So we're thrilled to learn that Bill Frist and Harry Reid are figuring out a way to address an important social and legal issue through carefully crafted legislation. That's how it's supposed to be. We just wish we could believe that it mattered.


Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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Arlen Specter, D-pa. Espionage George W. Bush War Room

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