let's call this particular form of freedom lip service: "liberty theater" it's been quite a show and only promises to get even more entertaining... :) ---cut--- http://www.oregonlive.com/commentary/oregonian/index.ssf?/base/editorial/114195753619950.xml&coll=7 NO-QUESTIONS WIRETAPPING Friday, March 10, 2006 David Sarasohn R emember that fundamental principle -- the one that got everybody so upset when they first heard about the National Security Agency's freelance wiretapping -- that says that if the U.S. government wants to listen to your phone calls, it needs to get a court's permission? George W. Bush used to talk about it when he was running for re-election. Some people call it the Fourth Amendment. Remember it? The U.S. Senate Select Committee on Intelligence has a message for you about that principle: Forget it. After months of huffing and puffing and declaring its determination to stand up for the Constitution against the White House, the committee -- or at least its eight-member GOP majority -- has decided resolutely to get out of the way. As a result, the majority is now supporting a proposal that would allow the Justice Department, for the first time ever, to listen in on phone calls without telling anybody -- courts or Congress. But only for 45 days. The 45-day limit is the committee Republicans' idea of a constitutional limit on executive power. Not that the eavesdropping would have to stop after 45 days -- although if it did, nobody outside the executive branch would ever know that the wiretapping had happened -- or that after 45 days a court would have to give its approval. The most the Intelligence Committee dares to suggest is that after listening to someone's phone calls for a month and a half, the government would have to tell a congressional subcommittee that it wants to keep doing it. This is not your father's Fourth Amendment. It's not even George Bush's father's Fourth Amendment. "Aside from the civil liberties dimension," William C. Banks, a law professor at Syracuse University, told The New York Times, "there's an invitation here to the president to go on indefinitely with warrantless surveillance." It's not like there's any principle involved. "The Constitution has always been a teeter-totter between collective security and individual privacy," says Sen. Ron Wyden, D-Ore., a minority member of the committee. "This new proposal moves the teeter-totter very significantly in one direction. "I think this is a significant skewing of the balance. We're on the brink of some approaches the committee will regret, and the country will regret." Remarkably, Republican committee members are preening themselves on resisting White House pressure. The committee did turn down the proposal of Sen. Mike DeWine to simply declare whatever the administration had done to be legal -- without delving very deeply into what the administration has done. The majority's reluctance to bother the White House by pursuing the facts needed to conduct oversight is likely to limit any efforts the committee might make in the future; as Wyden notes, "Congress can't possibly legislate in a bipartisan manner with the level of information we've got now." There are other interesting things for Congress to examine. The administration claims its judge-free wiretap power comes from the congressional authorization of force following Sept. 11, 2001. Thursday, the Washington Post quoted David S. Kris, associate deputy attorney general in charge of national security issues from 2000 to 2003, that "In sum, I do not believe the statutory law will bear the government's weight. . . . I do not think Congress can be said to have authorized the NSA surveillance." You might think that point would interest the congressional majority, although nobody wants to be so impolite as to bring it up. It hasn't been a heartening stretch for congressional GOP leaders concerned about constitutional rights. Senate Judiciary Committee chairman Arlen Specter just floor-managed the reauthorization of the Patriot Act while insisting that he had many concerns about it, and promising to produce separate legislation to deal with them -- although by renewing the bill, he's abandoned any leverage on the issue. Maybe he can bring it up again under the new Bill of Rights 45-day exception rule. Of course, if Specter later remembers his constitutional concern, it's not hard to imagine the Senate majority and White House response: Forget it. David Sarasohn, associate editor, can be reached at 503-221-8523 or davidsarasohn@news.oregonian.com. ---end-cut---