Congress has choice to make

To Ron Wyden, even after five years on the Senate Intelligence Committee, part of it seems simple.

“Accountability is straightforward,” the Oregon Democrat said last week. “When a law is passed, everybody ought to comply with it.”

Which seems like a fairly basic principle.

Even on the subject of the Foreign Intelligence Surveillance Act, and whether a law saying that the government needs a court order to wiretap someone means that the government needs a court order to wiretap someone.

When Congress comes back next week, it will decide how much it cares about the laws it passes being obeyed. When a federal law falls, and the government is listening in on the phone, does it make a sound?

The same day Wyden was saying that a law was actually a law, a prominent Bush administration legal thinker was arguing differently.

According to John Yoo – the former deputy assistant attorney general who set out the position that torture wasn’t torture unless it includes “physical injury such as death or organ failure” – following the law can be optional.

The Foreign Intelligence Surveillance Act “says, ‘Look, you have a choice,’ ” Yoo said Wednesday to the conservative Heritage Foundation. “If you work through FISA, then you can use the fruits of those searches in criminal prosecution.”

No harm, no foul.

It’s an interesting argument – giving, among other things, boundless range to a government’s general curiosity.

The permission doesn’t actually seem to appear in language anywhere, but then an administration that complains about judges reading laws broadly always gives itself scope to read not just between the lines, but outside them.

Next week, Congress will show how interested it is in what happens to its laws.

“I think,” Wyden says, “you’ve seen a number of influential Republicans say it’s not going to wash to stiffarm Congress on this.”

He lists two Republican colleagues of his on the Intelligence Committee, and Rep. Heather Wilson, R-N.M., chairwoman of a House Intelligence Committee subcommittee, who says she wants to hold hearings on the wiretaps. But nobody seems to know what those hearings might cover.

The White House has been burning up the telephone wires to Capitol Hill – and for all we know, tapping them – to limit any investigation. Sen. Mike DeWine, R-Ohio, apparently wants to look at the expansive judge-free eavesdropping program just long enough to pass a law declaring it legal.

But to Wyden, even doing that would require more information than the White House wants to give Congress, or anybody else.

“This position is odd even by the bizarre standards of the Beltway,” he concludes.

“Congress doesn’t do that great in reforming programs that it knows anything about. Here you have Congress looking to reform a program that nobody knows anything about.”

And a Bush administration that badly wants to keep it that way.

Sometime in 2004, for example, Attorney General John Ashcroft and his deputy, James Comey, expressed alarm about the extent of warrantless wiretapping. But the White House has assured Congress that there is no reason it should hear from Ashcroft or Comey about their concerns.

There are reasons for Congress to take a real look at FISA, along with the Bush administration’s diversions from it. As Wyden notes, there have been considerable changes in communications since the act was passed in 1979, and no doubt FISA could use some updating.

But there is also the basic question of whether, when Congress passes a law to set up a procedure for wiretapping and an administration ignores it, anybody cares.

The answer to that question can come only from Congress.

As John Yoo says, FISA gives it a choice.