Bush still thinks he’s above law

You could say that the reauthorized Foreign Intelligence Surveillance Act, which passed through the Senate while the rest of the country was watching the Potomac Primary, was disappointing.

Or you could say, as Sen. Chris Dodd, D-Conn., did, that it approved the “single largest invasion of privacy in the history of the country.”

After that, you get to the disappointing part.

On two major amendments, plus final passage, the narrowly Democratic Senate assured the Bush administration – now enjoying a 30 percent approval level – that in terms of violations of constitutional rights, the last thing the Senate wanted to do was make any trouble.

Now the Senate bill has to be matched with the House version, which is a little closer to the idea that if the government wants to listen in on conversations, it needs legal authority to do so – and that when Congress passes a bill, it’s a law, not a suggestion.

Thursday, the Bush administration turned to its usual position on these issues – that any congressional resistance to what the White House wants means we’re all going to die.

“I guess you got to come to the conclusion that there’s a threat to America, or not a threat,” the president said, warning that he might have to cancel a state visit to Africa. “I mean, evidently, some people just don’t feel that sense of urgency. I do.”

The core difference between the House and Senate bills is that the Senate bill provides legal immunity to telephone companies for giving the administration vast amounts of information on their customers that the administration may not have had the legal right to ask for. (Qwest, at least, raised the question at the time.) As Sen. Ted Kennedy, D-Mass., pointed out, if Bush thinks both that the country faces desperate danger if the bill is not immediately reauthorized, and that he won’t accept reauthorization without telcom immunity, “he’s willing to let Americans die to protect the phone companies.”

Bush must have a terrific long-distance plan.

Thursday, in a rare show of firmness, House Democrats refused to back down and pointed out that even if the bill lapsed, the government would still have authority to do any surveillance necessary.

But with telcom immunity, Americans would have no way of every finding out whether companies turning over private information to the government on request did it legally – or how often it happened.

“I think this is straight out of the vice president’s policy shop,” said Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee who resisted immunity. “They said it was a legal program, and now they want Congress to step in. I am certain that it is very unwise for Congress to step into 40 lawsuits and accept the administration’s word.”

Wyden was also a co-sponsor of another amendment defeated in the Senate. Sen. Dianne Feinstein, D-Calif., attempted to put into the bill “exclusivity” language, which would just mean that the law actually meant what it said.

“The president does not have the right to collect the contents of Americans’ communications without obeying the governing law – and that law is FISA,” said Feinstein. “Let there be no doubt: FISA is – and continues to be – the exclusive means for electronic surveillance in this country.”

Feinstein’s amendment died when 41 Republican senators threatened a filibuster against declaring that the president had to obey the law they were about to pass. After that, Feinstein – who had actually supported immunity – voted against the bill.

There’s a certain Alice-in-Wonderland quality to the entire debate, since the Bush administration doesn’t consider itself bound by the laws Congress so carefully passes. The same day, the Senate passed an amendment to the Intelligence Reform Act that would forbid the use of torture in CIA interrogations, causing the president to threaten to veto the bill – although he insists that of course the United States doesn’t torture anybody.

The last time Congress passed such a rule, Bush signed the bill, and then issued a signing statement that he wasn’t obliged to obey it.

On the subject of obeying laws, or being in any way limited by the Constitution, the president really isn’t hostile to the idea.

He just considers himself immune.