Editorial: Domestic spying a hard sell

Wednesday, Feb. 8, 2006 | 12:31 p.m.

A 1978 federal law is at the heart of congressional hearings into President Bush's warrantless spying on overseas calls placed or received by Americans. The first hearing was Monday and will be followed by at least two others. The central question is whether Bush is right in saying that his powers as a wartime president authorized him to secretly violate this law after 9/11.

We have written that Bush should have abided by the law, known as the Foreign Intelligence Surveillance Act. The law established a top-secret court to quickly act upon federal requests to use U.S. soil as a base for spying on suspected foreign enemies. The court has a record of granting most requests.

The Bush administration, though, says there is no time for the court in the post-9/11 era. The president argues that his authority to bypass it is found in the U.S. Constitution, which establishes him as commander in chief, and in a congressional resolution after 9/11 stating that he may use "all necessary and appropriate force" to prevent future attacks.

Attorney General Alberto Gonzales spent about eight hours Monday defending Bush's decision before a highly skeptical and bipartisan Senate Judiciary Committee. The committee's chairman, Sen. Arlen Specter, R-Pa., rebuked Gonzales for arguing that the 1978 law had not been broken. "That just defies logic and plain English," Specter said.

And who more appropriate to speak of the surveillance act than the man who was president in 1978 and signed it into law? Former President Jimmy Carter, in Henderson on Monday to support his son Jack's bid to unseat Sen. John Ensign, R-Nev., expressed himself clearly. He said Bush's decision was "disgraceful and illegal" and questioned how many "innocent Americans have had their privacy violated."

On Sunday's NBC news show "Meet the Press," Specter said he was thinking about calling Carter to testify. Carter said he would go if asked. "I know all about (the intent of the law) because it was one of the most important decisions I had to make," Carter told reporters in Henderson.

Carter said he hoped the case would eventually go to the U.S. Supreme Court, adding, "I have no doubt that when it is over, the Supreme Court will rule that Bush has violated the law."

And if the tone among senators at Monday's hearing prevails, we have no doubt that this committee will also find that Bush was wrong to cast aside the law.