While President Bush would like Congress to allow phone companies to remain complicit in breaking the law, they're having none of it. In a rare exercise of its power, Congress has refused to grant immunity to telecommunications companies that participated in the illegal, poorly-justified, warrantless wiretapping program. The companies voluntarily provided information to the administration without a warrant, in violation of FISA, the Fourth Amendment, and 18 U.S.C. 2511, which explicitly prohibits phone companies from disclosing subscriber information without a court order.

According to an article in today's Wall Street Journal, the Democrats want to amend FISA to permit more court oversight of wiretaps. The administration opposes this. Naturally, we all know that the administration's real reason for not wanting court oversight is due to Vice President Cheney's desire for total control of the government. But they obviously can't say that this is their reasoning. So, then, what is their public reasoning for permitting phone records to be searched without a warrant? Let's look to President Bush's speeches.

In an Oct. 10 speech, Bush offered the following reasons for extending the Protect America Act, which is in itself an extension of several USA PATRIOT Act provisions:

It must give our intelligence professionals the tools and flexibility they need to protect our country. It must keep the intelligence gap firmly closed, and ensure that protections intended for the American people are not extended to terrorists overseas who are plotting to harm us. And it must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks.

Bush never explains how non-PATRIOT Act regulations don't "give our intelligence professionals the tools and flexibility they need to protect our country." How does requiring a warrant from a secret court hamper intelligence officials? Furthermore, FISA explicitly provides for 72 hours' worth of surveillance while a warrant is pending. If the Bush Administration feels that surveillance needs to be conducted right now, such surveillance can be done for three days while a warrant application is reviewed. What surveillance is so urgent that it must be done not only sooner than "immediately," but must be done without a warrant ever being issued at all?

Keeping "the intelligence gap firmly closed" is a function of both our spying regulations and the competency of our intelligence community. Since Bush will not tell us how warrants hamper intelligence-gathering, we must assume that our ability to gather intelligence (and here, the phrase "intelligence gap" evokes the old trope of the "missile gap" between the United States and the Soviet Union, which was itself a lie, as there was no point when the Soviet Union ever had more missiles than we did) is limited only by our intelligence community itself. Such activities as firing Arabic translators for being homosexual definitely adversely affect "the intelligence gap," but those activities are actively pursued by the Bush Administration and are not a result of the limitations of warrants.

Note how Bush phrases his last justification: he doesn't want "protections intended for the American people" to be "extended to terrorists overseas." But terrorists overseas are not at issue, and they never have been. Our government is free to monitor communications that occur completely overseas however they want. What is at issue is when terrorists overseas communicate with terrorists in the United States. Then, the long arm of surveillance turns its magnifying glass back upon the United States, and it is at that point that FISA kicks in, to ensure that the mechanisms of surveillance are not used upon what FISA calls "United States persons." FISA exists to ensure that our intelligence mechanisms are neither (1) accidentally used upon American citizens; nor (2) intentionally used upon American citizens. It is for the latter reason that FISA was created in the first place: President Nixon abused the government's surveillance powers and spied on Americans for his own reasons. FISA was created in response to make it very clear that the government was not to spy on American citizens or residents. If it were to do so, it would have to go through domestic channels of obtaining warrants in regular courts.

If Bush has a problem with FISA, it may very well be because he wants to be able to spy on Americans without anyone knowing about it. At the same time, he doesn't want anyone to know about it. Therefore, he uses FISA as his cover. This is also explicitly illegal, as FISA itself prohibits unlawful surveillance from being conducted "under color of law."

His explanations don't make any sense: he claims that current law isn't enough to stop terrorism; in fact, current law is more than sufficient to stop terrorism. Judges are routinely awoken in the wee hours of the night to sign warrants. They are "on call" 24 hours a day, so it isn't a matter of the time requirement involved to obtain a warrant. FISA allows surveillance for up to three days before a warrant is required, so it isn't a matter of the need for immediacy in conducting surveillance.

What, then, Mr. Bush, is your reasoning? Why must you be given the power to conduct surveillance -- possibly on American citizens -- with no oversight and no accountability? Are you asking us to just trust you? "Just trust me" is contrary to the Constitution, and since the Constitution makes no distinction between presidential powers in wartime or peacetime, the only legal recourse for you is to seek a Constitutional amendment allowing you to suspend certain powers of Congress and the judiciary, and take those powers as your own -- as well as suspend some civil liberties -- in times of war. Are you prepared to ask for such an amendment? If you're not, then you'd best comport yourself to the law. As Justice Jackson once wrote, "Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

It is our Constitution that keeps the United States from devolving into a dictatorship.