Having been freed briefly by a timid Democratic Congress to spy on millions of Americans' overseas communications without warrants, President Bush now hopes to lock in most of these powers before the year ends.
The president and his aides say their antiterror effort requires unfettered intelligence-gathering tools to spare America from another 9/11 attack. So he's pressing Congress to loosen the nation's domestic surveillance law permanently.
But federal agents since long before Sept. 11, 2001, had all of the tools they needed to eavesdrop on enemies here and abroad. Under the nearly 30-year-old Foreign Intelligence Surveillance Act (FISA), agents could get court approval to target terror suspects' communications. A secret FISA court could even sanction spy missions after the fact, in situations where U.S. intelligence agents had to move quickly.
What the FISA did not permit was a vacuum-cleaner approach to the scooping up of massive amounts of U.S.-bound e-mail and telephone traffic.
That, however, is what may have occurred at Bush's unprecedented direction since the early post-9/11 days, when a compliant legal staff in the White House and Justice Department helped justify warrantless eavesdropping by the National Security Agency.
Before its August recess, Congress approved stopgap surveillance rules that seriously undercut FISA's basic constitutional privacy protections. Those rules expire in about two months. The House has approved a FISA revision that should restore some judicial oversight of domestic spying. Competing proposals are before the Senate.
A key sticking point is the Bush demand that Congress grant legal immunity to the major telephone companies that likely cooperated with the NSA's warrantless spying.
It's dangerous public policy to subject companies to liability for having cooperated in good faith to a request from the White House for assistance in a time of crisis. But the phone companies' bid for absolute immunity appears to be a case of overkill.
Immunity would shield the Bush administration from having to justify its end-run around the FISA law. It would leave unanswered the underlying question of whether the telecom companies should have stepped aside when federal agents showed up to tap into their networks without warrants.
If Congress regards the telecom firms as unwitting pawns in domestic spying, then it can enact caps on potential legal damages against the companies. That would be fair, while giving the courts a chance to get to the bottom of how millions of Americans' privacy rights were compromised.