With a challenge to the apparent Democratic nominee: Mr. Bush v. the Bill of Rights
In the waning months of his tenure, President Bush and his allies are once again trying to scare Congress into expanding the president’s powers to spy on Americans without a court order.
[...] Lawsuits against those companies are the best hope of finding out the extent of Mr. Bush’s lawless spying. But Democratic leaders in Congress are reported to have agreed to a phony compromise drafted by Senator Christopher Bond, the Republican vice chairman of the Intelligence Committee.
Under the so-called compromise, the question of immunity would be decided by a federal district court — a concession by Mr. Bond, who originally wanted the FISA court, which meets in secret and is unsuited to the task, to decide. What is unacceptable, though, is that the district court would be instructed to decide based solely on whether the Bush administration certifies that the companies were told the spying was legal. If the aim is to allow a court hearing on the president’s spying, the lawsuits should be allowed to proceed — and the courts should be able to resolve them the way they resolve every other case. Republicans, who complain about judges making laws from the bench, should not be making judicial decisions from Capitol Hill.
[...] There are clear differences between the candidates. Senator John McCain, who is sounding more like Mr. Bush every day, believes the president has the power to eavesdrop on Americans without a warrant.
Senator Barack Obama opposes immunity and voted against the temporary expansion of FISA. We hope he will show strong leadership this time. He might even take time off from the campaign to vote against the disturbing deal brewing in the back rooms of Congress.
I know what I hope will happen, but I also know what I expect will happen, and they aren’t the same thing. I seriously doubt that Obama, despite being essentially the leader of the Democratic Party, is going to expend political capital on this — and that failure is going to make it difficult to believe that there really is any difference between those who push poor policies and those who bemoan poor policy but are complicit in its passage and implementation anyway. In fact, only one of these is actually an honest approach, and that’s going to be increasingly problematic for the Democratic Party if they don’t get out of this pattern.