Watching the president on Friday in the Rose Garden as he threatened to quit interrogating terrorists if Congress did not approve his detainee bill, we were struck by how often he acts as though there were not two sides to a debate. We have lost count of the number of times he has said Americans have to choose between protecting the nation precisely the way he wants, and not protecting it at all.
On Friday, President Bush posed a choice between ignoring the law on wiretaps, and simply not keeping tabs on terrorists. Then he said the United States could rewrite the Geneva Conventions, or just stop questioning terrorists. To some degree, he is following a script for the elections: terrify Americans into voting Republican. But behind that seems to be a deeply seated conviction that under his leadership, America is right and does not need the discipline of rules. He does not seem to understand that the rules are what makes this nation as good as it can be.
The debate over prisoners is not about whether some field agent can dunk Osama bin Laden’s head to learn the location of the ticking bomb, as one senator suggested last week. It is about whether the United States can confront terrorism without shredding our democratic heritage. This nation is built on the notion that the rules restrain our behavior, because we know we’re fallible. Just look at the hundreds of men in Guantánamo Bay, many guilty of nothing, facing unending detention because Mr. Bush did not want to follow the rules after 9/11.
Now Mr. Bush insists that in cleaning up his mess, Congress should exempt C.I.A. interrogators from the Geneva Conventions. “The bottom line is simple: If Congress passes a law that does not clarify the rules — if they do not do that — the program’s not going forward,” Mr. Bush said. But clarity is not the issue. The Geneva Conventions are clear and provide ample room for interrogating terrorists. Similarly, in the debate over eavesdropping on terrorists’ conversations, Mr. Bush says that if he has to get a warrant, he can’t do it at all. Actually, he has ample authority to eavesdrop on terrorists, under the very law he is breaking, the 1978 Foreign Intelligence Surveillance Act.
Senator Dianne Feinstein, a Democrat who is on the Senate Intelligence Committee, says that after being briefed on the wiretapping, she concluded that “this surveillance can be done, without sacrifice to our national security,” within the law. She has introduced a bill to affirm FISA’s control over all wiretapping. It would also give the authorities far more flexibility to listen first and get a warrant later when it’s really urgent. But the only bill Mr. Bush wants is a co-production of Vice President Dick Cheney and Arlen Specter, chairman of the Senate Judiciary Committee, that gives the president more room to ignore FISA and chokes off any court challenges.
The best thing Congress could do for America right now is to drop this issue and let the courts decide the matter. Mr. Bush can’t claim urgency; it’s not as though he has stopped the wiretapping.
Legislation is needed on the prisoner issue, although not as urgently as Mr. Bush says. Three Republican senators, John McCain, John Warner, and Lindsey Graham, have a bill that is far better than the White House version but it, too, has some huge flaws that will take time to fix. It will be hard in an election year, but if the Republicans stand firm, and Democrats insist on the needed changes, they might just require Mr. Bush to recognize that he is subject to the same restraints that applied to every other president of this nation of laws.