This article originally provided by The New York Times

December 21, 2005

The Fog of False Choices

After five years, we're used to President Bush throwing up false choices to defend his policies. Americans were told, after all, that there was a choice between invading Iraq and risking a terrorist nuclear attack. So it was not a surprise that Mr. Bush's Oval Office speech Sunday night and his news conference yesterday were thick with Orwellian constructions: the policy debate on Iraq is between those who support Mr. Bush and those who want to pull out right now, today; fighting terrorists in Iraq means we're not fighting them here.

But none of these phony choices were as absurd as the one Mr. Bush posed to justify his secret program of spying on Americans: save lives or follow the law.

Mr. Bush said he thwarted terrorist plots by allowing the National Security Agency to monitor Americans' international communications without a warrant. We don't know if that is true because the administration reverts to top-secret mode when pressed for details. But we can reach a conclusion about Mr. Bush's assertion that obeying a 27-year-old law prevents swift and decisive action in a high-tech era. It's a myth.

The 1978 law that regulates spying on Americans (remember Richard Nixon's enemies lists?) does require a warrant to conduct that sort of surveillance. It also created a special court that is capable of responding within hours to warrant requests. If that is not fast enough, the attorney general may authorize wiretaps and then seek a warrant within 72 hours.

Mr. Bush and Attorney General Alberto Gonzales offered a whole bag of logical pretzels yesterday to justify flouting this law. Most bizarre was the assertion that Congress authorized the surveillance of American citizens when it approved the use of "all necessary and appropriate force" by the United States military to punish those responsible for the 9/11 attacks or who aided or harbored the terrorists. This came as a surprise to lawmakers, who thought they were voting for the invasion of Afghanistan and the capture of Osama bin Laden.

This administration has a long record of expanding presidential powers in dangerous ways; the indefinite detention of "unlawful enemy combatants" comes to mind. So assurances that surveillance targets are carefully selected with reasonable cause don't comfort. In a democracy ruled by laws, investigators identify suspects and prosecutors obtain warrants for searches by showing reasonable cause to a judge, who decides if legal tests were met.

Chillingly, this is not the only time we've heard of this administration using terrorism as an excuse to spy on Americans. NBC News recently discovered a Pentagon database of 1,500 "suspicious incidents" that included a Quaker meeting to plan an antiwar rally. And Eric Lichtblau writes in today's Times that F.B.I. counterterrorism squads have conducted numerous surveillance operations since Sept. 11, 2001, on groups like People for the Ethical Treatment of Animals, Greenpeace and the Catholic Workers group.

Mr. Bush says Congress gave him the power to spy on Americans. Fine, then Congress can just take it back.