Jacob Sullum

That was how Bush treated the Foreign Intelligence Surveillance Act. Until Congress amended it last August, FISA required the government to obtain a warrant to monitor communications involving people in the United States. Yet, for years, Bush secretly authorized the National Security Agency to conduct such surveillance without court approval.

When asked about this program, Mukasey referred repeatedly to the "gap between where FISA left off and where the Constitution permitted the president to act." He cited Carter administration Attorney General Griffin Bell's statement that FISA "does not take away the power of the president under the Constitution."

Did Mukasey mean that the Constitution authorized the president to ignore FISA's warrant requirements, as his predecessor, Alberto Gonzales, argued? No matter how many times he was asked, Mukasey wouldn't say, instead retreating to the lame argument that Congress, without realizing it, amended FISA by authorizing the use of military force against the perpetrators of the Sept. 11 attacks.

Even as the administration continues to insist that the NSA's warrantless surveillance was legal, it is pressing Congress to give the telecommunications companies that cooperated with the program retroactive legal immunity. Immunity for what? For assisting the government with its perfectly lawful surveillance?

Clearly, Bush wants to give these companies a free pass for breaking the law in the name of national security. They shouldn't get one, and neither should he.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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