On Tuesday the Senate passed White House backed legislation, giving the nation's spy agencies a free pass to continue snooping on the communications of all Americans without a warrant. Among the Senate bill’s more troubling provisions, is that it gives intelligence agencies, rather than an independent court, the power to authorize surveillance of communications between Americans and people abroad.

Even if innocent Americans are caught up in the snooping, courts would lack adequate authority to cut off the surveillance and take steps to protect their rights. And as if the news couldn’t get worse, the bill does nothing to ensure that the President stay within the bounds of even this law. Amendments to ensure that the President’s powers were cabined off by this legislation failed.

 And finally, the Senate gives the President what he wanted most, immunity for telecommunications carriers who cooperated in the illegal wiretapping scheme.  That move guarantees that some 40 lawsuits filed against cooperating Telco’s disappear, and the details of the illegal spy program never come to light.

In November, the House of Representatives passed a far more balanced version of the bill.  The House version would require courts to approve and supervise any program of surveillance intended to affect the rights of Americans.  Notably, that bill contained no immunity for telecoms. For a brief moment, it appeared that Congress had found its moral compass. But that was then and this is now and the House is now poised to accept the Senate bill, put civil liberties and the rule of law on the back burner, and give President Bush exactly what he demands.

How did an unpopular President--- widely assailed for his secret launch of an illegal, warrantless surveillance program ---pull off such an audacious bait and switch?

With a masterful dose of the politics of fear, writ large, no, larger than life, beginning with the President gathering the press to opine, "At this moment, somewhere in the world terrorists are planning attacks on our country.  Their goal is to be destruction to our shores that will make September 11 pale by comparison." And with that, he announced that he would brook no delay in finishing the bill and would not accept a short term extension of current law.

So see if you can follow this logic. According to the President, Congress will increase the threat of an attack on the homeland if it extends---even for another week--- the very bad temporary FISA law that the President bullied Congress into enacting right before summer recess. Then as now, the President announced that passage of the temporary bill was imperative. He suggested that failure to do so in the few days before Congress recessed would put the country at grave risk. Congress caved and passed a short-term bill to deal with the perceived danger.

Now the President is arguing that the same short-term bill he signed a few months ago cannot be extended, even to give the House and Senate time to work out their differences. And once again, the threat of imminent danger is being paraded about, wearing the same fashionable mask of fear.

What is driving this charade? At bottom, this isn’t about security; it’s about immunity for the Telco’s and cover up for the spymasters who launched the illegal wiretap program. If all the legal challenges become dust in the wind, we never find out the facts of the illegal wiretapping program. 

We never find out who actually pulled the trigger and ordered, knowingly, the illegal program be foisted on the industry.  We never find out what objections, if any, the Telco’s made, and how the Administration persuaded them to ignore clearly defined legal requirements. And we never find out the full scope of the program. How much of our communications have been surveilled? How many have found their way into government databases?

By the time this blog is published, Congress will have done great damage to our 4th Amendment rights and the principle of judicial review. That’s what the American people get when their leaders create an environment where fear and trepidation suck all the oxygen out of the room. Reasoned debate and bipartisan compromise are what legislation of this magnitude deserve, not the strong-arm rhetoric from the White House.

Security and freedom can stand shoulder-to-shoulder, if the politics of fear will get just out of the way.