Big Brother Hasn’t Won

If you thought the wiretapping controversy ended last summer, when Congress blessed the Bush administration’s warrantless-wiretapping program by passing a new surveillance law that greatly enhanced the powers of the National Security Agency, think again. The legacy of the illegal operation represents a serious problem for the Obama administration.

After a contentious hearing this month on the most controversial aspect of the new law — a blanket grant of immunity to the telecom giants like AT&T that secretly permitted the N.S.A. to siphon off their customers’ communications — a federal judge in San Francisco must decide whether Congress has the authority to bestow absolution on private companies that appear to have violated the law. One paradox is that Bush administration lawyers have claimed from the outset that the surveillance program was entirely legal, yet they remain desperate to prevent any court from testing that claim. Instead, they are in the odd position of advocating immunity for something that they insist is not a crime.

Another paradox, which Barack Obama surely appreciates, is that the real issue underlying the immunity debate is not whether the telecoms should pay damages; it is whether lawsuits against the companies can be used to answer a question that Congress and the press have not: Just how bad was the N.S.A. program, after all?

Mr. Obama says he does not want his first term to become bogged down in any sort of “partisan witch hunt.” Indeed, the sheer extent of executive lawlessness in Washington over the past eight years has left so many wrongs to right that, in the interests of triage, the new president may choose to let bygones be bygones where wiretapping is concerned.

But that would be a mistake. From 2001 to 2007, the United States government violated one of the signature prohibitions of the post-Watergate era by turning its formidable eavesdropping apparatus on its own citizens. The new law last summer resolved matters only by moving the goalpost, so that many of the N.S.A.’s more questionable activities simply became legal. But major questions remain about the legal grounds used to justify the program, and about how many innocent Americans were ensnared.

The Obama administration cannot enact the kind of thorough course correction on domestic surveillance that is needed without understanding how far off course the intelligence community got in the first place. Mr. Obama, who initially vowed to filibuster the immunity provision but, under pressure in the race against John McCain, backed down and reluctantly supported it, has committed “to have my attorney general conduct a comprehensive review” of N.S.A. surveillance.

That is a promising first step, but it is not enough. Nor is the prospect of reports due next summer from the inspectors general of the N.S.A. and the Justice Department. The good news for Mr. Obama, politically, is that the executive branch should not lead the charge in investigating the wiretapping. Congress should.

Provided that the Obama administration is willing to cooperate rather than stonewall in the Bush fashion, Congress can get to the bottom of the abuses while simultaneously reasserting itself as a coequal branch of government. To the extent possible, the hearings should be public, and if necessary, investigators should grant immunity to witnesses in exchange for candid testimony; this is no witch hunt, but an effort to establish an accurate historical record.

What details can actually be aired in public without violating national security? The number of Americans listened to and the broad contours of the program, for a start. For example, in March 2004, Attorney General John Ashcroft threatened to resign over the program, backing down only when it was adjusted. What transgression was so appalling that it made John Ashcroft look like a civil libertarian? We still don’t know.

Even the legal opinions governing the program are still squirreled away in a safe in Vice President Dick Cheney’s office. In recent months, the Senate Judiciary Committee and a Washington district judge have ordered them turned over, and the next attorney general should do so immediately.

Without some baseline understanding of what went wrong — and how wrong — in recent years, and without the establishment of some bright line rules of the road, it would be naïve to think that there won’t be future abuses. For aggressive intelligence agencies, legal ambiguity is an invitation to excess.

Wiretapping can sometimes seem forbiddingly complex, and many Americans just aren’t concerned that the government might monitor their calls. But what is at stake here is not mere personal privacy, but the bedrock American principles of separation of powers and the rule of law.

Jack Goldsmith, a former top Bush administration lawyer, pronounced the wiretapping program “the biggest legal mess” he had seen in his life. That sort of mess cannot simply be swept under the rug; it must be cleared up.

Patrick Radden Keefe, a fellow at the Century Foundation and the author of Chatter: Uncovering the Echelon Surveillance Network and the Secret World of Global Eavesdropping.