This week Americans face a profound choice–and it has nothing to do with the presidential election.

The Senate is about to vote on legislation, favored by President Bush, to strip American courts of their authority to supervise massive government surveillance. The Senate intelligence bill sidelines the US intelligence court, established by a 1978 law, and grants Bush new spying powers. Under the proposal, the Administration merely needs to “certify” it will not abuse them.

Of course, Bush already has abused his spying powers. He conceded in 2005 that the Administration conducted massive surveillance without the warrants required by law. A judge resigned in protest; Bush’s former attorney general, his deputy attorney general and the FBI director also threatened to resign; and one federal court found the warrantless spying illegal.

Yet the Senate’s legislation fails to confront that history. Instead, Democratic leaders are poised to validate Bush’s illegal surveillance–giving even more ground than the Republican Congress ever did. Worse, the current bill would cover up Bush’s abuse by granting retroactive amnesty to telecommunications companies accused of breaking the law, even if the people involved acted knowingly or maliciously.

The retroactive amnesty proposal is so extreme, in fact, it is hard to fathom how Congress, as a law-making body, can advance this blatantly lawless approach. This amnesty makes presidential pardons look tough. While pardons save convicted felons from jail, a controversial tack, they still require a full public trial. Retroactive amnesty just squashes entire cases. No investigation. No judicial fact-finding. And the public gets no information about these alleged crimes at the highest levels of American government and business. What if the spying was abused to distort elections or pad corporate profits? The bill would keep the public in the dark.

The intelligence bill is not just unpalatable; it is indefensible on the facts. That may be why the Senate is pushing the bill now, during the distractions of the busiest week in presidential politics. (The ACLU, MoveOn and liberal bloggers have also been fighting the bill, causing some delays and fortifying efforts by Senators Feingold and Dodd to amend it this week.) The Administration has also savaged the facts to bolster a weak hand. Bush officials have mischaracterized the bill, impugned the security credentials of their opponents and threatened to veto a temporary version so they could blame any ensuing intelligence problems on Democrats.

Bush’s bad faith nearly derailed everything, because his veto threat enraged the bill’s chief sponsor, Senator Jay Rockefeller, a Bush ally on intelligence issues. Last week, in a showdown on the Senate floor, the normally mild-mannered Rockefeller even accused the White House of “political terrorism.” Then Bush buckled, signing a temporary measure despite his veto threats, while reiterating his demand for amnesty in a final bill. Jacob Sullum, a conservative writer for the libertarian Reason magazine, described it as “the latest in a series of Bush administration reversals and self-contradictions” on intelligence legislation. “If the president and his men can’t even get their public story about warrantless surveillance straight, how can we trust them to secretly exercise the unilateral powers they are seeking?” he asked.

We can’t. And it’s not just Bush, who has little time to exercise these unfettered powers, anyway. Spying abuse has bipartisan roots, from Democratic administrations infiltrating the anti-war movement to Nixon taping everyone from John Kerry to his own aides.

Surveillance is only more crucial and ubiquitous now, in an asymmetric war with elusive non-state actors. The core issue is whether Congress will ensure that our government conducts surveillance the American way, with oversight by American courts and public accountability for anyone who would exploit security concerns for illicit ends.

Proponents of warrantless surveillance like to say that “you have no problem if you have nothing to hide.” Put aside the unconstitutional premise about individual rights, though, and that dare works in the other direction. Congress can confront Bush with a similar imperative: court oversight is no problem for you or the telecommunication companies, as long as you have nothing to hide.