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Shayana Kadidal Headshot

Spying Comes Home to Roost

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Sometimes it's hard to decide what is more disturbing: President Bush's illegal conduct or the reckless complicity of his enablers in Congress.

Take domestic spying. Bush authorized the illegal NSA program to spy on Americans; he hid the program and lied about it; and when finally exposed, his subordinates basically admitted the crime but claimed it was not a crime anymore. Meanwhile, most members of Congress were never even aware of Bush's domestic spying program. Yet after learning a few alleged details about it in a New York Times story in December, most members of Congress rushed to defend illegal spying. Without briefings from the NSA -- let alone independent investigations -- Congress abdicated its oversight duties and gave the President cover to break the law with impunity. A few Republican apologists went even further, introducing legislation to retroactively legalize warrantless domestic spying.

The leader of the apologist pack is Senator Mike DeWine, an Ohio Republican who introduced a bill to allow a lot more warrantless domestic spying with a lot less oversight. The Washington Post headline about the legislation says it all: "Bill Would Allow Warrantless Spying." Instead of requiring the President to follow the Constitution, the DeWine bill would simply create new, partisan subcommittees that would receive two reports a year from the administration about the program. (The bill would also allow the NSA to spy on Americans without a warrant for up to 45 days.) Senator Pat Roberts has discussed similar toothless oversight plans, which a New York Times editorial recently slammed:

"It's breathtakingly cynical. Faced with a president who is almost certainly breaking the law, the Senate sets up a panel to watch him do it and calls that control. This new Senate plan is being presented as a way to increase the supervision of intelligence gathering while giving the spies needed flexibility. But it does no such thing."

As one of the lead attorneys in a federal case suing Bush for illegal spying, Center for Constitutional Rights v. Bush, I find such Congressional complicity in illegal spying particularly concerning. Our case would require a judge to rule on the legality of warrantless spying on Americans (among other things), but Sen. DeWine's proposal could preempt judicial review by changing the law. Sen. DeWine is not alone, of course. Today the Boston Globe reports that Vice President Cheney is also trying to evade substantive review of the NSA program in his negotiations with Sen. Arlen Specter. Warrantless surveillance -- that is, electronic surveillance without review of some kind by a disinterested judge, either before or immediately after the wiretap is put in place -- is, with very limited exceptions, currently illegal and punishable as a felony. The DeWine bill would legalize warrantless surveillance of international calls and emails whenever the president decides going to the court established by FISA is too much trouble. Periodic after-the-fact briefings by the President to small committees of Congressional leaders would replace judicial oversight entirely.

Here is how Terry Gilbert, a prominent civil rights attorney and constituent of Sen. DeWine in Cleveland, explained it: "It is illegal and wrong for the federal government to spy on Americans without warrants and judicial oversight. Senator DeWine's legislation would try to allow more warrantless spying on Americans, and I think as people learn the facts, they will oppose his proposal."

To get the facts out, this week our organization launched a national education campaign about the DeWine proposal for more warrantless spying on Americans. Today we ran an ad in the Cincinnati Enquirer urging people to oppose warrantless spying by the federal government. A similar ad is also running in Ohio and national blogs.

DeWine Print Ad.jpg

The amazing part is that all the funding for the educational campaign came from grassroots donations -- from our email list and an earlier post I wrote about it.

As Cincinnati activist David P. Little told CCR, "I wholeheartedly support this education campaign so that the American people can decide whether government should be trusted with a blank check to spy on all of us. I oppose DeWine's proposed massive intrusion into our private lives without safeguards or accountability." And thousands of people have also written Congress to oppose the DeWine proposal and demand an end to illegal spying, and we are encouraging everyone to do so today. This is a crucial time because Cheney is trying to negotiate a spy deal with Congress.

In the end, the impulse of so many members of Congress to paper over President Bush's illegal spying shows exactly why we need independent oversight by the courts. President Bush is violating our constitutional rights, and congressional apologists would rather change the law than confront the lawbreaker. That is wrong, but with more action like this, we can fight back and make it right.