THE BLOG
02/05/2007 01:13 pm ET Updated May 25, 2011

How Congress Can Force Spying Back Within the Law

AFTER illegally spying on Americans without the required warrants for several years, the Bush administration is claiming a sudden change of heart.

Attorney General Alberto Gonzales recently announced that the administration's domestic-spying program will stop bypassing judicial oversight. Instead, it will submit domestic surveillance to review by a federal intelligence court, as required by law.

But before anyone celebrates the "good news" of an attorney general saying he will stop breaking the law, Congress must confront the administration's record of illegal spying and ensure that surveillance is truly back within the rule of law.

This is a big challenge because the administration spent the last six years undermining the traditional tools Congress uses to supervise intelligence by ignoring the law, stalling court oversight and declaring that warrantless spying would continue.

For Congress, that means there is little point in passing another law to restate rules that the administration is openly defying. Public hearings would also be ineffective for reforming or exposing the classified program. So what can the new Congress do?

The only way to bring spying back under the rule of law is for Congress to strengthen the branch of government that makes the law work: the courts.

Unfortunately, the courts, with their traditional deference to the political branches, have been slow to tackle this problem.

There are more than 70 spying lawsuits pending against the National Security Agency or phone companies, but few results so far. One federal district court did rule on the NSA program in August, finding it unconstitutional and issuing an injunction to ban it. But the administration has aggressively appealed and stalled all these cases - and the injunction was stayed on appeal.

Several other leading cases were transferred at the 11th hour into a new court, wiping out almost a year of work. (Justice Department officials claim the cases are "moot" because of the attorney general's announcement. But even if warrantless spying has ceased, plaintiffs are suing for harm caused by past conduct.)

At this rate, the domestic spying program may not even reach the Supreme Court before President Bush leaves office. That's probably no accident.

Yet there is much Congress can do to ensure swift and meaningful judicial oversight. First, there is precedent for providing fast-track review for important cases. Congress can require that the pending cases get accelerated review by either the appeals courts or the Supreme Court. Although the Supreme Court usually gets to choose whether to hear a case, Congress can make the right of appeal mandatory.

Of all the lawsuits, only one offers evidence that the NSA listened to the plaintiffs' calls. But that's because the government has tried to classify and conceal all potential evidence, and then claim that because plaintiffs do not have proof that their own calls were illegally intercepted, the suits are "frivolous" and should be dismissed.

But many challengers reasonably argue that they were harmed by being forced to change their behavior by the news of the NSA's warrantless spying program. (Government whistleblowers won't call reporters, for example, once they know the government is listening to calls with no court oversight.)

Congress can address this problem by making it clear that Americans who were compelled to change their activities because of past illegal surveillance have standing to sue. Guaranteeing a day in court for such challenges would ensure that the NSA doesn't get off the hook on a technicality.

Finally, the new Congress must grapple with the administration's expansive assertions of the "state secrets privilege" to pre-empt legal challenges.

Most spying challengers had to spend months fighting the administration's demand that every case be dismissed without any court proceedings because the program was supposedly "too secret" for judges to consider - even in a closed setting. At least one court has already dismissed a challenge to the NSA program on those grounds.

But today the courts are well-equipped to hear cases with classified information - they routinely do so during criminal trials of former spies. Yet the Bush administration has invoked the secrets claim more than any other administration in history.

To ensure that the courts actually hear the spying cases, Congress should pass a statute curtailing the "state secrets privilege" with precise boundaries to prevent further misuse.

OUR SYSTEM OF checks and balances is supposed to enable each branch of government to assert itself by checking the others. "Ambition must be made to counteract ambition," as James Madison wrote in the Federalist Papers.

Yet to check President Bush's spying, Congress cannot simply repeat itself by passing another wiretapping statute, or hope the administration's latest announcement will end the abuse.

Congress must strive for the higher ambition of protecting the rule of law itself by empowering the courts to swiftly enforce the laws Congress passed - and review the conduct of the president who broke them.

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This op-ed was coauthored by Shayana Kadidal, a staff attorney at the Center for Constitutional Rights, which is challenging the NSA domestic spying program in federal court, and Ari Melber, a former legislative aide in the U.S. Senate. Originally published in The Philadelphia Daily News.