Some Republicans say they've reached an "accord" to allow more warrantless spying on Americans -- but no G.O.P. backroom deals can change the NSA Program's illegality.
Even though many of the details of this proposed legislation have not been disclosed, it's obvious that Congress should thoroughly investigate the existing illegal NSA Program before it considers allowing more warrantless surveillance. As one of the lead attorneys in a federal case suing Bush for illegal spying, Center for Constitutional Rights v. Bush, I am particularly concerned about this terrible proposal.
The deal announced Tuesday appears to ignore the President's illegal program -- instead focusing on future surveillance. According to news reports, the idea is to authorize warrantless wiretapping for 45 days and create a new, partisan committee to review additional warrantless surveillance. (The existing intelligence committees have traditionally been bipartisan.) These periodic reviews could grant extensions allowing the warrantless wiretapping to go on indefinitely.
This is a patently absurd response to the administration's refusal to give Congress more information about the existing NSA program. It's a mystery why moderate Republican senators think this will rein in the President, since the Administration had refused to report its warrantless surveillance to the appropriate Congressional leaders for the past four years. What's worse, such legislation might be used to retroactively defend the illegal NSA Program. Congress has still failed to extract even the most basic information from the Administration about the current illegal spy program. This is hardly the time to start loosening the law.
Even Republican Judiciary Committee Chairman Arlen Specter admitted that he still doesn't know how the NSA Program works. In a letter this week, he wrote that "the wiretapping flatly violates the Foreign Intelligence Surveillance Act" and he offered this disturbing admission: "I don't know what the program is, and the administration will not tell us."
Congress cannot lead the country out of this mess with a blindfold on.
We will continue to challenge the illegal domestic spying in court. Yet it is also important that Congress does not pass more legislation on domestic spying until it holds officials who broke the law accountable and fully investigates the NSA Program. A legitimate inquiry cannot be toothless. President Bush broke the law and Congress must consider every serious remedy, including censure and impeachment -- as we have urged Americans to tell their representatives.
The courts are already set to rule on the question of whether the Program violated the existing law and, more importantly, the Constitution. Congress must consider what it can do to force the President to come clean on the facts before it decides to tinker with the law.