Senators Snowe & Hagel join the Bush cover-up, while Senator Feingold calls for censure, and the Center for Constitutional Rights & the ACLU seek legal rulings that Bush’s secret spying was illegal and unconstitutional

Shortly after news leaked out about the Bush Administration’s secret, illegal spying, Senator Olympia Snow (R-ME)—a member of the Senate Select Intelligence Committee (SSIC)—spoke out strongly for “Congressional examination.”

“I believe the Congress – as a coequal branch of government – must immediately and expeditiously review the use of this practice,” said Snowe, in a statement on December 21, accompanying a letter sent to the leadership of the Senate Intelligence and Judiciary committees, calling for immediate hearings.

But on March 7, she folded like a cheap suit, and joined the cover-up, along with fellow Republican Chuck Hagel, of Nebraska, another committee member who also signed the letter. Democrats Dianne Feinstein (CA), Carl Levin (MI) and Ron Wyden (OR) who had co-signed the letter with Hagel and Snowe were hung out to dry.

The committee’s Democratic vice chair, Sen. John D. Rockefeller IV (D-W.Va.), said the outcome pushed the panel "further into irrelevancy."

"The committee is, to put it bluntly, basically under the control of the White House," Rockefeller said.

As soon as the cover-up was pulled off, however, it began to fall apart. Two days later, the Center for Constitutional Rights (CCR) filed suit, seeking summary judgment that Bush spying program violated two federal statutes, separation of powers, and the First and Fourth Amendments. The ACLU (American Civil Liberties Union) has a similar suit as well.

Then, on national TV, Sunday morning, Senator Russ Feingold, who sits on the Judiciary Committee, announced he was introducing a resolution of censure.

“The President must be held accountable for authorizing a program that clearly violates the law and then misleading the country about its existence and its legality,” Feingold said in a press release. “The President’s actions, as well as his misleading statements to both Congress and the public about the program, demand a serious response. If Congress does not censure the President, we will be tacitly condoning his actions, and undermining both the separation of powers and the rule of law.”

Censure would not preclude further congressional investigation, but neither does it require it.

The ACLU had a similar message. “In America, no one is above the law, not even the president,” said ACLU Executive Director Anthony Romero. “The president's allies in Congress are preparing to cover up his illegal program, while others in Congress are standing on the sidelines. When the President breaks the law, Congress should not be giving him a get-out-of-jail free card,” Romero added.

Just before Christmas, Snowe and Hagel sounded almost as resolute.

“We write to express our profound concern about recent revelations that the United States Government may have engaged in domestic electronic surveillance without appropriate legal authority. These allegations, which the President, at least in part, confirmed this weekend require immediate inquiry and action by the Senate,” the five senators wrote at the time. But that was before party pressure was brought to bear on Snowe and Hagel.

CCR filed a motion for summary judgment, claiming that none of the basic facts were in dispute. Although specific details are still hidden, CCR staff attorney Shayana Kadidal pointed out that the Administration itself had made categorical statements about what it was doing that clearly violate the law.

“If we can get a quick ruling, then it can give cover to Members of Congress who think it’s wrong, but there’s too much risk to opposing the surveillance powers of the President,” Kadidal told Random Lengths.

“It would settle the legal question, it would say to the American public it’s not legal. That would go out the window,” Kadidal explained.

Federal law clearly says that FISA (the Foreign Intelligence Surveillance Act) is the exclusive law regulating warrant less wiretaps. It provides for five years in jail if its provisions are violated. But on January 26, for example, Bush said,

“And Fish’s still an important tool. It's an important tool, and we still use that tool. But, also––and I looked. I said, 'Look, is it possible to conduct this program under the old law?' And people said, 'It doesn't work in order to be able do the job we expect to us do.' And so, that's why I made the decision I made. And, you know, 'circumventing' is a loaded word. And I refuse to accept it, because I believe what I'm doing is legally right.”

However, CCR’s brief notes that, “Congress expressly provided that FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigations) are the “exclusive means by which electronic surveillance … may be conducted,” citing the exact language of 18 U.S.C. § 2511(2)(f).

Bush’s defenders have presented a mish-mash of arguments that the President has either inherent Constitutional powers, as commander-in-chief, or war powers, deriving from the authorization of military force (AUMF) passed after 9/11. But FISA limits Presidential power and has never been found unconstitutional. Furthermore, it expressly provides for a 15-day suspension after a declaration of war—fifteen days and no more, clearly limiting the expansion of Presidential war powers, and giving time for new legislation to be passed, if it is deemed necessary—as numerous critics have pointed out.

Indeed, Bush asked for no such authority, yet seemed perfectly content when signing the original Patriot Act, as he said, “Under the new law, officials may conduct court-ordered surveillance of all modern forms of communication used by terrorists.” [Emphasis added.]

[Bush clearly could have gotten FISA amended to meet new needs if he had wanted to. The fact that he didn’t leads expert analysts, such as Scott Armstrong of the Information Trust, to conclude that he authorized surveillance and data mining on a scale so massive that Congress would have balked.] pull quote

Armstrong believes the NSA is analyzing data collected by a wide range of outside analysts and private contractors. “The labs that do this are compartmentalized labs. They probably have no idea what they’re doing, and how its used,” he said. Document tracing on the internet might be done by one lab, decryption analysis by another one, and so forth, Armstrong explained. Even analysts with the NSA putting the pieces together might not realize they were part of a warrant less surveillance program, he pointed out.

But the illegality of the program can be shown without knowing such details, CCR argues. And once a court affirms the illegality, other avenues may open up, breaking through the current Congressional cover-up.

Three weeks ago, when SSIC Chair John Roberts postponed a vote on holding hearings, his hometown paper, the Wichita Eagle, blasted him in an editorial.

“Roberts seems prepared to write the Bush team a series of blank checks to conduct the war on terror, even to the point of ignoring policy mistakes and possible violations of law. That's not oversight -- it's looking the other way.”

The Friday before the vote, when Snowe and Hagel seemed determined to keep their word, Senate Majority Leader Bill Frist (R-TN) backed Roberts up with a letter to Minority Leader Harry Reid (D-NV), claiming that the proposed investigation represented a politicization of the oversight process—even though it could only proceed if at least one Republican supported it. Frist went on to threaten to destroy the committee’s unique rule structure, which grants much more power to the minority than other committees have. But since that would have no effect on the proposed investigation, the real, unspoken threat was clearly to remove Hagel and Snowe (something Frist could do unilaterally) if they did not play ball. Reid refused to be intimidated, but Snowe and Hagel caved in four days later.

The result was not surprising to Kadidal. “It would be great if Congress unearthed some facts about this,” but, “It’s not the kind of thing we were really banking on,” Kadidal said. After all, during Watergate, “it took criminal indictments” before Congress got traction.

Bush’s rationale is further eroded by the way in which it “evolved” over time, much as a criminal defense strategy evolves. But perhaps most damaging is the fact that Bush’s legal advisors avoided consulting with an acknowledged expert, David Kris (Associate Deputy Attorney General from 2000-2003), whose objections would have almost certainly doomed the program, had he been consulted. This reflects a similar pattern of ignoring and/or evading expert analysis that was seen in the manipulation of intelligence before the Iraq war.

“If someone deliberately fails to get expert legal advice because that advice would reveal the illegality of what’s being planned or done, then a strong inference of guilt arises,” said Stephen Rohde, a constitutional lawyer and former President of the Southern California ACLU.

“While the President has cherry-picked information before, he cannot do the same with the laws of our land,” Feingold announced Monday, March 13. “Censuring the President is not something that should be taken lightly. But the President has broken the law and there needs to be action and accountability.”

Editors Note: Senators Snowe and Hagel’s offices were contacted repeatedly for this story. Their press offices were asked if the President violated FISA without informing them, what’s to stop him from breaking the new law they are touting. Neither Senator had the sense of responsibility to respond.