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Surgery Before Diagnosis

By American Progress Action Fund

In an attempt to head off a congressional investigation into President Bush's illegal domestic spying program, Senate Intelligence Committee Chairman Pat Roberts (R-KS) announced yesterday that he had reached an agreement with the White House to "fix" the National Security Agency (NSA) wiretapping program. Roberts did not give any specifics about the agreement. Meanwhile, on the other side of the Capitol, a dispute broke out among conservative members of the House Intelligence Committee over the scope of their own inquiry into the surveillance program, with Chairman Peter Hoekstra (R-MI) pushing for a more limited inquiry. The developments yesterday indicate the success of Vice President Dick Cheney's closed-door cajoling of lawmakers in his own party, having convinced them for the time being not to launch a full-scale investigation into the administration's intelligence-gathering activities. Sen. John Rockefeller (D-WV), ranking member of the intelligence panel, explained the meaning of the most recent developments. "It is apparent to me that the White House has applied heavy pressure in recent weeks to prevent the committee from doing its job. Although some members of this committee indicate they need more time to decide on what action to take, I believe this is another stalling tactic."

A POOR SOLUTION: Although Roberts could give few details about what possible changes the White House will agree to, it appears that a proposal from Sen. Mike DeWine (R-OH) is gaining steam. DeWine is "drafting legislation that would exempt the NSA program from the 1978 Foreign Intelligence Surveillance Act." White House Press Secretary Scott McClellan suggested yesterday it was a "good idea." The legislation, which would explicitly authorize NSA wiretapping without court warrants, "is unlikely to satisfy other critics of the program, including some Republicans, who say it must be brought within the scope of the intelligence court." The administration has argued that FISA doesn't apply to its program, and DeWine simply wants to embed that viewpoint into law. By doing so, the DeWine legislation would grant authority to the administration to continue to conduct its program without any of FISA's legal checks or safeguards. "To simply exclude communications from the coverage of FISA and allow secret wiretapping without a warrant...would be a clear violation of the 4th Amendment," said Kate Martin, director of national security studies at George Washington University. Specter urged that a determination first needs to be made on the constitutionality of the program. "[W]indow dressing oversight will not be sufficient," he said. Rockefeller noted that fixes to the program cannot be voted upon if lawmakers "fundamentally do not know what they are authorizing or restricting."

ROBERTS ONLY KNOWS WHEN TO FOLD 'EM: The Senate Intelligence panel met yesterday ostensibly to "vote on whether or not to investigate the Administration's NSA domestic wiretapping program for potential illegalities." The panel was to take a vote on Rockefeller's comprehensive proposal to authorize committee investigation. But after a two-hour closed-door session, Roberts "said the committee adjourned without voting." Two conservative members of the committee, Sens. Olympia Snowe (R-ME) and Chuck Hagel (R-NE), had indicated they had concerns about Bush's warrantless wiretapping program, but at day's end, they chose not to break ranks with the White House. After having already impeded an investigation into the administration's use of pre-war Iraq intelligence and having failed to take any action on prisoner abuse allegations, Roberts proved yet again that he is willing to "do the president's dirty work." "For the past three years, the Senate intelligence committee has avoided carrying out its oversight of our nation's intelligence programs whenever the White House becomes uncomfortable with the questions being asked," Rockefeller told reporters. "The very independence of this committee is called into question."

BUSH ADMINISTRATION CONTINUES TO STONEWALL: Senate Judiciary Committee Chairman Arlen Specter (R-PA) has indicated that he wants to proceed with his inquiry into the legal basis of the wiretapping program, but the Bush administration is trying to put a stop to that as well. "The Justice Department strongly discouraged him from calling former Attorney General John Ashcroft and his deputy, James Comey, to testify about the surveillance program." Comey, while serving in the Bush administration, had indicated his opposition to the program, and Ashcroft too had balked at approving it until a compromise was reached in 2004. Assistant Attorney General William Moschella said in a letter to Specter, "In light of their inability to discuss such confidential information, along with the fact that the attorney general has already provided the executive branch position on the legal authority for the program, we do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information to the committee."

IN TROUBLE WITH THE LAW: "There was one setback, however, to the administration's efforts to keep tight wraps on the NSA operation. Yesterday, a federal judge ordered the Justice Department to turn over its internal documents and legal opinions about the program within 20 days -- or explain its reasons for refusing." Federal Judge Harry Kennedy issued his ruling in response to a Freedom of Information Act lawsuit filed by the Electronic Privacy Information Center. "President Bush has invited meaningful debate about the warrantless surveillance program," Kennedy wrote, alluding to comments Bush has made at news conferences and speeches acknowledging public disagreement about domestic spying. "That can only occur if DOJ processes its requests in a timely fashion and releases the information sought." In another development, the New York Times writes that "lawyers for a Kentucky man prepared to bring a federal civil rights lawsuit on Friday against President Bush to have the surveillance declared illegal and unconstitutional."



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