Senate caves on wiretapping issue, continues erosion of checks and balances

“This Congress doesn't see itself as an independent branch that might include criticizing an incumbent administration. Meaningful oversight, because it might imply criticism, has been pushed off the table altogether.”
--Norman J. Ornstein, American Enterprise Institute, Oct. 5, 2005

The Senate Intelligence Committee voted along party lines yesterday to abdicate its oversight responsibility regarding the Bush administration’s illegal domestic spying program. Despite widespread agreement among legal experts and the nonpartisan Congressional Research Service that the Foreign Intelligence Surveillance Act prohibits such spying, the Intelligence Committee’s Republican members have decided to forego any investigation into President Bush’s decision to violate this law and the resulting domestic spying program.

Instead, the Intelligence Committee majority has suggested legislation that would essentially allow Bush administration officials to continue their wiretapping program without being held accountable for past wrongdoing and with little real protection for the future. Conservative legal analyst Bruce Fein, a former Reagan administration lawyer, says the legislation supported by the Intelligence Committee is unlikely to lead to real oversight: “The White House could just decide not to tell [Congress] everything, and there’s no sanction.”1 But this toothless legislation is as far as the Republican majority on the Intelligence Committee is willing to go, and should committee Democrats try to use their power to force an investigation, Senate Republican Leader Bill Frist has implied he may well change the committee’s structure to block them.

Congress did not always defer so readily to sweeping assertions of presidential power. In 1977, three years after his resignation, President Nixon was asked about his administration’s plan to engage in illegal domestic spying on Americans. He famously asserted, “When the president does it, that means that it is not illegal.” Of course, that’s not true, and in those days, members of Congress were willing to say so. Congress rigorously investigated President Nixon’s crimes and drew up articles of impeachment.

Today’s National Security Agency spying program is in some ways strikingly similar to the Nixon administration’s abuse of power, and President Bush’s defense of his program sounds eerily similar to President Nixon’s 1977 assertion. The Bush administration claims that, so long as he acts in the name of national security, President Bush is exempt from the FISA law. This assertion more closely resembles Louis XIV’s “L’etat, c’est moi (I am the state)” than the system of checks and balances our nation’s founders created. In America, no one, not even the President, is above the law. But today’s Republican-led Congress seems to have little interest in standing up for this principle.

Checks and balances are endangered when Congress refuses to perform its oversight role and hold members of the executive branch accountable for their actions. The Intelligence Committee decision is just the latest in a series of caves to the White House by this Republican-led Congress. Congress caved when it reauthorized the PATRIOT Act, which includes provisions that deprive Americans of civil liberties. Congress has failed to fulfill its oversight responsibility for a wide variety of executive agencies, including the Mine Safety and Health Administration, which has reportedly reduced some fines for safety violations and failed to collect others at all.2 Congress has refused to investigate the Bush administration’s attempt to hide the true estimated cost of its Medicare prescription drug benefit, the White House’s disclosure of covert CIA agent Valerie Plame’s identity, and corporate special interests’ and oil lobbyists’ involvement in Vice President Cheney’s energy policy task force.

It’s no wonder that, according to the Washington Post, “Government scholars and watchdog groups say the decline of congressional oversight in recent years has thrown off kilter the system of checks and balances the Founding Fathers created to keep no one branch of government from becoming too powerful.”iii

People For the American Way members and activists have sent over 80,000 messages calling on the Justice Department to appoint a special prosecutor to investigate the administration’s domestic wiretapping program. Such an appointment is especially important given congressional Republicans’ refusal to embrace accountability and hold the administration responsible for its actions. Unfortunately, with Bush confidante Alberto Gonzales in charge, the Justice Department has refused to appoint such a prosecutor.

America works best when no one party has absolute power. The decision about whether to stand up for checks and balances or submit to broad assertions of presidential power is ultimately up to the American people. Members of Congress should be on notice that if they continue to provide inadequate oversight and refuse to recognize the basic constitutional principle that no one, including the President, is above the law, Americans may choose to express their dissatisfaction at the ballot box.

[1] “GOP senators refuse eavesdropping inquiry.” Boston Globe. March 8, 2006.
[2] “U.S. Is Reducing Safety Penalties for Mine Flaws.” New York Times. March 2, 2006
[3] “Storms Show a System Out of Balance.” The Washington Post. October 5, 2005.

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