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Bush's I-Spy Lie

What's at stake in this week's congressional hearings on spying is nothing less than whether Congress has any meaningful role to play in our system of government.
 
 
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For a list of five suggested questions for Alberto Gonzales, go HERE.

One of the most significant yet ignored aspects of the growing NSA scandal is the way in which the Bush administration deliberately and repeatedly deceived Congress, from 2001 until the administration's eavesdropping program was disclosed in December. Over the course of those four years, the Bush administration led the Congress, on numerous occasions, to falsely believe that it was eavesdropping only with the judicial oversight and approval required by the Foreign Intelligence Surveillance Act of 1978 (FISA).

As part of this deceit, the administration even encouraged Congress to engage in the humiliating spectacle of actively debating whether FISA should be amended to expand the administration's eavesdropping powers, when all the while the administration had secretly decided it had no obligation to comply with that law and could therefore exercise all of the eavesdropping powers it wanted.

Chief among the critical values at stake in this week's congressional hearings to investigate these actions, is whether Congress, the representative body of the people and the branch designated by the Constitution to make the laws, still has any meaningful role to play in our system of government.

In June 2002 -- months after the president ordered eavesdropping to be conducted without FISA warrants -- senators from both parties introduced legislation to liberalize FISA and expand the administration's eavesdropping powers. Sens. Michael DeWine, R-Ohio, Charles Schumer, D-N.Y. and John Kyl, R-Ariz., introduced FISA amendments and, in hearings before the Senate Intelligence Committee, they repeatedly expressed the belief that amendments to FISA were necessary for fighting terrorism.

The fact that the Senate Intelligence Committee held the 2002 hearings on possible FISA amendments proves that the committee members were unaware that the administration was not complying with that law. Senators would not have engaged in the pointless act of introducing amendments to expand surveillance powers if they had known President Bush had already decided he was above the rule of law.

As the Senate Intelligence Committee debated whether to amend FISA, the administration never once advised the committee that such amendments were a waste of time. Instead, President Bush allowed the Senate to go through the absurd spectacle of debating changes to a law which his administration had already secretly circumvented.

Worse still, the administration actively and repeatedly misled the Intelligence Committee, sending representatives of the Justice Department, FBI and CIA to the 2002 hearings in order to support the proposed, bipartisan amendments to FISA and to make statements which clearly (and falsely) conveyed to the senators that the administration was still obtaining warrants before eavesdropping.

But as we now know, all of these congressional proceedings regarding FISA were a complete sham. Months earlier, the administration had decided it could engage in warrantless eavesdropping, despite FISA making it a criminal offense to do so. The Bush Justice Department concluded that the president's eavesdropping powers -- even as they pertained to American citizens inside the United States -- could not be limited, even by congressional laws.

A worse institutional humiliation is difficult to imagine. The administration not only permitted but actively encouraged these senators to introduce legislation amending FISA, hold hearings, call witnesses and make grand statements about how enacting these amendments was of the utmost importance. The fact is that nothing was less important than what Congress did with FISA because the administration had secretly bestowed upon itself unlimited power.

The theories embraced by the Bush administration are both radical and unprecedented. These theories hold that, with regard to responses to the threat of terrorism both abroad and within the United States, decisions are "for the president alone to make," and neither the Congress nor the courts can limit the president in any way.

Thus, the question faced by the Congress is whether it will continue to stand by and allow the administration to claim unchecked power and relegate the Congress to an impotent, useless appendage.

The first chance the Congress has to answer that question will be on Feb. 6 when it questions Attorney General Alberto Gonzales, and it is not hyperbole to say that what is at stake are the founding and most fundamental principles for how our government operates.

Glenn Greenwald is a New York-based constitutional litigator and author of the political blog, Unclaimed Territory.