Bush's Unlikely Co-conspirators

President Bush deserves plenty of blame for secretly authorizing domestic spying by the National Security Agency. But some of the president's fiercest critics in Congress gave him the political cover to do so. The question why they did so says much about the nation's brittle democracy and how Democrats have covertly joined with Republicans to restore the imperial presidency and effectively remove any checks on the executive branch of the U.S. government.

The domestic spy scandal first looked like another unilateral move by a president bent on doing secretly what he refused to admit publicly. After 9/11, President Bush ordered the National Security Agency to surveil phone calls and emails of Americans in the U.S. In an amazing confession last month, Bush admitted disregarding the law in authorizing the spy program in 2002, opening himself to impeachment charges and NSA officials to criminal indictment.

Underscoring the gravity of the president's actions, last Friday the Congressional Research Service, a nonpartisan research arm of Congress, found that Bush apparently had no authority to bypass Congress in ordering domestic spying, saying in a polite understatement that the legal rationale "does not seem to be as well-grounded."

The congressional report is another blow to Bush's flimsy argument that his spying order is legal. But it is now clear that Bush has a second defense that is more difficult to dismiss: the claim that by briefing selected members of Congress on the program, he essentially sought and gained legislative approval for domestic spying.

Indeed, at least seven Democrats in the House were briefed by the Bush administration on the spy program as far back as four years ago. Among those briefed include Nancy Pelosi, House Democratic leader. Last week, Pelosi released a previously classified letter documenting some of her concerns about NSA spying. The question that went unanswered is why Pelosi -- and the other Democrats, including former South Dakota Sen. Tom Daschle and West Virginia Sen. Jay Rockefeller -- never blew the whistle publicly on the program.

Pelosi, Daschle and Rockefeller each privately expressed dismay over the spying program -- in secret. They didn't go public with their concerns because they were bound by rules governing classified briefings of congressional members. These classified briefings were launched more than 20 years ago as a reform in the oversight of the nation's spy apparatus. But like many other reforms, classified briefings have become perverted and, in the hands of President Bush and Vice President Cheney, have become gags that prevent Congress members from doing their job.

In the mid-1970s, abuses by the CIA and the FBI led to a series of reforms that included the formation of House and Senate oversight committees. Members of these committees received classified briefings on secret operations conducted by the U.S. government. The briefings were seen as a way for Congress to exert some control over the president.

The concept is proving to be flawed, however. As a condition of receiving a classified briefing, the congressional member agrees not to disclose any of the contents. That creates a double bind. The member can object but only privately.

Pelosi got caught in this bind. If she blows the whistle on the spy program, she ran the risk of being stripped of her security clearance -- and sanctioned by the Republican-controlled House. Even worse, she might have betrayed some of her closest political allies, such as the ranking Democrat on the House Intelligence Committee, Jane Harman, who seems to have approved the secret spying program. So Pelosi shut her mouth, kept her grave misgivings private -- and betrayed the American people.

She didn't have to. She could have blown the whistle on the program. Such whistle-blowing is rare but not unprecedented. In 1995, for instance, then-Rep. Robert G. Torricelli, D-N.J., was told by a State Department employee that a paid CIA informant, Guatemalan Col. Julio Roberto Alpirez, was involved in the killing of an American citizen's husband. Then a member of the House Intelligence Committee, Torricelli complained the CIA was doing nothing to uncover the facts of the case for the widow, Jennifer Harbury.

Of course, Alpirez's identity and ties to the CIA were classified; Torricelli revealed them anyway. In March 1995, Torricelli listed Alpirez's name and his connection to the CIA in a letter to President Clinton and gave a copy of the letter to the New York Times. Torricelli was sanctioned for his actions, but they stand as a reminder that members of Congress can blow the whistle on classified briefings in extraordinary circumstances. Bush's domestic spying program qualifies.

Little more than a year ago, President Bush stood for re-election. Didn't the American people deserve to know that he'd authorized a secret domestic spying program? Pelosi opposed Bush, knew about the program -- and didn't say a word. Neither did Rockefeller or Daschle.

The failure of these Democrats to risk personal censure for the greater public good can give the impression there is actually only one political party in the U.S., and that opposition and dissent on issues of security in Washington are only a mirage.

There is a way out of this sorry situation. As the congressional lobbying scandal widens, there will be calls for new rules to limit lobbyist influence over House and Senate members. These new rules are needed. But new rules are also needed over classified briefings. These briefings have failed to limit abuses by the government's spy agencies. They have perversely given political and legal protection to the very people committing illegalities. Congress members need to have the explicit authority to take their concerns to the public when they learn of objectionable, or illegal, spy programs. The president, of course, will counter that he will not give any classified briefings without a prior gag rule on House and Senate members.

Congressional members should challenge the president and end classified briefings, if necessary. These briefings mock the principles of representative government. They should be reformed, or halted.

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