What is the NSA domestic spying scandal?

This is a basic intro to the NSA domestic spying scandal, a primary topic of shotgunfreude. This will remain permanently linked from near the top of the sidebar.

The administration of George W. Bush has been violating criminal law for the past four years, continues to do so, and claims that it has the authority to do so - that the law cannot restrain it. This is demonstrated most clearly in its program for the National Security Agency (NSA) to spy on American people, on American soil, without judicial warrants, which the Foreign Intelligence Surveillance Act clearly makes a felony. The administration's actions and claims usurp the checks and balances at the foundation of our Constitution and our democracy. It will either be brought to an end soon by Congress and the courts, or it will become institutionalized and our Constitution will cease to function except in official rhetoric.

If you'd like to learn more, please investigate the following excellent sources of information:

• A first letter and a second letter by 14 top legal scholars including Harold Koh, David Cole, Marty Lederman, Geoffrey Stone, Laurence Tribe, etc.;
  
• A first memo and a second memo by the nonpartisan Congressional Research Service, the investigative arm of the U.S. Congress;
  
• A memo by David S. Kris, President Bush's former Associate Deputy Attorney General for national security;
  
• An essay by John Dean, former Republican Counsel to the President;
  
• An essay by law professor David Cole;
  
• An essay by law professor Edward Lazarus;
  
• A further collection of essays and references by attorney Glenn Greenwald; and
  
• Another collection of posts by law professors Jack Balkin, Marty Lederman and friends.

Other relevant references and discussion are scattered throughout this blog.

The administration - in the words of Mssrs. Bush, Cheney, Rove, McClellan, and Gonzales - has frequently defended its disregard for the law by saying "Our position is that if someone in America is talking to al Qaeda, we want to know about it" - implying that its law-breaking program is needed to combat terrorism, that we cannot defeat terrorism unless we abandon democracy. This flagrantly misrepresents the positions of those who insist that the president remains bound by the rule of law. No politician has argued that we should not conduct intelligence on terrorists. But the law already provides all the tools needed to track and fight terrorism. The administration has simply chosen to ignore the law.

Even many Republican leaders such as Senator Arlen Specter have said the NSA program violates the law. There has been a huge push from both sides of the aisle to investigate the program further and/or to write a new law to restrain the scope of the program and/or simply legalize to varying degrees. However, all of these efforts are a waste of time: since the administration openly admits to violating the law, that fact is known by everyone prior to any further investigation; and since the administration claims the right to violate the law, this would apply equally to any future law Congress comes up with. The only option remaining for Congress, if it is to remain a functioning body, is to ensure the administration decides it must be governed by law after all - either by taking action sufficient to convince the present administration to humble itself, or by clearing out the current administration and making room for a new one, by impeachment proceedings.

That is why the least disruptive meaningful step to take right now (as of March 2006) is Senator Russ Feingold's resolution to censure the president. Anything less, at this point, is a meaningless waste of time - as indicated above. It might be hoped that the ever-increasing attention, investigation, and opprobrium by Congress and the public spurred by the censure resolution will suffice to motivate the administration to submit itself to the rule of law. If it does not, then impeachment will become the only remaining solution to the disruption of our democracy.

I'm an attorney in private practice and I was a solid Republican voter until 2002, after going through our first stiff dose of the Bush administration. (It did more than turn me off to this particular president - it made me fundamentally reconsider all my basic political assumptions.) I write about this stuff here, and in letters to members of Congress etc., because I'm a huge fan of American democracy and I'd like it to still be around in twenty years.