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DOJ Riven Over Domestic Spying

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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June 21, 2007

According to House Intelligence Committee chairman Silvestre Reyes, D-Tex., former attorney general John Ashcroft confirmed the testimony of his former deputy, James Comey, that there were deep fractures within the Justice Department and White House over the legality of the NSA domestic spying program.Ashcroft’s testimony in closed session comes as the Intelligence Community is putting the full-court press on Congress to make unnecessary and dangerous changes to the Foreign Intelligence Surveillance Act, the law that was, by its plain terms, meant to apply to the type of surveillance President Bush authorized under his own supposed (and non-existent) authority. It also coincides with the Senate Judiciary Committee’s authorization today of subpoenas seeking documents related to the legal battle within the administration over the NSA scandal.What, you ask, does all this have to do with habeas? Well, the NSA story is basically another facet of the big ideological picture in the current administration. As President Nixon once said (in desperation, I might add), if the president does it, it can’t be illegal.And, hence, the unilateral action by the Bush administration to restrict or undermine basic civil liberties protections—be it habeas corpus, due process or Congressionally mandated safeguards against official invasions of privacy—percolated through the entirety of Bush’s six years in office. It is that executive arrogance that the ACLU hopes to underscore at next Tuesday’s Day of Action in Washington.In addition to being a mobilization and lobbying tool, the day is also an attempt to draw together the big puzzle picture of the Bush administration’s legacy on civil liberties. And when the pieces fit together, the larger story, I am sure, won’t just be the valiant efforts of outside activists to restore fairness in our system. Rather, it will be the quiet revolution among straight-arrow conservative Republicans serving the president who refused to toe the party line when it strayed far into official illegality.Though we should salute those men and women, we should also ask them respectfully why they didn’t resign. Though Mr. Ashcroft may have confirmed Comey’s testimony, why didn’t he do more when his independence was so obviously compromised—especially given his relative political insulation from the Bush inner circle. What’s the line? For tyranny to flourish, all that’s necessary is that good men (and women) do nothing?Here’s the ACLU release on the subpoenas.