Published 5/16/2006

This month, Congress is faced with a most inconvenient crime. With the recent disclosure of a massive secret database program run by the National Security Agency involving tens of millions of innocent Americans, members are confronted with a second intelligence operation that not only lacks congressional authorization but also appears patently unlawful. In December, the public learned that the NSA was engaging in warrantless domestic surveillance of overseas communications — an operation many experts believe is a clear federal crime ordered by the president more than 30 times.
What is most striking about these programs is that they were revealed not by members of Congress but by members of the Fourth Estate: Journalists who confronted Congress with evidence of potentially illegal conduct by this president that was known to various congressional leaders.

In response, President Bush has demanded to know who will rid him of these meddlesome whistle-blowers, and various devout members have rushed forth with cudgels and codes in hand.

Now, it appears Congress is finally acting — not to end alleged criminal acts by the administration, mind you, but to stop the public from learning about such alleged crimes in the future. Members are seeking to give the president the authority to continue to engage in warrantless domestic surveillance as they call for whistle-blowers to be routed out. They also want new penalties to deter both reporters and their sources.

The debate has taken on a hopeful Zen-like quality for besieged politicians: If a crime occurs and no one is around to reveal it or to report it, does it really exist?

The plain fact is that neither party wants to acknowledge that the president might have ordered the commission of federal crimes in the name of national security. Thus, while there have been calls for another feeble hearing (possibly with telecom executives), Congress would prefer to investigate steroids in baseball and the selling of horses to France for gourmet dinners.

Nothing here to cheer

Congress has become a sad parody of itself. In his State of the Union address in January, Bush proudly said he had repeatedly ordered the domestic surveillance operation and would continue to do so. In perhaps the most bizarre moment in modern congressional history, members from both houses proceeded to give him a standing ovation — cheering their own institutional irrelevancy.

Willful blindness, however, will only go so far when newspapers continually put these acts on the front pages. In addition to new possible penalties for whistle-blowers, members of Congress are blocking the enactment of a long-overdue federal shield law to protect journalists from having to disclose their sources to prosecutors — despite the fact that the majority of states have passed such laws as an essential component to good government.

In the meantime, the Bush administration has carried out a scorched-earth campaign against whistle-blowers, including demanding that employees sign waivers of any confidentiality agreements with reporters and using polygraphs designed to uncover anyone speaking with the media. It has also sought to convince a federal court in Virginia to radically extend the reach of the 1917 Espionage Act to cover anyone who even hears classified information while researching or reporting on government policy.

In a case involving two lobbyists for the American Israel Public Affairs Committee (AIPAC), the government is seeking stiff jail terms based on their receipt of classified information orally from a Pentagon employee on policy issues in the Middle East. (The Pentagon official has been sentenced to more than 12 years in prison.) Under the interpretation of the Bush administration, if a lobbyist or a reporter or a researcher is given such information, he can be charged with unlawful possession of classified information.

If successful in the AIPAC case, the Bush administration would make it a crime for a reporter to disclose classified information, even if the story reveals a criminal operation. Thus, even if the NSA program is a criminal enterprise, it is a classified criminal enterprise that cannot be disclosed. It would have been mob boss John Gotti’s dream: Commit a crime and then stamp it classified.

What must change

It is time to separate true patriots from cringing politicians. The assertion of unchecked power by this president has created a danger to our constitutional system. Congress must demand an independent investigation of these programs. It must also pass a federal shield law and strengthen whistle-blower protections to preserve the only current check on governmental abuse. It should change the federal law to prevent the abusive use of the Espionage Act, such as in the AIPAC case. Finally, it should revamp the intelligence oversight system, which has long been viewed as a pathetic paper tiger with either little interest or ability in checking abuses.

The Framers gave us a free press as the final safety net if all other checks and balances in the three branches of government should fail. With the failure of both parties in Congress to exercise oversight responsibilities, the importance of a free press has been vividly demonstrated. The public now has a choice. It can live in self-imposed ignorance, or it can fight for an open society. Not hearing about alleged crimes by your government is certainly a comfort, but not having crimes occur would be an even greater one.

Jonathan Turley is a law professor at George Washington University who has testified before Congress on both the NSA’s surveillance operations and the need for a federal shield law to protect journalists. He is a member of USA TODAY’s board of contributors.