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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, February 28, 2006

Pushing the teetering monster

(updated below)

There were numerous comments expressing some questions about, and disagreement with, my observations yesterday regarding the FISA amendments proposed by the Specter bill. Many of those questions and diagreements highlight some broader and extremely important issues raised by the NSA scandal generally, so I wanted to address the most commonly made and significant objections:

(1) I am not in favor of the Specter bill and was not suggesting that the bill itself would be a good law. Quite the contrary. FISA is a carefully constructed legislative framework which balances the need to have our government aggressively engage in foreign intelligence surveillance while ensuring that the past abuses by our government of eavesdropping powers do not repeat themselves. It has worked extremely well for 30 years and it was amended in 2001 at the request of the Bush Administration in order to cater it to the modern communication technologies which the Administration claims are used by terrorists.

Until George Bush got caught breaking this law and needed a defense, nobody serious ever -- over the 30 years since its enactment -- suggested that FISA was unconstitutional or even problematic. The opposite is true: we defeated the Soviet Union while our government eavesdropped only in accordance with FISA, and George Bush lavishly praised FISA when it was liberalized in the aftermath of 9/11 as a tool which enables the government to "conduct court-ordered surveillance of all modern forms of communication used by terrorists . . . ."

FISA is a law which enables strong, aggressive eavesdropping while preventing abuse, and there is no need to change it -- certainly not fundamentally. The Specter legislation provides eavesdropping powers to the government which are far too permissive and which simply are not necessary.

But we have to live with reality and the reality is that this legislation has now been introduced by the Chairman of the Senate Judiciary Committee and, I’d be willing to wager a fair amount, many Democrats (and some, but not by many, Republicans) will be tempted to support it as some sort of illusory middle ground. I do not believe this bill has any real chance of being enacted because the White House will vigorously oppose it. But since wishing it away is not an option, one can try to find ways to use it for beneficial outcomes. That was the point of my post – not to praise the legislation but to identify ways that it can be beneficial in fueling this scandal and in highlighting the Administration’s true law-breaking motives.

(2) In response to my original post on Sunday about the Specter bill, many people suggested that this bill was the by-product of some sort of secret agreement with the White House designed to quietly end the scandal. Republicans would get on board with the Specter bill and the scandal would go away.

I do not agree with that analysis because this bill is nothing like what the White House wants and they will never support it. In many ways, it is the opposite of what the Administration wants, because it is based on the premise that the courts and Congress have substantial powers to regulate and oversee what the Administration does in these areas, and the Administration’s primary goal is to reject and kill the idea that the other branches have a role to play in limiting what the President can do. And, indeed, the reaction to Specter's bill from Bush followers was vehement, even angry, opposition -- precisely because it undermines the "principle" that George Bush has the power to break the law in the name of Al Qaeda.

That is why I believe that this bill can exacerbate the wedges among Republicans and fuel this scandal. There are many Republicans (I believe Specter is one) who take the Administration’s claims at face value and believe that they violated FISA not because (as I believe) they do not recognize any checks on their national security powers, but because they genuinely believed that FISA was too restrictive or cumbersome to allow them to engage in important counter-terrorism surveillance.

These Republicans will be disabused of that belief once it becomes apparent that the White House is not interested in FISA amendments but is only interested in solidifying its unilateral, unchecked power over all matters relating to national security, and will therefore reject any framework (no matter how much eavesdropping power they have) which entails any meaningful oversight or restriction on what they can do.

And it will become more apparent generally that this scandal is not a dispute over what the proper scope of the government’s eavesdropping powers should be. It goes far beyond that and raises a much more profound crisis. The scandal is not about eavesdropping and whether the President should be able to eavesdrop without warrants but about the rule of law and whether the President has, as he claims, the power to break the law. Anything that highlights that still under-appreciated point is something I find valuable and, for the reasons I explained, the Specter legislation (whether intentionally or not) does exactly that.

(3) From the beginning of this scandal, I have tried to emphasize that the Administration’s wrongdoing here is completely independent of whether or not they abused their eavesdropping powers by intercepting the communications of, say, journalists or political opponents rather than suspected terrorists. This is important to note because the Administration broke the law by eavesdropping on Americans without judicial oversight and approval, and that is true -- and it is unacceptable, scandalous and profoundly dangerous -- regardless of whether the Administration, in addition to breaking the law, also engaged in eavesdropping abuses.

This scandal is not dependent upon proving that the Administration abused their eavesdropping power. Right now, this is a law-breaking scandal. The scandal is that the President claims the power to violate the law and did so here by eavesdropping on Americans without the judicial oversight and approval which the law requires. If it turns out that the Administration abused its eavesdropping powers, then that is a second scandal – a separate eavesdropping scandal which would be extremely serious in its own right. But the NSA scandal arose not because of proof of eavesdropping abuses, but because of proof that the President broke the law. Repeatedly and deliberately.

We do not yet know how the Administration exercised these powers precisely because they eavesdropped in secret, without the oversight which American citizens required for eavesdropping. That’s why a Senate Intelligence Committee investigation is so imperative; it is one of the few real mechanisms for discovering whether the eavesdropping powers were abused.

But, while we do not yet know if the Administration abused its eavesdropping power, what we do know – for certain – is that the President broke the law because he has seized law-breaking powers. That fact, by itself, creates a serious governmental crisis and does not depend upon the independent issue of how the eavesdropping powers were used.

Every time I make this point, some people invariably react as though I am denying that the Administration abused its eavesdropping powers. That is not my point. I do not deny that the Administration abused its eavesdropping powers because I don’t know if they did or didn’t. Nobody knows, precisely because they eavesdropped in secret and without oversight. And given the history of eavesdropping abuses as well as the corrupt character of this Administration, I would not be surprised at all if they did engage in eavesdropping abuses, and would probably be surprised if they didn’t.

But I think it’s critically important to keep the law-breaking issue separate from the eavesdropping abuse claims. The President cannot be allowed to break the law no matter what motives he claims he has in doing so and no matter what conduct he engages in when breaking the law. We know the President broke the law and continues to do so, and that -- by itself -- presents a profound threat to our basic constitutional principles and to the rule of law, regardless of how the eavesdropping powers were exercised.

(4) Many commenters observed that the Specter legislation is useless because even if it became law, the Administration would simply violate it when they want just as they are violating FISA. I agree entirely - and, for me, that is the whole point that needs our exclusive focus.

A dispute over the proper scope of eavesdropping power and what evidentiary standards should be met to obtain eavesdropping authority is important, but it is a garden-variety political debate. What our country is facing – whether it realizes it yet or not – is far, far beyond that. As I said yesterday:

In our country today, having Congress enact legislation is no longer enough for a bill to become an actual, binding law. What is now required as well is that the Administration agree to be bound by the legislation, because we currently live in a country where -- with regard to national security -- the President believes he has the power to obey only those laws that he agrees to obey (while having the power to break those laws which he does not agree to obey).

The Administration, of course, is already violating the current Congressional statute designed to regulate its eavesdropping activities and it has stated that it has the power to do so. Thus, the only way this legislation would ever matter is if the Administration agrees to adhere to this law.

In sum, under our current system of Government, what used to be called a "law" is now more like a contractual offer or a suggestion. When the American people pass a law through our Congress, we have to hope that the President will agree to obey it. But as the President has repeatedly made clear, he believes he does not have to and he may decide – in secret – to violate the law. That’s the profound crisis and scandal plaguing our country that few seem to want to acknowledge.

The public does not realize that the crisis we face is a crisis of the rule of law, borne of the fact that the President of the United States has expressly arrogated unto himself the power to break the law, and is exercising that power on numerous fronts, not only with regard to
eavesdropping. The reason they do not yet realize this is because this scandal has been depicted – by the media and, infuriatingly, even by Democrats – as being an eavesdropping scandal, not a law-breaking scandal. As a result, debate has centered over whether the government should be eavesdropping, not over whether the President has the power to break the law.

I believe that making the public aware of the true issue at the heart of this scandal is the most important priority, by far. I have always said that I believe this scandal can be resolved the way it ought to be and that we can impose consequences on the President for his illegal conduct if public opinion demands that. And, in my view, the public will demand that once they realize that the President of the United States has expressly claimed that he has the power to break the law and is doing so.

We have a history in this country of punishing political officials who believe that they are above the law, and George Bush is no different. If anything, his extreme and ever-increasing unpopularity makes him more vulnerable than ever. Every recent poll, including yesterday’s CBS poll (.pdf), shows that a majority of Americans already believe that the President’s warrantless eavesdropping is illegal. The public, which does not trust George Bush at all, is primed to be convinced, and I believe they can and will be.

For many reasons, this campaign of persuasion will not come from Democrats in Washington or the media on their own. But it doesn’t need to. Pressure to hold the government accountable for its law-breaking and to reject claims of law-breaking powers is going to have to come from citizens expressing their refusal to accept these assaults on the principles of government that have made our country free, strong and great for the last two centuries.

The blogosphere is one tool, an extremely important tool, for reaching large numbers of citizens. Critically, it enables information to be communicated directly to other citizens en masse without the intervention of the establishment media, and independently enables concerted action without having to rely on some party apparatus or other clunky, obsolete, stagnation-producing mechanisms such as the beltway "advocacy organizations."

There are projects underway which, though in their incipient stages, can be significant in reaching large numbers of people and affecting how they view these matters. And as I’ve alluded to before, I have been developing a project which I think can be quite significant in shaping the public debate over this scandal specifically and the crisis of law-breaking generally which I will be able to announce (with a good deal of excitement) in a couple of days.

One of the many brilliant attributes of our system of government is that citizens really do serve as a meaningful check on government abuses, and they do so in endless, ever-changing ways. To recognize that fact does not require optimism -- just reality. Throughout our history, Americans have figured out methods for destroying corrupt institutions and smashing even the most ingrained practices and laws -- and when they could not find ways to do so, they invented new ones. Seemingly invulnerable and omnipotent political figures and movements have been destroyed, all as a result of the actions of citizens who have made large numbers of Americans aware of the need to act.

Whatever systems are in place are in place because they were constructed by human beings. Any systems built by human beings can be torn down and replaced just as easily as they were built. There is nothing invulnerable or omnipotent about the Bush movement or the systems which they have erected in order to fuel their agenda. It can be brought down just as easily as others like it have been destroyed.

All that is needed is for citizens to become aware of just how radical and dangerous their conduct is. It’s happening already, and there is no reason whatsoever to convince oneself of the futility of battling against it. Quite the opposite. There is every reason to believe that it is starting to teeter and just needs a good, hard push to fall and shatter.

UPDATE: The Senate Judiciary Committee is holding hearings today with a panel of professors and former government officials (including conservative Administration critic Bruce Fein and the odious defender of Bush law-breaking, Professor Robert Turner). According to Georgia at Kos, the proposed Specter legislation was at least one of the issues being discussed. I was unable to listen to the hearing, so if anyone finds where there is a transcript, I'd appreciate if you could post the link in Comments or e-mail it to me.

UPDATE II: Markos posted an amazing 50-state survey on the views of Americans regarding the NSA scandal -- and specifically their beliefs about whether George Bush broke the law. In 37 out of 50 states, a plurality believe that it is clear that Bush broke the law. The best state for Bush is Oklahoma, where only 42% believe that he clearly did not break the law - the highest number of any state which thinks that. In almost every state, between 20-25% believe it's not clear one way or the other, which demonstrates that scores of people are still open to being persuaded on this question (while a plurality, as every poll shows, already believes that Bush broke the law).

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