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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.

Friday, March 17, 2006

The new Nixon Law is introduced -- that which the President does is legal

(updated below)

Michael DeWine yesterday introduced what he is calling The Terrorist Surveillance Act of 2006 (.pdf), co-sponsored by those independent maverick Republicans Olympia Snowe, Chuck Hagel and Lindsay Graham. The purpose of the bill is to render legal the illegal warrantless eavesdropping program ordered by the President more than 4 years ago. This bill is based upon the Richard Nixon Theory of Executive Infallibility, famously expressed in Nixon's 1977 interview with David Frost:

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly.
If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

With that Presidential Infallibility premise firmly embraced by the independent Republican mavericks, we are presented with the Terrorist Surveillance Act. This is what it does:

It expressly empowers the President, in Section 2(a), to "authorize a program of electronic surveillance without a court order for periods of up to 45 days.” The President can simply renew the program every 45 days by certifying that renewal of the program is appropriate (Section 4(b)(2)). Contrary to initial press reports and to this morning's article in The Washington Post, the newly created Intelligence Subcommittee (at least as I read the bill - see below) has no power to approve or reject any warrantless eavesdropping programs. Its only purpose is to be briefed periodically on the eavesdropping activities undertaken as part of the program.

In sum, the bill authorizes and makes legal precisely the illegal conduct in which the Administration has been continuously engaging since September or October of 2001. The Administration claims that it reviews its warrantless eavesdropping every 45 days, so that's precisely what the bill authorizes. Or, as Richard Nixon says: "when the president does it that means that it is not illegal."

Here are some additional observations about the bill:

(1) As permissive as it is, this bill still purports to impose minimal limits on the power of the President to eavesdrop, but the whole crux of the NSA scandal is that the President believes that Congress has no power to limit what he can do. Thus, what conceivable rationale is there for Congress to enact laws purporting to impose limits on what the President can do when the President has made clear he will break those laws if he decides he wants to? This bill merely amends FISA ( by significantly loosening its requirements), but the President still says he has the right to violate FISA, so what is the point of amending a law which the President will violate when he wants to?

This is a completely fruitless and absurd exercise to engage in without resolving the question of the President's claimed law-breaking powers. In reality, this is the only point worth making. Laws passed by Congress which are designed to place limits on the President's actions are worthless because the President has claimed the power to ignore those laws. And we know this both because he has said so and because he has been ignoring them. All other discussions about this bill or other bills are just academic as long as the President claims, as he does, the power to break the law.

(2) The bill allows warrantless eavesdropping programs where there is "probable cause" to believe that one of the individuals whose communications will be intercepted as part of the program is someone “working in support of a group or organization” deemed to be a terrorist group (Section 2(a)(2)). It does not require case-by-case probable cause, merely that there be probable cause that some (but not all) of the intercepted communications under the program involve individuals affiliated with (or "working in support of") terrorist groups. Thus, a program which intercepts the communications of totally innocent people with no connection to terrorism is perfectly fine as long as the program also intercepts communications of someone who does have such connections.

(3) The President is allowed to intercept the communications not only of individuals who are agents or affiliates of a terrorist group, but also anyone who is deemed by the Administration to be “working in support" of such an organization. The bill provides no definition of what one has to do in order to be deemed to be "working in support" of a terrorist organization. In order to rectify the obvious problem that the Administration's political opponents are routinely accused of "working in support" of terrorists -- and would therefore fall within the scope of whose communications can be intercepted -- the bill provides this impotent limitation under Section 2(b)(1):

Electronic surveillance carried out pursuant (to this law) . . . shall not be conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States

Presumably, the idea behind this clause is that it prevents the Administration from eavesdropping on political opponents and domestic political groups solely by virtue of the views they express, because to be considered someone who is "working in support of" terrorists, one has to do something other than express opinions protected by the First Amendment. But this clause has so many holes as to be completely worthless.

Amazingly, the bill actually authorizes electronic surveillance based substantially on someone's political views (which would be deemed to be "in support of" terrorists), just as long as those views are not the sole basis for interceptions the person's communcations. Thus, if someone gives a speech which the Administration believes is "pro-terrorist," and then has a meeting that the Administration thinks is suspicious, the person's communications could be intercepted under the bill.

And whether even political opinions which are deemed to be "pro-terrorist" are protected by the First Amendment is something that could be disputed (not reasonably disputed, but disputed nonetheless). I have no doubt the Administration believes, and would simply decree, that "pro-terrorist" opinions can be the sole basis for eavesdropping because they are not "protected by the First Amendment."

Critically, this bill defines who the Administration can eavesdrop on without obtaining a warrant. That means that all of the determinations as to who qualifies to be eavesdropped on are no longer with a court, but with the Administration to make unilaterally. The bill allows eavesdropping on anyone deemed by the Administration to be "working in support of" terrorist groups. It expressly allows First Amendment activities to be taken into account and even be the substantial basis for such a determination. In essence, then, the bill thus vests in the Administration the unchecked power to eavesdrop on whomever it wants.

(4) As indicated, under this bill, the Administration does not need any approval from any court or committee to engage in warrantless eavesdropping. It need merely certify on its own that such eavesdropping meets the law's criteria, and then report to the subcommittee once every 6 months (or when the subcommittee requests a briefing) on what it is doing (Section 6(c)).

There is no mechanism for the Subcommittee to take any action if it believes that the eavesdropping power is being improperly or illegally exploited. Worse, the bill includes extremely onerous penalties for anyone who discloses any information "relating to" the eavesdropping program (Section 8).

While this draft does not include penalties for reporters, it would make it a criminal offense for a member of the Subcommittee to publicize illegal or abusive eavesdropping on the part of the Administration. Thus, while the Administration is required to brief the Subcommittee on its eavesdropping activities twice a year, the Subcommittee has no power to take any action to stop abusive eavesdropping and its members would even be subject to criminal penalties if they disclosed anything it learned -- including illegal eavesdropping on the part of the Administration.

(5) A few miscellaneous provisions worth noting:

  • the bill requires that the targeted intercepted communications must involve one person who is not within the United States (Section 2(a)(3)), but it expressly allows interception of purely domestic communications as part of any eavesdropping program as long as there is “not a substantial likelihood” that the intercepted communications are domestic;

  • Under Section 2(e), “the Attorney General may direct a specific provider of communication services or common carrier” to take any action necessary to effectuate the surveillance. Thus, telephone companies and any other communication providers would be required to obey orders from the Attorney General to take any steps the Government directs to ensure that it can intercept communications;

  • Under section 5(b), the Administration is required to obtain a FISA warrant for eavesdropping if it decides that it can get a FISA warrant. If it does not so decide, then it is free to eavesdrop without a warrant for as long as it wants, as long as it renews its own authority every 45 days -- just like it has been doing.

The Washington Post has an interesting analysis of the political conflicts still very much raging among Republicans over this bill specifically and, in general, how this scandal will be resolved. Arlen Specter has expressed unequivocal opposition to the bill and "particularly objects to letting the government 'do whatever the hell it wants' for 45 days without seeking judicial or congressional approval."

Unsurprisingly, Pat Roberts has the opposite concern: that the bill commits the Most Grievous Sin of purporting to place limits on the Power of the Commander-in-Chief, something which, to Roberts, is intolerable for our country. He said: "I am concerned that some of the procedural requirements included in the bill may limit the program's effectiveness."

And Jay Rockefeller took the principled, resolute stand for which he has become so widely admired. He said through a spokeswoman that it is "too soon to consider legislation until the oversight subcommittee can answer critical questions about the program."

One last point to note. The Washington Post story contains this summary of the bill, which seems to me, upon reading the bill only for the first time this morning, to be inaccurate:

The bill would allow the NSA to eavesdrop, without a warrant, for up to 45 days per case, at which point the Justice Department would have three options. It could drop the surveillance, seek a warrant from FISA's court, or convince a handful of House and Senate members that although there is insufficient evidence for a warrant, continued surveillance "is necessary to protect the United States," according to a summary the four sponsors provided yesterday.

As indicated, nothing in the bill (as far as I can tell) actually requires the Administration to "convince" the Subcommittee of anything. To the contrary, Section 4(b) expressly states:

(2) CONTINUATION - If the President determines under Paragraph (1) to continue the Terrorist Surveillance Program, the President, through the Attorney General, may continue to the program for an additional 45 days, subject to the requirements of section 2(a)."

Section 2(a) merely defines the scope of whose communications can be intercepted, which means that the bill plainly empowers the President to authorize renewal of the program unilaterally, without needing the approval of anyone. If someone thinks the Post's interpretation is right that the Administration has to "convince" the Subcommittee to continue eavesdropping after the initial 45 day period, I'd be very interested in hearing the basis for that.

This bill reflects quite vividly where we are as a country. The President got caught breaking the law. He claims he has the right to do so. And the Congress, in response, refuses to investigate what the President did, but instead, seeks to find a way to pass a new law which it hopes the President will decide to comply with.

UPDATE: Marty Lederman agrees with my reading that -- contrary to the inaccurate reporting by The Washington Post -- this bill would not require the Administration to "convince" the Subcommitee of anything in order to renew the warrantless eavesdropping after 45 days. All that is required is that the Administration submit to the Subcommittee a certification that renewal is warranted under the criteria set forth in the bill, but the Subcommittee is without any power of any kind to reject or prevent the Administration from engaging in whatever warrantless eavesdropping it wants. As Marty says:

The Administration would not be required to justify its program to the legislators, nor to "convince" them of anything. And the Subcommittees could not, of course, do anthing to stop the program, short of persuading Congress to enact a veto-proof amendment to this law.

It's amazing how frequently wrong the media is about about the most important parts of the stories they report on. Whether or not the Administration is required under this bill to obtain permission of the Congress to continue to engage in warrantless eavesdropping is pretty crucial to the story. There's just no excuse for the Post to tell its readers that this bill requires such approval when it just doesn't.

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