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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.

Wednesday, March 08, 2006

Post-mortem on the Intelligence Committee vote

(updated below)

The Senate Intelligence Committee yesterday rejected Sen. Rockefeller's motion to hold hearings to investigate the President's warrantless eavesdropping program by an 8-7, strict party line vote. Yet again, every Senate Republican followed White House instructions not to investigate the President, and this time did so despite the statements of several of those GOP Senators just within the last 8 weeks that such an investigation was urgent and necessary.

In lieu of fulfilling their pledge to discover the scope of the Administration's warrantless eavesdropping on Americans, Sens. Hagel and Snowe decided instead that they would support legislation which would create a 7-member Subcommittee (4 Republicans and 3 Democrats) to which the Administration is required to report all warrantless eavesdropping activities:

The proposed legislation would create a seven-member "terrorist surveillance subcommittee" and require the administration to give it full access to the details of the program's operations. . . .

The agreement would reinforce the authority of the Foreign Intelligence Surveillance Court, which was created in 1978 to issue special warrants for spying but was sidestepped by the administration. The measure would require the administration to seek a warrant from the court whenever possible.

If the administration elects not to do so after 45 days, the attorney general must certify that the surveillance is necessary to protect the country and explain to the subcommittee why the administration has not sought a warrant. The attorney general would be required to give an update to the subcommittee every 45 days.

Sen. Rockefeller stated the obvious:

Emerging from a closed-door session in which Democrats lost two party-line votes, Sen. John D. Rockefeller IV (D-W.Va.), the vice chairman of the committee, said the outcome pushed the panel "further into irrelevancy" and reflected the influence of the Bush administration."The committee is, to put it bluntly, basically under the control of the White House," said Rockefeller. . .

The Senate Judiciary Committee's hearings are still ongoing and, when he was last heard from a day or so ago, Sen. Specter was still squawking about being angry that Gonazles lied to the Committee and insisting that the Committee would at least find out whether there were other warrantless eavesdropping programs in place:

The NSA issue was brought up at a Senate Appropriations Committee hearing by Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, who is drafting his own bill. Specter warned that he will try to reduce the administration's funding unless Attorney General Alberto R. Gonzales agrees to answer more of his committee's questions.

"We're having quite a time in getting responses to questions as to what has happened with the electronic surveillance program," Specter said. "I want to put the administration on notice and this committee on notice that I may be looking for an amendment to limit funding as to the electronic surveillance program -- which is the power of the purse -- if we can't get an answer in any other way."

Sen. Specter is, of course, of the same rancid strain as Sens. Snowe and Hagel -- the group that struts around self-lovingly preening as some sort of "independent Republicans" only invariably to fall in line, meekly and without exception, with White House commands. In fact, of all of the well-behaved good little boys and girls which the White House has assembled in the Senate, Sen. Specter, his ritualistic maverick pretenses notwithstanding, is one of the most easily controlled. Placing one's hopes for Congressional oversight and integrity in Sen. Specter, of all people, is just an invitation to further disappointment.

With all of those facts assembled, here are a few preliminary observations:

(1) Initially, it is almost unfathomable how little personal dignity these compliant GOP Senators have. Sens. Snowe and Hagel issued a statement in December pompously expressing their "profound concern" over the eavesdropping program and proclaiming that it is "critical" that the Senate hold hearings in order to learn what the Administration did when spying outside of FISA and without warrants on Americans.

After standing up and publicly making those statement and issuing those demands, they completely reverse themselves a few weeks later when the White House decrees that they do so. They thus vote against the very investigation which they both insisted, in public, was so critically important. If nothing else, just on a personal level, shouldn't they be way too embarrassed to be so blatantly manipulated and controlled, to the point where they demand hearings only to then vote against those same hearings a short time later all because that's what the White House demands?

(2) Let's think just for a brief moment about the always depressing topic of the role of the media here. Here are some rather critical and glaring questions which the hearings would have answered but which, now, remain unanswered:

Did the Administration engage in warrantless eavesdropping on Americans who have no connection to Al Qaeda or to other terrorist groups?

As part of any program, did the Administration engage in warrantless eavesdropping on the purely domestic communications of Americans?

Did the Administration initiate any other warrantless eavesdropping programs aimed at Americans besides the one revealed by The New York Times?

Why did the Administration never seek revisions to FISA if it believed that the law was inadequate or too cumbersome to permit necessary eavesdropping?

It is so obvious as to be painful to point out that the purpose of the Senate Intelligence Committee is to find out answers to those questions. But the White House has exploited its control of the Committee to block that from happening.

But in our system of government, we have multiple checks on government abuse. Congress is but one check. The media, intended to be the "Fourth Estate," is another. Are they really going to just walk away from this story without finding out the answers to these questions and informing Americans as to the answers? What possible excuse is there for reporters not to be hounding every Administration official at the White House, the Justice Department, everywhere with these questions; editorializing continuously about the obligation of the Administration to answer those questions; and making clear to the public how irrational and absurd it is for Congress to start exercising oversight on these programs without having any idea what the Administration secretly did in the past, outside of the law, and without even bothering to find out?

(3) The legislation that Sens. Snowe and Hagel embraced in order not to defy the White House is really nothing short of a bad joke. I have no doubt that, in their minds, they courageously stood up to the White House by demanding that the Administration come to this new little Subcommittee and report in detail on warrantless eavesdropping activities every 45 days, and further, requiring the White House to obtain FISA warrants "whenever possible," whatever that might mean. But this "oversight" is self-evidently illusory and meaningless.

What the legislation does, on its face, is replace FISA judges with Republican Senators in approving the government's eavesdropping activities. Whereas the country agreed to a framework 30 years ago which allowed the government to eavesdrop on Americans only if the Government persuaded a FISA judge that such eavesdropping was warranted, this proposed legislation eliminates that requirement and allows warrantless eavesdropping as long as 4 Republican Senators agree with the White House that such actions are warranted.

But there is a far bigger and more important problem. Congress already enacted legislation regulating the Government's eavesdropping activities. They called that law FISA. The Administration has been violating that law because they believe they have the power to do so, because they think that Congress has no power to regulate or limit the President's eavesdropping activities. Since the White House still believes it has this power, isn't passing another law facially moronic, given that the Administration has already said that they are free to violate whatever Congressional laws they want which purport to regulate eavesdropping?

And, just by the way, there is also another law passed by Congress more than 50 years ago called the National Security Act of 1947, which already requires the Administration to brief the full House and Senate Intelligence Committee on all NSA activities, a law the Administration also plainly violated.

The Administration has told Congress to its face that it has the power to ignore Congressional laws with regard to eavesdropping and that it is free to defy Congressional law mandating briefings on these types of intelligence activities. So, Congress' response is to pass another law to replace the one the White House violated, and to require some more briefing. Isn't that too absurd even for the Congress? At the very least, would it be possible for the media to explain to the public what has happened here?

(4) The issue which is left unresolved by all of these Congressional shenanigans is the issue that lies at the core of this scandal and several others: namely, we are a country in which the President has seized the power to break the law.

For that reason, I think it's important not to overstate the importance of yesterday's vote. Recall that this vote was previously scheduled to take place three weeks ago, on February 16, and Pat Roberts blocked the vote from proceeding. At the time, it was reported that this meant that the Intelligence Committee would not investigate the NSA program. The day after Roberts blocked the vote, I wrote:

[N]obody ever thought that a just resolution of this scandal was dependent upon an investigation by the Senate Intelligence Committee, dominated, as it is, by the mewling, slavish and indescribably dishonest Pat Roberts. The notion that this scandal has come to an end all because Roberts blocked, for the moment, hearings that were to be held by that Committee is nonsensical. Thankfully, this scandal never depended upon the integrity of Pat Roberts, and hearings in front of that Committee were merely one of the many ways to compel a real investigation, but it was hardly the only or even primary way . . . .

[O]ne must remember that there are numerous other branches of this scandal which are alive, well, and growing. The investigation of the Senate Judiciary Committee continues, with disputes raging between the Republican Chairman and the Attorney General over the scope of further witnesses testimony and the DoJ’s obligation to disclose documents. . . . . And, as I posted about yesterday, the judiciary is now involved in this scandal and is beginning to assert its institutional role in our democracy.

In sum, there are numerous governmental processes underway far beyond the Senate Intelligence Committee which are engaged in serious and potentially fatal investigations of this scandal. And beyond those, what will ultimately determine whether the Bush Administration is held accountable for its law-breaking are two components which neither Dick Cheney nor Pat Roberts can shut down – the investigative work of the press and the opinion of the public.

I would encourage anyone who thinks that the law-breaking scandal is over or that the Administration has won again to read that post. None of what happened yesterday should be a surprise. That we live under one-party rule is not a revelation. It is one of the principal reasons why our Government has become such a cesspool of unchecked corruption.

And the checks which are meant to exist on Presidential abuses -- checks and balances from the other branches as well as watchdog functions from an adversarial media-- are largely broken. The only real check left is the power of public opinion which, throughout our country's history, has been the most potent of all of those forces when it is activated.

Finding a way to activate it -- to make the public aware of how radical this Administration has become and to persuade them why they ought to care about that, not just with regard to NSA eavesdropping but generally with regard to the Administration's belief that it has the power to engage in any conduct, including violations of the law -- has been and remains the central challenge. Yesterday's vote is but a blip in that mission.

UPDATE: As far as I can tell, there is nothing in any of this proposed legislation which would immunize the Administration from future investigation or criminal liability for its past law-breaking. I doubt Congress even has the power to immunize the Administration from liability, and it certainly couldn't bar a future investigation into these matters. Howard Dean issued a warning yesterday to Republicans (h/t to a scared Kathryn Jean Lopez) reminding us of why that is so significant:

"I am not ready to say we will take back the House and Senate,'' Dean said in an interview. "But we will take back the House and probably the Senate if we run a national campaign.'' If Democrats do gain control, he said, Republicans should expect to be investigated: "If we get subpoena power'' in congressional committees, "the corruption will come out on America's TV screens, and that scares the daylights out of the Republicans.'' he said.

Continuing to pound these scandals in order to persuade the public of their significance is of vital importance both because there is an election only 7 months away and because if, as it appears it will, that election ends the one-party rule under which we live, all of these matters can be aggressively investigated and pursued, and serious consequences imposed on the Administration, no matter what the GOP Congress does now.

Democrats will have a hard time agreeing on some broad policy programs and alternative vision to sell to the electorate by November. But they don't need to have that. Americans are tired of Republican rule and have abandoned the President. Restoring some balance back to our government and ending the increasingly corrupt, unchecked one-party rule of our country will be, in my view, more than enough for Democrats to at least take over the House. By itself, that will ensure that the landscape shifts dramatically and that the Administration will be called to account for their multiple acts of law-breaking -- or, as George Bush is fond of saying in another context, it will ensure that "they are brought to justice."

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