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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, May 16, 2006

GOP Senators block judicial review of NSA program

A front-page article in this morning's The Hill reports that Sen. Specter has finally made enough concessions to secure the support of the more right-wing members of the Judiciary Committee for his legislation that (along with a bill from Sen. DeWine) would render legal the NSA warrantless eavesdropping program. As part of this negotiation, what were these Bush allies (Hatch, Sessions, Cornyn, Kyl) holding out for? The removal from Sen. Specter's bill of a clause that would mandate that the FISA court rule on the legality and constitutionality of the NSA program. As usual, the thing which Bush supporters fear most - and which they most desperately seek to avoid - is a judicial ruling on the legality of the administration's behavior. As The Hill reports:

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency’s (NSA) surveillance program, GOP sources say.

Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.

Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.

Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense.

An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.

Could anything be more obvious at this point than the fact that the Bush administration deeply fears having the legality of its eavesdropping activities adjudicated by a federal court? They have engaged in one maneuver after the next to prevent that adjudication.

One would think that if they really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.

Without the provision which was originally "demanded" by Sen. Specter, it is basically impossible for any plaintiff to ever challenge the legality of the NSA program. In very general terms, in order to have standing to bring such a suit, a plaintiff would have to prove that they have been specifically injured by the warrantless eavesdropping beyond the injuries of an average citizen. But the program is secret and there have been no investigations into it. As a result, nobody knows whose calls have been intercepted without warrants.

Therefore, any would-be plaintiff would be immediately trapped in the type of preposterous, bureaucratic Catch-22 in which American law specializes and which the Bush administration is eager to exploit -- namely, since nobody knows whose conversations have been eavesdropped on, nobody could ever make the showing necessary to maintain such a lawsuit, and since the administration claims that all such information is highly classified, the evidence necessary to make that showing can never be obtained. Thus, in the absence of the provision in Sen. Specter's bill, the administration would be able, in virtually all circumstances, to block a ruling on the legality of the NSA eavesdropping program:

[GWU Law Professor Mary] Cheh said plaintiffs would likely have to jump over very high hurdles to have their cases heard. The administration could, for example, invoke the “state-secrets privilege” and deny plaintiffs access to information, or it could try to deny plaintiffs’ legal standing. Cheh said it would be difficult for plaintiffs to demonstrate in court that they have been injured by the surveillance program because the program is secret.

There are other ways for the legality of this program to be challenged. For instance, a criminal defendant who can prove that evidence being used by the Government against him was derived from the illegal eavesdropping program can challenge the admissibility of that evidence, which, in turn, would require a court to rule on the legality of the eavesdropping program (because if the program is illegal, no evidence derived from it is admissible). But in such a case, the administration -- as they have done so many times before -- could simply drop the case or agree not to use the evidence in question, as a way of avoiding a ruling as the legality of the NSA program. Sen. Specter's bill was the sole mechanism to ensure that a federal court would rule on the legality of the administration's eavesdropping conduct -- which is precisely why its loyal soldiers on the Judiciary Committee refused to agree to any bill that contained that provision.

It is always worth noting that nothing in any of these bills immunizes the administration from being held accountable for its previous and ongoing violations of FISA. These bills simply render legal on a going forward basis warrantless eavesdropping. They do not make these programs retroactively legal.

Additionally, due to an independently revealing fact, we are far away from any resolution of this issue:

The agreement appears to pave the way for the committee to approve Specter’s bill and one sponsored by Sen. Mike DeWine (R-Ohio) granting the surveillance program legal authority. GOP aides say the chances of the bills’ reaching the Senate floor this year are unknown because of a crowded schedule and the dwindling number of workdays left this session. . . .

The panel had been expected to mark up Specter’s and DeWine’s bills Thursday but, instead, the committee will work on legislation on same-sex marriage. Two prominent conservative leaders, Dr. James Dobson of Focus on the Family and Tony Perkins of the Family Research Council, met Senate Majority Leader Bill Frist (R-Tenn.) and Assistant Majority Leader Mitch McConnell (R-Ky.) last week.

The delay of the markup on the NSA-related bills could imperil the compromise on the Specter and DeWine bills. The longer the agreement has to last before committee action, the more likely it is to be mulled over and picked apart, a GOP aide said.

Right now, many Bush allies in the Senate are far too busy with the critically important task of mollifying their political boss, James Dobson, by pretending to engage in another election year effort to constitutionalize the laws of marriage. As a result, they don't have time for petty matters such as legislation governing how the NSA collects foreign intelligence and spies on American citizens. As a result, even if Specter and the Bush allies on the Judiciary Committee can reach an agreement as to how to bestow the administration's illegal eavesdropping program with a shield of legality, it is far from certain that any of this will be resolved before November.

In the meantime, maybe some enterprising reporters somewhere could start asking administration officials - and their stalwart Senate allies - why it is that they are so eager to avoid a judicial ruling on the legality of this program if they are so confident that the president did nothing wrong. People who are unjustly accused of violating the law are eager to have their name cleared. Why isn't the president?

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