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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, June 21, 2006

Serious rumblings and awakenings in Congress

by Glenn Greenwald

(updated below)

There were two very significant -- and encouraging -- Congressional developments in the last twenty-four hours relating to the NSA scandal:

First, as reported first this morning by Raw Story, the House Judiciary Committee today approved by voice vote a resolution "requesting" that the Justice Department and the President "turn over all requests made by the National Security Agency and other federal agencies to telephone service providers to obtain information without a warrant." The adoption of this resolution was completely unexpected, and received the support of Republican Committee Chair James Sensenbrenner, who had previously excoriated the Administration for "stonewalling" Congressional investigations into their surveillance activities on Americans.

The request is aimed at the data-collection program revealed last month by USA Today. As Raw Story reported, Rep. John Conyers praised the resolution as follows: "I am pleased that the House Judiciary Committee is exercising its oversight authority and demanding real answers of the Administration." The ACLU similarly praised the House Committee demand as an unexpected though significant step by the Congress to assert meaningful oversight on the administration's lawless surveillance programs aimed at Americans.

Secondly, and I think even more significantly, the House last night overwhelmingly passed (by a vote of 407-19) the Defense Appropriations Act for 2007 (H.R. 5631), which "falls $4 billion below the president's overall funding request for the Pentagon in the upcoming fiscal year." The Administration has threatened to veto (.pdf) the legislation if it "significantly underfunds the Department of Defense to shift funds to non-security spending" and/or because the White House claims that multiple provisions -- needless to say -- "interfere with the President's constitutional authority as Commander in Chief."

But far more significantly than the House's adoption of this legislation was the introduction last night of an amendment by four co-sponsors -- two Republicans and two Democrats (Flake, Inglis, Schiff and Van Hollen) -- "that would cut off funding for illegal wiretapping conducted by the National Security Agency." The amendment specifically provided "that none of the funds appropriated in the bill can be used to conduct electronic surveillance in the United States except pursuant to the criminal wiretapping statutes and the Foreign Intelligence Surveillance Act (FISA)."

Amazingly, the amendment came very close to passing, as the ACLU reports:

The Judiciary Committee’s move comes on the heels of a 207 - 219 vote in the full House of Representatives last night narrowly rejecting an amendment that would have removed all funding for a related program in which thousands of Americans in the U.S. are eavesdropped upon by the NSA acting without a warrant. Twenty-three Republicans broke with the administration to back the amendment.

The roll call vote on the amendment is here. Only 15 Democrats voted "no." Unsurprisingly, Jane Harman was one of the few who voted "no" (as was Jack Murtha -- underscoring, yet again, the sheer idiocy of claims by Bush apologists that he is some sort of leftist fringe pacifist dove). But by and large, the Democratic caucas held together on this rather extraoardinary amendment, and substantial numbers of Republicans supported it as well.

It has been more than six months since The New York Times revealed that President Bush ordered eavesdropping on American citizens in violation of the criminal law. Virtually all national politicians and media figures, not to mention scores of pro-Bush bloggers, boastfully predicted that the entire matter would be swept away and easily resolved long before now. But it hasn't been and isn't close to being resolved, and there are slow, steady rumblings that more and more members of Congress are becoming less willing, not more, to allow the President to seize all governmental power.

These developments happen slowly and incrementally, and it therefore seems as though nothing is happening. But scandals of this type take time and significant effort to unfold. An amendment to cut off all funding for the warrantless eavesdropping program -- something unmentionable a few months ago -- almost passed the House last night, and had more than a handful of Republicans supporting it. And the Republican-led House Judiciary Committee spontaneously directed the Justice Department and the President to turn over all documents relating to efforts to "induce" telephone companies to provide calling data on Americans.

Even the most impatient and cynical among us must acknowledge that those are surprisingly encouraging developments. One of the oddest aspects of the President's lawlessness has been the degree to which members of Congress have been willing to endure such severe institutional humiliations by essentially being written out of our Government -- the opposite of what the Founders assumed would occur simply by virtue of basic human nature and dignity, which they believed would inevitably engender fights against efforts to render any one particular branch irrelevant. Perhaps Congress is slowly beginning to regain some dignity and purpose and insist upon imposing some limits on the President's monarchical powers.

UPDATE: The judiciary is also showing some incipient signs that it exists. In the litigation brought against AT&T in a San Francisco federal court challenging the legality of AT&T's cooperation with the Bush administration's warrantless eavesdropping program, the administration -- as always -- demanded that the court dismiss the entire litigation, and refuse to adjudicate any of the issues, on the ground that adjudication will risk the disclosure of critical "state secrets." Yesterday, the district court judge presiding over the case, Vaughn R. Walker, issued an Order (.pdf) requiring the parties to answer eleven questions about this claim, which: (a) illustrate the frivolous nature of the Bush administration's argument (see e.g., numbers 6 and 7) and (b) strongly suggest that the court is very reluctant to dismiss the lawsuit (h/t to the always resourceful EJ).

For exactly that reason, and because the district court judge in the Michigan case brought by the ACLU has also been insufficiently obedient to the administration, the administration yesterday requested that all cases relating to the legality of the NSA warrantless eavesdropping program be transferred to, and consolidated, in one single court, with one single judge, in Washington, DC, so that all of these issues can be decided at once (and so that they can be removed from these two irreverent judges). The administration is obviously scared that these judges are exercising some independent thought and asserting the right to actually adjudicate accusations that the President has violated the law. As I have always believed, the more branches of this scandal, taking root in more places, the better.

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