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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.

Thursday, June 15, 2006

Specter falsely denied proposing amnesty for the Administration's illegal eavesdropping

Last Friday, Walter Pincus of the Washington Post reported that Sen. Arlen Specter had proposed legislation which included blanket amnesty for anyone who has violated FISA, i.e., a "provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law."

That same day, the ACLU issued a Press Release objecting that Specter was trying "to win administration support by . . . creat[ing] a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s direction under a claim of inherent authority." These reports created a limited but intense backlash -- there was abundant fury in the blogosphere over the notion that Congressional Republicans would attempt to shield the president and his aides from criminal liability arising out of their illegal eavesdropping conduct, and CNN's Jack Cafferty said that Specter "has turned out to be yet another gutless Republican worm cowering in the face of pressure from the administration and fellow Republicans. "

But almost immediately, that controversy became extremely confused and muddled because Specter went on CNN on Sunday and categorically and unambiguously denied the truth of these reports. When asked directly by Wolf Blitzer if he had proposed "blanket amnesty to anyone who authorized these wiretaps," Specter said:

Absolutely not. That was an erroneous report. If anybody has violated the law, they'll be held accountable, both as to criminal conduct and as to civil conduct. And in no way did I promise amnesty or immunity or letting anybody off the hook.

As I wrote on that day, the absoluteness of Specter's denial made it seem likely that the Post had simply erred in its reporting. Although both the Post and the ACLU reported that his legislation contained such a provision, Specter so categorically denied on national television that he had done any such thing, something he seemed unlikely to do if his proposed legislation really did contain such amnesty. This conflict could not be resolved over the weekend -- or until today -- because Specter's marked-up legislation referenced by the Post was not publicly available and, therefore, could not be reviewed to determine whether Specter was telling the truth.

I have now obtained (with the help of the ACLU) a copy of Specter's marked-up proposed legislation (.pdf), which makes quite clear that Specter simply was not telling the truth when he denied proposing amnesty to the administration. The bill in question was one which Specter substituted last week in the Judiciary Committee for the prior legislation he proposed back in March (the reason the new version was not available online was because -- according to the ACLU -- he introduced it only in the Committee, but not yet on the Senate floor).

In sum, Specter's legislation amends the provision of FISA which provides for criminal penalties, and then, astonishingly, makes those revisions retroactive all the way back to 1978 (when FISA was enacted). The effect and almost certainly the intent of those revisions is to immunize the President and anyone acting under his authority from criminal liability for violating FISA -- just as the Post and the ACLU correctly reported, and just as Specter falsely denied.

Section 801 of Specter's legislation is entitled "Executive Authority," and it specifically amends the criminal punishment provision of FISA (which is Section 109(a), (50 U.S.C. 1809(a)), as follows:

(1) General . . .

(B) FISA. -- Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended --

(i) in paragraph (1), by inserting "or under the constitutional authority of the executive" after "authorized by statute"; and

(ii) in paragraph (2), by inserting "or executed under the constitutional authority of the executive" after "authorized by statute."

(2) Retroactive effect -- The amendments made by paragraph (1) shall be construed to have the same effective date as the Foreign Intelligence Surveillance Act of 1978.

Currently, Section 109(a) of FISA provides that "A person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute . . . ." That means that anyone who eavesdropping on Americans without complying with the warrant requirements of the statute (FISA) is committing a felony. To amend this provision to include the phrase "or under the constitutional authority of the executive" after "authorized by statute," makes it legal to eavesdrop not only in compliance with FISA (i.e., by obtaining a warrant), but also under the "constitutional authority" of the President to engage in warrantless eavesdropping even if that warrantless eavesdropping is prohibited by FISA (which it is).

Put another way, since 1978 in this country, there has been only one way to legally eavesdrop on Americans -- by complying with FISA. This amendment adds a second way to legally eavesdrop on Americans -- without warrants, under the President's direction. And astonishingly, the amendments are made retroactive all the way back to 1978, which means that the President's illegal behavior during the last four years in ordering eavesdropping without complying with FISA's requirements will be cleansed of their criminal nature and made legal, as a result of this newly created "second way" of legally eavesdropping on Americans.

To make matters even clearer, Section 801 of Specter's proposed bill specifically provides that "Nothing in this Act shall be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities or communications of any person reasonably believed to be associated with a foreign enemy of the United States." That language tracks precisely the language used to define the parameters of the warrantless eavesdropping program, and it makes crystal clear that its intent is to declare legal the NSA program. And that provision is one of the provisions that has retroactive application back to 1978, which means the Specter bill goes back in time -- 28 years -- and transforms FISA from a statute which has always regulated the president's eavesdropping power into one which places no limits on that eavesdropping power of any kind.

I have already written about why retroactive amnesty is so pernicious and is a true sign of lawlessness. And I've also set forth the reasons why it is constitutionally dubious, at best, for Congress to attempt to retroactively legalize plainly criminal conduct on the part of our highest government officials by simply retroactively changing the criminal law to comport with their behavior. There is no point in repeating those arguments here, which really ought to provoke all sorts of outrage.

But what is extremely noteworthy -- and worth emphasizing -- is that Arlen Specter amended his legislation to include the most extremist provision imaginable (retroactive amnesty for criminal behavior), all in order to please the President's allies on the Judiciary Committee (led by Sen. Kyl) -- who, as always, are marching to the dictates of the White House, which obviously is willing to accept new FISA legislation only if it provides them with immunity from criminal prosecution for their lawbreaking.

But even more notable still is the fact that after engaging in this behavior, Specter went on national television and dishonestly denied that he was doing that. I suppose it's theoretically possible (although highly unlikely, to put it mildly) that Specter, a lawyer and former prosecutor, does not realize that his legislation contains an amnesty provision. Or perhaps he thinks there is some strained semantic justification for distinguishing this provision from what he means by "amnesty" (I could devise a couple of arguments to support such a distinction, but none which are anything other than patently frivolous -- see, for instance, here and here). But what seems far more likely -- really the only reasonable scenario -- is that Specter was so embarrassed by his amnesty provision once the Post revealed it that he simply denied that his legislation contained it even though it so plainly does.

Specter's dishonesty aside, these shenanigans reveal what the White House is really after. Their Senatorial minions are going to support NSA legislation only if it contains full amnesty for the lawbreakers in the administration. The White House will then "reluctantly" agree to a newly revised FISA, and will have full immunity from criminal prosecution. Specter will be the primary sponsor of this, and the media will drool over his "maverick" status and suggest that it's unreasonable to argue that Specter is acting as the obedient White House shill that he always, in the end, becomes. If even the independent, rule-of-law-loving Specter advocates amensty, then doesn't that show that it's reasonable?

The White House insists that it has clear legal authority for warrantless eavesdropping, so why are retroactive amendments to FISA's criminal provisions necessary at all? And if we stand by and allow the Republicans in Congress to legislatively exonerate the President and his aides from breaking the law, it is hard to imagine what we won't stand by and tolerate. If the President can break the law and then use his party's control over the Congress to grant him legislative immunity from the consequences of his criminal behavior, no hyperbole is required to say that the rule of law exists only as an illusion.

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