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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, July 21, 2006

Defeating the Specter bill

(updated below)

Yesterday's significant judicial defeat of the Bush administration in the EFF/AT&T NSA case underscores just how pernicious the Specter FISA bill is, and how urgent it is that it not be enacted. It has been clear for some time that both the federal district judge in the EFF case, as well as the judge in the ACLU case pending in the Eastern District of Michigan, are unwilling to simply roll over and offer the administration the type of blind deference which the Congress and even other courts have been willing to extend in the area of national security. As a result, these cases threaten to subject the administration to that which it fears most: judicial review of its behavior.

The Specter bill -- in addition to its other multiple flaws -- would solve this problem almost entirely for the administration. Section 702(b) of the bill (entitled "Mandatory Transfer for Review") protects the administration in numerous ways from meaningful judicial review:

First, it requires (if the Attorney General requests it, which he will) that all pending cases challenging the legality of the NSA program (which includes the EFF and ACLU cases) be transferred to the secret FISA court. Thus, the insufficiently deferential federal judges would have these cases taken away from them. Second, it would make judicial review of the administration's behavior virtually impossible, as it specifically prohibits (Sec. 702(b)(2)) the FISA court from "requir(ing) the disclosure of national security information . . . without the approval of the Director of National Intelligence of the Attorney General." That all but prevents any discovery in these lawsuits. Third, it quite oddly authorizes (Sec. 702(b)(6)) the FISA court to "dismiss a challenge to the legality of an electronic surveillance program for any reason" (emphasis added). Arguably, that provision broadens the authority of the court to dismiss any such lawsuit for the most discretionary of reasons, even beyond the already wide parameters of the "state secrets" doctrine.

When the Specter bill was first announced last week, it appeared it would be politically difficult to block its enactment. The only real impediment to a legislative resolution of the NSA scandal has been Specter's inability to induce the White House to agree to any proposal. Once Specter obligingly crafted a bill which gives the White House everything it could possibly want and then some, the White House finally agreed to allow Specter to legalize its program, and it was hard to see how a bill which has the support both of the White House (and therefore all White House Senate allies) and Specter could be derailed.

But this article this morning from the Washington Post's Dan Eggen (one of the best journalists on this story) suggests that the Specter bill may already be experiencing some significant problems. It begins by noting that the Specter bill was one "personally negotiated by President Bush and Vice President Cheney" -- a fact that I had not seen reported previously and which reflects just how important it is for the President to have a legislative solution which protects his from the consequences of his illegal eavesdropping behavior.

Eggen also clearly recognizes that the claim by the Post and other newspapers last week that the Specter bill is a "compromise" is false, and was merely the self-serving characterization peddled by the parties involved (which, thanks to Eggen's gullible colleagues, became the lens through which the Specter bill was described):

The proposal was billed as a rare and noteworthy compromise by the administration when unveiled last week. But the legislation quickly came under attack from Democrats and many national security experts, who said it would actually give the government greater powers to spy on Americans without court oversight.

Eggen reports today that the Specter bill "ran into immediate trouble this week, as Democrats and other critics attacked the proposal while key GOP leaders in the House endorsed a different bill on the same topic." The plan of both Specter and the White House appeared to be to push a quick vote by the full Senate on this bill. Barbara O'Brien was on a conference call with the ACLU this week and reported that Specter "is determined to bring his bogus bill . . . to a vote this week." But according to Eggen, that plan is now derailed:

Specter, chairman of the Senate Judiciary Committee, canceled a markup session for his proposal that had been scheduled for yesterday. He announced instead plans instead (sic) for a full committee hearing Wednesday on the Foreign Intelligence Surveillance Act (FISA), the 1978 statute at the center of the debate.

One problem, according to Eggen, is that key House Republicans who either are facing tough re-election campaigns or who are looking for fights with the White House -- including Heather Wilson, Pete Hoekstra, and Jim Sensenbrenner -- have introduced mildly less deferential legislation than Specter's bill (virtually everything, by definition, is less deferential), and have made some noises that they would not support Specter's bill. Additionally, even generally accommodating Democrats such as Jane Harman have, at least thus far, expressed relatively steadfast opposition to the Specter bill, although it is unclear whether any Democratic support would be necessary to enact this bill (Senate Democrats, however, could and should filibuster this legislation).

There is still a real chance to derail the Specter bill. When it was announced, the shining "concession" which Specter touted was the White House's verbal, highly conditional "promise" to submit the question of the constitutionality (not the legality, but only the constitutionality under the Fourth Amendment) of warrantless eavesdropping to the FISA court (something which the bill does not actually require). But the White House's agreement to submit this question to the FISA court was conditioned upon there not being any changes at all to the Specter bill in its current form -- something that seems unlikely if House Republicans continue to push their own legislative solution and key Democrats continue to object to the Specter bill. As the Post put it on the day the agreement was announced:

If Congress amends the bill in any way that Bush disapproves, he will not be obligated to submit the wiretap program to the FISA court for review, Specter said.

More significantly, there is far more media attention being paid to executive power abuses than ever before. Not only the editorial page of the New York Times, but also the much more pro-administration Washington Post editorial page, have urged defeat of the Specter bill in unusually emphatic terms. Articles decrying the administration's executive power abuses are now common. Even David Broder yesterday took notice of the Bush administration's radical executive power theories and the total Congressional abdication of any oversight role, but he proclaimed: this "is beginning to change."

In terms of the political climate for these issues, today is a much different -- and better -- world even as compared to three months ago. Discussions of Bush's executive power abuses are no longer confined to blogs, the Boston Globe, and the office of a Senator from Wisconsin. That there is a pressing need for checks to be imposed on the Bush administration's limitless claims to power is now a mainstream and widely recognized view. Media elites finally understand it and political officials can discuss these matters with much less resistance than before.

Many Republicans who are facing tough re-election battles, such as Rep. McDonald, need to demonstrate that they do not simply roll over for the White House. Democrats have an opportunity to impose a serious defeat on the White House by taking a real stand against this truly destructive Specter bill. It is not difficult to make clear that opposition to the Specter bill is not an anti-eavesdropping position, but simply a desire to preserve the safeguards and checks and balances which our country has had for the last 25 years and with which all Presidents before the current one -- Republican and Democrat alike -- easily complied without complaint while defending the nation.

The Specter bill is a true menace to checks and balances on the executive branch, to the restoration of the rule of law, to the critical constitutional principles re-affirmed by the Supreme Court in Hamdan, and to the fundamental principle that political officials who break the law must be held accountable. It would also return the country to the pre-FISA era when the executive branch could eavesdrop on Americans with no meaningful oversight or limits, a situation which led to widespread abuse. It is critical that this bill be blocked and, surprisingly, there seems to be real opportunities to do just that. The question now is whether Congressional Democrats, and/or key Republicans, will seize that opportunity.

UPDATE: I have an article regarding many of these issues in the current issue of In These Times -- entitled "Rechecking the Balance of Powers" -- and it is now available online. The article discusses the Bush administration's manipulation of the "state secrets" doctrine, its general efforts to block all methods for judicial review of its actions, and the effect which Hamdan will have on these tactics as well as on the administration's radical theories of executive power generally.

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