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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, July 13, 2006

The Specter-White House FISA agreement

(updated below - updated again)

The Associated Press is reporting that Sen. Arlen Specter has reached agreement with the White House on a bill acceptable to both of them to render legal the currently illegal warrantless eavesdropping program. I am writing something today on a deadline -- actually past a deadline -- which I promised would be done today, so I may not have time to post on this (or the Hamdan developments from yesterday) until tomorrow. But I am certain that many people will have things to say about this in Comments, so I am posting this to enable that discussion. If I can post more later, I will.

I haven't seen the legislation, but based on the reports of it I've read, the biggest question, in my view, is whether it contains the amnesty -- the retroactive shield from prosecution -- which Specter's last proposed FISA-related bill (.pdf) provided (the existence of which he dishonestly denied on national television). If anyone has a link to the bill itself, please post it in comments (or e-mail it).

UPDATE: The Specter bill is here and here (the first link is the bill he proposed several weeks ago, and the second link contains the amendments to that bill as of July 11) (h/t la'ikoa). From my preliminary read, the bill as it exists today would not only legalize warrantless eavesdropping going forward, but would also purport to retroactively legalize the administration's warrantless eavesdropping back through 1978 - meaning that the criminal behavior which the administration has engaged in for the last five years would suddenly and magically become legal.

I say this because the provisions of the Specter bill which, as I explained here, provide such retroactive de-criminalization (Section 801), are not changed in any meaningful way through the July 11 amendments. If that is the case, enactment of this bill into law would be a travesty of unparalleled proportions, for reasons I explained here:

The idea that the President's allies in Congress would enact legislation which expressly shields government officials, including the President, from criminal liability for past lawbreaking is so reprehensible that it is difficult to describe. To my knowledge, none of the other proposed bills -- including those from the most loyal Bush followers in the Senate -- contained this protective provision. And without knowing anywhere near as much as I would need to know in order to form a definitive opinion, the legality of this provision seems questionable at best. It's really the equivalent of a pardon, a power which the Constitutional preserves for the President. Can Congress act as a court and simply exonerate citizens from criminal conduct?

The Supreme Court in Hamdan just made clear that the President's legal defenses for eavesdropping on Americans in violation of FISA are baseless. That means that the President has been violating the criminal law, and continues to do so. What possible rationale is there for Congress to immunize him from liability by retroactively rendering legal his criminal conduct? If political officials can violate the law, and then have their Congressional allies enact new laws to magically turn their crimes into legal acts, then the rule of law, by definition, does not exist.

UPDATE II: As always with these proposed bills, there is now some confusion as to exactly what the latest version does provide.

The July 11 amendments which I linked to above do not alter the retroactive legalization provisions from Specter's last version -- which would mean this bill does provide amnesty. But the ACLU just e-mailed me what they are calling the "Final Specter bill" -- meaning the bill described by news reports today -- and the version they sent to me (which is not yet available online) does not contain the retroactive provision. It does amend the penalty provisions of FISA so that it would now be permissible -- going forward -- to eavesdrop either under FISA or "under the constitutional authority of the executive." But at least from what I can tell, it does not contain that pernicious provision making that amendment retroactive to the 1978 enactment of FISA, the way the prior Specter bill did.

Nonetheless, the ACLU has issued a letter (also not yet available online) in which they say this (emphasis in original):

For the following primary reasons, the ACLU urges all Senators to vote against the substitute for S. 2453 and speak out against it:

Congress Should Not Pardon the President for Violating Criminal Laws against Government Wiretapping without a Court Order.

The bill would amend section 109 of FISA, 50 USC § 1809, which imposes a criminal penalty of up to five years in jail and a $10,000 fine for wiretapping Americans without a court order. It would accomplish this by allowing wiretapping at the direction of the president outside of FISA, accepting the theory that the president has inherent constitutional authority to wiretap without judicial oversight. It would also amend the criminal code, 18 USC §§ 2711(2)(e) and (f), to make it legal to
wiretap outside of FISA at the direction of the president.

In so doing, Senator Specter’s bill would expressly create a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s discretion, acquiescing to the president’s claim of inherent constitutional power, unless and until a court intervenes. Little could be more damaging to the rule of law than effectively pardoning President Bush and his aides, and in the process returning our nation to the dark days before Watergate when President Nixon spied at will on journalists, government employees, and ordinary Americans.

Although the ACLU accuses the Specter bill of providing a "pardon" for the President's prior criminal conduct -- and also of "expressly create(ing) a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s discretion" -- it seems they are criticizing the bill's recognition of the President's inherent authority to eavesdrop going forward. There is no reference to any express provision providing for retroactive de-criminalization of past violations of FISA, which leads me to believe that it is not, in fact, in this bill, or else the ACLU would emphasize it in their opposition.

I know this is all less than clear, but between figuring out which version of the bill is the current one, and which provisions it contains, the matter itself is unclear. But it seems to me now that although there is a (weak) argument to make that this bill provides retroactive legalization, it does not do so in the explicit sense that the prior Specter bill did. Instead, it merely enables the administration to claim that Congress is now recognizing the administration's inherent authority to eavesdrop -- a point which, even if true, would not (as Hamdan and Youngstown made clear) excuse the administration's exercise of that power in the face of a Congressional statute which imposes limitations on the power.

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