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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, September 13, 2006

The Specter bill much closer to being enacted today

(updated below)

The Senate Judiciary Committee voted today on various proposals relating to the Specter FISA bill, as well as the other competing FISA bills pending before the Committee. This report from the AP's Laurie Kellman, published in The Washington Post, is completely unclear about what happened, but the gist of it seems to be this:

Senate Republicans blocked Democratic attempts to rein in President Bush's domestic wiretapping program Wednesday amid a sustained White House campaign to give the administration broad authority to monitor, interrogate and prosecute terrorism suspects.

While refusing to give the president a blank check to prosecute the war on terrorism, Republicans in the Senate Judiciary Committee kept to the White House's condition that a bill giving legal status to the surveillance program pass unamended.

By voice vote and roll calls, Republicans defeated Democratic amendments to insert a one-year expiration date into the bill and require the National Security Agency to report more often to Congress on the standards for its domestic surveillance program.

That report suggests that Democrats proffered a series of amendments designed to soften the Specter bill, but each was rejected by a 10-8 party line vote. I have no idea what Kellman means when she claims that Republicans are "refusing to give the president a blank check to prosecute the war on terrorism" (when haven't they done that?), and that phrase -- giving the president a blank check -- is really the best way to describe what the Specter bill does with regard to eavesdropping powers.

But today, I received this release from the ACLU which paints a somewhat different picture. It reports that the Specter bill -- along with both the DeWine bill and the Specter-Feinstein bill -- all passed the Senate Judiciary Committee by a 10-8 vote (the Specter and DeWine bills were passed by straight party line vote, while the Specter-Feinstein bill had the support of the 8 Democrats plus Sens. Specter and Lindsey Graham).

Those three bills are mutually exclusive, so one can presume (although the ACLU release doesn't say and the AP report makes no mention at all of those events) that the Committee decided to pass all three bills along to the Senate floor so the full Senate can decide what it will do.

JustAnObserver, who comments regularly here and over at Volokh, among other places, is one of the most knowledgeable commentators anywhere on these issues and he recently wrote this superb and highly informative summary in a comment here of the major features of all of the pending FISA bills. I have written about the Specter bill here and here and A.L wrote about it here; I wrote about the DeWine bill here and here, and the Specter-Feinstein bill here.

Given that the events of today are somewhat unclear and I am mostly surmising what happened, it seems as though the Judiciary Committee decided to pass on all three bills to the full Senate floor, rather than embrace the Specter bill in full, for this reason, reported by AP:

Specter, sponsor of one administration-backed bill, acknowledged that GOP lawmakers fighting for re-election may not embrace a measure bearing Bush's stamp of approval.

"It is popular to have bills that are not White House bills," Specter, R-Pa., told reporters recently.

Specter was referring specifically to the fact that a competing (and slightly more restrictive) FISA bill which was introduced by GOP Rep. Heather Wilson -- who is in a tough election fight in her closely divided New Mexico district -- has been endorsed by the GOP House leadership and is opposed by the White House. The House Intelligence Committee, on which Wilson sits, was scheduled to mark-up the Wilson bill today, but the AP reports that that session was cancelled for unknown reasons. Clearly, there is all sorts of intense White House lobbying going on and they are trying to finesse passage of the Specter bill as is.

From what I can discern, the Senate Judiciary Committee essentially passed on responsibility to the full Senate to save the Bush administration by enacting the Specter FISA bill, while simultaneously blocking Democratic efforts on the Committee to dilute the most offensive parts of the Specter bill. Democrats have been reluctant to pay much attention to the Specter bill, but the way in which it (a) abolishes all limits on the President's eavesdropping powers; (b) embraces the Bush administration's most radical executive power theories; and (c) virtually destroys the ability to obtain judicial review for the President's lawbreaking, renders it a bill that is at least as pernicious as anything else that is pending. It deserves full-scale attention and opposition.

UPDATE: This article from The New York Times doesn't add much information but it does confirm the explanation I provided above: "Indeed, the Judiciary Committee voted today to send other provisions to the Senate floor for debate, even though they are not wholly compatible with the Specter-White House agreement." The Times also says that "many Democrats are sure to try to derail or amend the measure when the Senate takes it up," but the only way to really put a stop to this travesty is with a filibuster (assuming, as is wise, that House Republicans cease being a real impediment).

Democrats should have no fear of that -- most polls show that Americans want limits and oversight on this administration, and it is not difficult finally to make the case that this debate is not about whether there will be aggressive eavesdropping on terrorists (since FISA, just like every other proposal, allows that), but whether the Bush administration will be able to eavesdrop on Americans in secret and with no judicial oversight, precisely the situation that brought us decades of severe eavesdropping abuses by presidents in both parties.

UPDATE II: As I've documented many times -- the most recent such documentation here -- the notion that Democratic opposition to warrantless eavesdropping will "help Republicans" is transparently false Rovian bravado that has been empirically disproven time and again. As I document here, the opposite is true -- most Americans oppose warrantless eavesdropping, and the throngs of Americans who have abandoned the President are not going to stream back to Republicans based on a non-existent desire to see the President have the power to eavesdrop on Americans with no oversight.

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