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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, September 14, 2006

Weapons for stopping the Specter bill

Anyone who, over the past five years, has placed hopes in the Congress -- and especially the Senate -- to stand up to the President, particularly with regard to policies ostensibly justified by terrorism, has encountered one bitter disappointment after the next. It is difficult to find any period in American history burdened by a more impotent and submissive Congress.

For that reason, substantial skepticism has already arisen concerning the prospects for preventing enactment of the White House's Specter bill. Democrats (and GOP opponents of this bill) have real weapons to use in order to defeat it, if they are willing to shed their irrational, destructive fear of opposing this weak and unpopular President.

Given how well-positioned Democrats are to oppose this bill -- and, more importantly, given how vital it is that Democrats finally show the country that they can take a resolute stand on critical issues (like, say, the rule of law, and protecting Americans from presidential eavesdropping abuses) -- I began with the (admittedly optimistic) assumption that Democrats would be open to meaningful resistance to this bill. But then I read this NYT article this morning by Eric Lichtblau and Kate Zernike:

Democrats have allowed Republicans to fight among themselves over the [FISA and Guantanamo] issues, and appear willing to allow the issues to come to a vote rather than risk charges of political obstructionism in an election season . . . .

The administration had also faced resistance over the N.S.A. wiretapping program. The Democrats had bottled up the administration’s proposals, saying Congress was being forced to legislate “in the dark” about a secret program that few members had been briefed on. They have repeatedly used procedural maneuvers to block the proposals from coming to a vote in the Judiciary Committee, drawing accusations of obstructionism from Republicans.

But Democrats, who appeared to realize the risk of being accused of thwarting debate on national security matters, did not stand in the way of the committee vote on Wednesday.

Who knows if that's really an accurate reflection of the fears which are consuming Senate Democrats on FISA issues, but it certainly does sound like them (although my guess is that Judiciary Committee Democrats allowed a vote on the Specter bill only in exchange for the Committee's also sending the competing -- and far superior -- Feinstein-Specter bill to the full Senate for a vote). What does an opposition party do exactly if it doesn't "obstruct" a weak and unpopular President from shoving extremist legislation down the country's collective throat?

Whatever else is true, there are numerous potent weapons (substantively potent and politically potent) available to Democrats to defeat the Specter bill:

(1) To oppose the Specter bill, Democrats need not merely "obstruct," but can also advocate their own legislation which strengthens presidential eavesdropping powers. That's because, along with the heinous Specter bill, the Senate Judiciary Committee yesterday sent to the Senate floor a competing bill co-sponsored by Dianne Feinstein and Arlen Specter (the bill he co-sponsored before he capitulated to the White House). That bill [a copy is here (.pdf); my analysis of it is here] is something Senate Democrats can vigorously advocate, so that they are not merely "obstructing."

The whole point of the Feinstein-Specter bill is to strengthen eavesdropping. The Senate Judiciary Committee sat in one hearing after the next listening to critics of FISA complain that it was too restrictive and cumbersome in various ways, so this legislation fixes all of the alleged flaws in FISA (by, for instance, increasing the warrantless period from 72 hours to 7 days, streamlining the warrant process, allowing immediate warrantless eavesdropping without the AG's approval). At the same time, it prevents eavesdropping abuses by mandating that all eavesdropping continue to be conducted only with FISA court oversight, thus preventing secret presidential spying on Americans.

The Feinstein-Specter bill fixes every claimed problem that exists with FISA. It allows full-scale eavesdropping on terrorists. Thus, there is only one possible reason to oppose that bill -- namely, because what the President really wants is to eavesdrop on Americans in secret and with no judicial oversight. That is what the debate is about, not about whether the President can eavesdrop on terrorists. That is an easy argument to make, as Sen. Feinstein's own Release demonstrates, and as Sen. Leahy demonstrated with his defense of that legislation in David Stout's NYT article yesterday (Leahy: Feinstein-Specter bill "ensure(s) that the U.S. intelligence community can continue to operate and protect the nation with the necessary F.I.S.A. court oversight").

(2) There is genuine and substantial opposition to the Specter bill among many Congressional Republicans -- either because they want to show real opposition to this unpopular President for political reasons (can Democrats please take note of that fact) and/or because they genuinely oppose vesting in the President the unlimited power to eavesdrop on Americans. This morning's reasonably (and uncharacteristically) thorough article from The Post's Jonathan Weisman makes this important point:

In the House, the Judiciary Committee was forced to scrap a planned drafting of a warrantless surveillance bill, in part because nearly half a dozen Republican conservatives were in open rebellion against GOP leaders' efforts to weaken controls on the eavesdropping program.

"There are enough Republicans with concerns," said Rep. Jeff Flake (R-Ariz.), who was pushing bipartisan legislation that would all but scuttle the warrantless surveillance program. "Once you basically give the president this authority, it's very difficult to pull it back. That's very shortsighted just to point out the differences between Republicans and Democrats."

Additionally, just last week, three perfectly conservative Republican Senators (Craig, Murkowski, and Sununu) joined with three Senate Democrats (including conservative Democrat Ken Salazar) to announce their opposition (.pdf) to the Specter bill without first holding hearings to address serious objections they have.

Protecting Americans from unlimited spying by the Government is not a "liberal" position, but --- as polls have continuously shown -- appeals to a wide cross-section of Americans (FISA, after all, was approved in 1978 by a 95-1 vote in the Senate).

Republicans need to show that they are not rubber-stamps for the President's wish list. Democrats can and should work with the Republicans who are genuinely opposed to unlimited presidential eavesdropping, and simultaneously pressure those Republicans whose electoral chances depend upon standing up to the President. Recruiting and/or forcing Republicans to oppose the Specter bill will dilute the type of political attacks Democrats (irrationally) fear and, if successful enough, could even enable defeat of this bill by a majority vote, without the need for a filibuster.

(3) The complete lack of information about warrantless eavesdropping is an alternative ground for opposing the Specter bill, or at least (following the example of the letter from the 6 Senators) to force a delay in the vote until after November.

This is a critical and overlooked point. When the Senate Intelligence Committee in March disgracefully refused (by a party line vote, needless to say) to hold hearings in order to investigate the President's warrantless eavesdropping program, we were told that the Senate would nonetheless be exercising robust oversight as a result of a new Subcommittee that was formed (with 4 Republicans and 3 Democrats) which would have full briefings on how the NSA program works, including who has been eavesdropped on, how many people were eavesdropped on, how they were selected, etc.

As it turns out (oh-so-surprisingly), the administration has completely stonewalled even this Subcommittee, leaving them with virtually no knowledge at all about the NSA program that they are now being asked to legislatively approve. As Laura Rozen notes, even the normally meek and passive Jay Rockefeller (who is on the Subcommittee) has complained "that the Administration has not been able to document convincingly the benefits of the program" because:

“For the past six months, I have been requesting without success specific details about the program, including: how many terrorists have been identified; how many arrested; how many convicted; and how many terrorists have been deported or killed as a direct result of information obtained through the warrantless wiretapping program.

“I can assure you, not one person in Congress has the answers to these and many other fundamental questions,” Rockefeller stated emphatically.

Sen. Feinstein, who is also on the Subcommittee and has thus received those same briefings, has made a related point: "I have been briefed on the terrorist surveillance program, and I have come to believe that this surveillance can be done, without sacrifice to our national security, through court-issued individualized warrants for content collection on U.S. persons under the FISA process."

How can Congress even consider voting on legislation regarding warrantless eavesdropping when the Bush administration has refused to fulfill its commitment to provide briefings even to the select Intelligence Subcommittee, and Congress thus knows virtually nothing about warrantless eavesdropping, how it has been used, and whether it is necessary?

(4) The absurdities of both the Specter bill and Specter's defense of it could fill a book, literally. But there is a new one that needs to be noted. When Specter announced his bill, he proclaimed that he won a huge concession because the President (as part of a side, oral deal, which is conditioned on there not being a single change to the bill) "consented" to having a court rule on whether his NSA program was unconstitutional. That claim was inane from the beginning, because we don't actually have a country where our political officials have to "consent" to have courts decide if their conduct is unconstitutional or otherwise illegal. The "rule of law" means that courts rule on the legality of the conduct of government officials even if they don't "consent" to such a ruling.

But now Specter's defense of his bill is even more clearly frivolous, since a court has now ruled -- without the President's consent (actually in the face of his explicit objections) -- that the NSA program is unconstitutional and, independently, is in violation of the criminal law. Nobody needs the President's "consent" to "allow" a court to rule on the program's legality because courts can rule and are ruling on whether the program is legal even without the President's permission. The Specter bill does nothing but give away power and authority to the President while getting nothing in exchange.

* * * * * *

I'll be on The Majority Report with Sam Seder tonight at 7:45 p.m. EDT to discuss these matters.

Also, there is a blogger conference call this afternoon with Sen. Harry Reid which I (and hopefully other bloggers) intend to use to press him on the need to stop the Specter bill by any means necessary. We'll see how serious Senate Democrats are soon enough. Stopping this bill is of incomparable importance and not nearly as difficult or politically "risky" as they likely think it is.

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