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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.

Tuesday, September 26, 2006

Will the Congressional calender preserve some basic liberties (at least until January?)

(updated below)

This new AP article by Laurie Kellman reports that there are too many competing Republican FISA bills to reconcile in time, and too many other competing issues (such as the urgent need to vest the power of torture and permanent detention in the President), and that Congress is likely to run out of time this session before it can get a warrantless eavesdropping bill passed. If this report is true, and it actually turns out to be the case that FISA will remain in place exactly as is going into the November elections (meaning that the President's warrantless eavesdropping program will continue to be criminal), that will be the best news out of Washington in some time.

It is sadly illustrative that this "best news in some time" is the by-product of the realities of the Congressional calender rather than any principled or heroic stance taken by our political leaders. But at this point, one has to take one's victories where and how one can get them.

Last week, I wrote that "delay" was the best hope for blocking enactment of a FISA bill prior to adjournment and explained why achieving that goal would be so beneficial:

These developments are all rather murky, but for precisely that reason, one clear fact appears to be emerging: the odds are rather low that there will be a legislative solution at all to the NSA scandal before Congress adjourns in nine days, and the odds of the dreaded Specter bill being enacted by both houses are even lower.

Their failure to get a FISA bill passed at all would be a real defeat for the White House. It would mean that warrantless eavesdropping would still be illegal going into the next Congress. It would mean that various lawsuits challenging the legality of the NSA program would continue undisturbed. And it would mean that the administration's legal liability (both civil and criminal) for eavesdropping on the conversations of Americans in violation of the law would still very much be an open question -- an issue that would provide rich and ample ground for investigation by a subpoena-power-endowed Chairman Conyers, or even a Chairman Leahy.

Blocking the Specter bill from being enacted is a non-negotiable imperative, and Sen. Reid's vow that it would never be enacted is looking more realistic by the minute. But preventing a Congressional solution of any kind to the NSA scandal -- particularly one that authorizes warrantless eavesdropping by the Bush administration -- is almost as important. There are only nine days left, and preventing a legislative resolution would be a very significant victory for those who believe in the rule of law and who want to see government officials held accountable for their lawbreaking.

Of course, a victory by the Republicans in November would mean that none of this matters, since they would just presumably enact a FISA bill when they return which (among other destructive results) legalizes the President's warrantless eavesdropping program. But a victory by Democrats in even one of the Congressional houses would likely mean that such a bill will not be enacted and, even more importantly, a real investigation could (and likely would) commence into exactly how (and to what extent) the administration has been violating the criminal law for the last five years in eavesdropping on Americans without judicial approval.

It is always possible for all of the obstructionist Republicans to capitulate quickly and agree on a bill to legalize warrantless eavesdropping this week. After all, one should never underestimate the capacity of Congressional Republicans to snap into line. But for procedural reasons if no others, it seems highly unlikely that there will be time in this session for Congress to give the President the legal authority to eavesdrop on Americans with no judicial oversight. That is a real cause for celebration among advocates of the rule of law.

(Alas, the news isn't all good, since the same article reports what is now indisputably clear: "More likely to win passage by the end of the week is Bush's other legislative priority: a bill agreed upon by the White House, the House and Senate governing how terror suspects are to be detained and questioned.")

UPDATE: Tomorrow's NYT article makes clear that there will almost certainly be no warrantless eavesdropping bill passed before the Congress adjourns, reporting that Congress is "all but giving up hope of agreeing on a final bill to authorize the administration’s eavesdropping program." It continued:

Lawmakers in both the House and Senate said it now appeared doubtful that bills covering the National Security Agency’s eavesdropping program could pass both houses and be reconciled before Congress adjourns this weekend, an outcome that would deny Republicans one of the main achievements they hoped to take into the election.

There are many details in the article about both the eavesdropping legislation as well as the torture bill (which the article suggests is close to passing). I will write more about these issues tomorrow, but for now, will simply pass this passage along (WARNING: Do not read this if you have trouble sleeping at night after encountering severe anger or stress):

Democrats, who have found themselves on the losing end of the national security debate the past two national elections, said the changes to the bill had not yet reached a level that would cause them to try to block it altogether.

"We want to do this," said Senator Harry Reid of Nevada, the Democratic leader. “And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution.”

One more time -- Harry Reid, Senate Democratic Leader, what is your view on the White House-McCain-Warner-Graham torture/lawless-detention bill? "We want to do this."

It has been painfully obvious ever since the torture "compromise" was announced that Democrats would not get near a real filibuster, but are we really going to have to be subjected to large numbers of Democratic Senators actually voting for this atrocity and even cheering it on? It looks that way.

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