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, November 10, 2006

Coming attractions

What was it that we were always told by Bush followers every time the Bush administration successfully dragged the country yet another step towards extremism and radical lawlessness? I believe the phrase was "elections have consequences." Indeed they do.

Eric Lichtblau has an article in this morning's New York Times as pleasing to the ear as any Mozart symphony:

The Bush administration escalated its defense of the National Security Agency’s domestic wiretapping program on Thursday, even as Democrats in Congress vowed to investigate the program aggressively once they assume power. . . .

But Democrats sounded impatient to begin getting more answers after what they characterized as 11 months of stonewalling by the administration since the program was publicly disclosed last December.

“This administration first hid its domestic spying program from Congress and Americans for years, and when it was discovered, has ducked and weaved on its legal justifications,” said Senator Patrick J. Leahy of Vermont, who is to become chairman of the Senate Judiciary Committee when Democrats take control.

Republicans have held out hope of getting such legislation approved by the full Congress during the lame-duck session, and Mr. Bush pushed anew on that front Thursday, calling passage an “important priority in the war on terror" . . . .

Emboldened by their electoral victory, Democrats said they believed it would be all but impossible for the Republicans to pass wiretapping legislation before the current Congress adjourns, or to win approval of separate legislation immunizing telephone companies from liability over their cooperation in wiretapping operations.

“There’s no chance of that happening,” predicted a senior Democratic aide for the House Judiciary Committee, who spoke only on condition of anonymity because he was not authorized to discuss the issue.

Indeed, rather than move to authorize the program, Democrats said they would push in January to investigate how the program had been run and would seek legislation to restrict or ban outright the use of wiretaps without warrants.

Let's just repeat that -- "rather than move to authorize the program, Democrats said they would push in January to investigate how the program had been run . . . . "

There are three joyous things to note about this long passage:

(1) the article quotes Arlen Specter's views of this whole matter, but I don't need to include them in the excerpt because soon-to-be-former-Chairman Specter is completely irrelevant;

(2) the article prominently includes -- as do I -- the views of soon-to-be-Chairman Pat Leahy, because his desires with regard to whether investigations will proceed are all that matter; and

(3) there is no need to desperately search around for one of the so-called "moderate GOP Senators" to provide some glimmer of always-illusory hope that they will perform a miracle and dissent from the Leader, because while they are welcomed in the work to restore our system of checks and balances, they are no longer needed (and, in any event, I have no doubt that many of them learned from this election -- as they watched one comrade after the next be removed from the Congress -- that voters want independence from the Leader).

Elections have consequences. With elegant understatement, the article also includes this:

“If Congress has some hearings and digs into this, we may know a lot more,” said Cindy Cohn, legal director of the Electronic Frontier Foundation, which is suing AT&T.

Indeed, we might. Right now, we don't actually know anything about how the administration has used the secret, illegal eavesdropping powers it seized for itself, because the program has been kept secret from the Congress, because the GOP-controlled Intelligence Committee vowed to investigate and then decided not to, and because the administration has repeatedly breached its promises to disclose information about the program and Intelligence Committee Chairman Pat Roberts (another vulgar phrase never to be uttered again) allowed them to do so with impunity.

Presumably, there is some reason why the administration has been so eager to conceal all of this information about the NSA program and to block any investigation. Under our system of government, that's what Congress is for -- finding out. And it seems that Democrats understand that. From The LA Times:

"The American people sent a clear message that they do not want a rubber-stamp Congress that simply signs off the president's agenda," said Rep. John Conyers Jr. (D-Mich.), who is in line to become chairman of the House Judiciary Committee. "Instead, they have voted for a new direction for America and a real check and balance against government overreaching." . . .

Now that they have the power of the subpoena, Democrats expect to be able to get the administration's attention. A number of senior Democrats have complained that the administration has ignored their inquiries.

Apparently, Democrats are according yesterday's "demand" by the President that the Terrorist Surveillance Act be passed by the lame duck Congress all of the respect it merits. And it is truly a miraculous sight -- almost surreal -- to read that the Democrats are going to block the President from having his "national security" wishes granted and instead investigate what he has been doing.

It actually feels like we have more than one branch of government again. The days of listening to the President make demands and then reading all of the GOP Committee Chairmen say what a superb idea it was and stress how important it is to do everything the President wants as quickly as possible seem to have come to an end. Much vigilance is required with regard to the Democrats -- that should not be overlooked -- and the administration will undoubtedly resist in all sorts of ways, but this is a superb start to restoring the basic mechanics of our system of government.


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