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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, January 17, 2007

Nothing to celebrate

(updated below - updated again with correction)

My specific analysis of the legal and political issues surrounding the FISA story is here, but I want to make one broad point. Having read around the blogosphere and elsewhere, what emerges is that there is no way to discern exactly what this new framework is between the administration and the FISA court because the only evidence describing it is Gonzales' letter, which is quite vague in a number of respects about exactly what has happened.

But ultimately, there are only two options -- (1) the administration is now complying fully and exclusively with FISA when eavesdropping, in which case all of its prior claims that it could not do so and still fight against The Terrorists are false, or (2) the administration has changed its eavesdropping program some, but it is still not fully complying with FISA, in which case nothing of significance has changed (at least on the lawbreaking issues) because the administration is still violating the law.

The FISA court and the administration cannot reach an agreement for proceeding that deviates from the FISA law itself. So it is only one or the other of the two options, neither of which reflect well on the administration.

Having said that, I have to say that I find the celebratory tone that I have seen here and there to be quite odd and unwarranted. There is nothing to celebrate here. We shouldn't be grateful when the administration agrees to abide by the law. That is expected and required, not something that occurs when the King deigns that it should and we then celebrate that he has agreed to comply with the laws we have enacted. Moreover, the administration has been violating the criminal law -- i.e., committing felonies -- for the past five years in how they have been eavesdropping on us.

I know that everyone except for the shrill, partisan hysterics has all implicitly agreed that it's impolite and overheated to talk about the criminality involved here -- "hey, whatever the President did, he had a good faith basis for doing (after all, there are lawyers who say so!) and, anyway, he just did it to protect us" -- but the President has been breaking the criminal law on purpose and systematically because he wanted to.

The fact that he might have decided he should stop -- now that his loyal servants no longer control the Congress, a federal judge already ruled he violated the Constitution and the criminal law, an appellate court was about to hold arguments about that decision, and there might actually be consequences now springing from his behavior -- does not excuse his lawbreaking in the slightest and must not be allowed to shield him or anyone else from accountability.

There is no repentance here, nor (more importantly) is there any rescission of their claimed powers of lawbreaking. Quite the contrary. Gonazles' letter affirms, as one would expect, their belief that they were legally entitled to violate this law. That means (a) that they can violate it again at any future point when they want to, (b) they can violate other laws under the same theories, and (c) whatever other lawbreaking is already occurring as a result of those theories is not going to stop.

This "reversal" merely proves what we already knew -- that there was never any legitimate reason to violate FISA in the first place, and that all of the claims about how they had to in order to stop The Terrorists were complete fiction (claims which, just incidentally, they tried to use to win the last election; if you wanted to make them comply with FISA, it meant that you loved the Terrorists).

But this is the same President and the same administration wielding their same theories of lawbreaking and oozing disregard for any limitations on their power. This seems designed to placate anger and to make everyone believe that our crisis is over. In our gratitude that the President relented, we're all supposed to forgive and forget.

They have been doing this all along. Every time they are about to face consequences for their conduct, they stop doing what they are doing and find another way. When the Supreme Court was about to rule on the legality of their detention of Jose Padilla, they transferred him to a criminal court and finally charged him, then told the court that the questions were "moot." When the Supreme Court in Hamdi ordered them to give Hamdi (a U.S. citizen) a venue to charge him with a crime and prove his guilt, they simply let This Extremely Dangerous Terrorist go free instead of charging him.

This is what they do and how they always operate. They have not conceded anything and they have certainly not done anything which mitigates their lawbreaking -- their crimes -- over the past five years with regard to eavesdropping without warrants.

UPDATE: Or, as a pleasantly (surprisingly) clear-thinking and resolute Chuck Schumer put it, from Salon's Tim Grieve:

Sen. Chuck Schumer takes a significantly different tone in a statement of his own, saying that Bush's decision "flies in the face of the fundamentals of American justice, which, when the balance of power is divided, require that these things should be done with full debate, and with full review." Schumer says the Gonzales announcement "can give little solace to the American people, who believe in the rule of law and ask for adequate judicial review. And why it took five years to go to even this secret court is beyond comprehension."

It sounds like Schumer might have decided to stop listening to the Beltway Democratic geniuses who kept telling them that they have to let the President break all the laws he wants and trample all over Congress otherwise Americans will think they are weak.

UPDATE II: Sen. Schumer is not a member of the Judiciary Committee that will be hearing from Attorney General Gonzales tomorrow, but as Senator Feingold is. Here is Feingold's reaction (via e-mail):

For more than five years, the President has conducted an illegal program, including more than a year during which he publicly asserted that this violation of the law was absolutely essential to protecting the public from terrorists. I am pleased that the President has been forced to return to the law and that this program has been terminated.

I continue to have many questions about what the Foreign Intelligence Surveillance Court has decided and intend to scrutinize carefully how the Court has interpreted the FISA statute. In addition, while I welcome the decision to stop conducting surveillance without judicial approval, the President now needs to respond fully to legitimate congressional questions about the complete history of this now-terminated illegal program.

As Feingold (unsurprisingly) recognizes, the President's claimed willingness to abide by FISA from now on does not even slightly obviate the need for a full-scale investigation into the last five years of illegal eavesdropping activities (and he's also right that much more information is needed about this still quite vague "agremeent" between the FISA court and the administration).

The reason we don't allow Presidents to eavesdrop without judicial oversight is because when Presidents were free, pre-FISA, to eavesdrop in secret, they invariably abused that power -- all of them. Therefore, it only stands to reason that having enacted a law (in response to these discoveries of abuse) which permits broad eavesdropping but only with judicial oversight, and having learned that the President disregarded that law and instead eavesdropped on Americans in secret (for five years), it is imperative that we find out whether that power was abused.

UPDATE III: Orin Kerr, among others, is speculating that perhaps the FISC-Bush agreement means that the FISA court has given its approval to the warrantless eavesdropping program as a whole -- i.e., that it has ruled that the "Terrorist Surveillance Program" (as is or in some slightly modified form) is authorized by FISA and that the FISA court need not scrutinize individual, case-by-case warrant applications. Instead, so this suggestion goes, the FISA court has simply given its blessing to the entire "TSP" by ruling that the program, in its current form, meets the requirements of FISA (Kerr excitedly lauds this possibility as "a very clever move by the DOJ"). Others who (unlike Kerr) are not impressed but angered by that manuevering also think that is a possibility (and Wired's Ryan Singel has what perhaps appears to be the most likely possibility -- along with some astute analysis -- here).

Kerr (and everyone) is simply speculating about what happened, as he acknowledges, but it is a possibility. As I indicated, the only evidence we have of what happened here is Gonzales' letter and it is quite vague (there is also Tony Snow's "responses" on this issue in his briefing, which were completely bereft of substance and add nothing helpful).

What is important to note is that if this event had happened in January, 2006 -- rather than January, 2007 -- we would never know what the secret FISC-Bush agreement was, because the Congressional Republicans would not have wanted to know -- they'd be perfectly happy, even grateful, to be kept in the dark -- and they would have prevented any inquiry. But they have now been removed from power (in part because of their gross abdication of their oversight responsibility). As a result, the administration will not be able to keep their secret little deal secret for long. We don't need to speculate about it because, as a result of the last election, we have a semblance of open government again and we will learn soon enough what really happened here. That is what Feingold means when he says "intend[s] to scrutinize carefully how the Court has interpreted the FISA statute."

Though Kerr can barely contain his delight (see below) at the prospect that this whole thing is one big illusory concession because all that happened was that the FISA court approved of the TSP (he gives four reasons why such a move would be so "very clever"), Congress isn't going to just sit passively by (the way it has for the last six years) and allow the President free rein over the country.

If what happened here is what Kerr is hoping -- some sort of agreement to give broad authority to the President's plainly illegal program -- then that is an agreement which would be plainly inconsistent with both the letter and spirit of FISA. Congress will have many options in that case and it seems clear, at least from the reactions of Feingold and Schumer, that the agreement which Kerr thinks is such a "very clever move by the DOJ" will -- if that is really what happened -- prompt more problems for the administration than it solved.

UPDATE IV: Kerr emailed to say that my statement above -- in which I indicated that he would be "delighted" if the agreement is what he speculated it to be -- was inaccurate, because he believes such an agreement may violate FISA and, if that were so, he would not support it. My belief that he seemed to support the agreement was based upon his praise for its cleverness, but one can find something to be "very clever" and still oppose it. He is right that there was no real basis for concluding that he would be "delighted" by that outcome, so I rescind that characterization of his views and apologize for the inaccuracy.

In a new post, he also offers an alternative theory, based on a DOJ briefing -- that "it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants" (whereby the court agrees in advance that where "a specific set of triggering facts occurs," eavesdropping is permitted). Such a framework would seem unnecessary given the 72-hour window for warrantless eavesdropping, and would also seem to conflict with FISA (the premise of which is that a court should oversee the eavesdropping itself and scrutinize the claimed need, not simply promulgate standards and leave it to the Executive to interpret and apply them), but we should know soon enough once Gonazles testifies what the basis for this agreement is.

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