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, June 09, 2006

A new low -- the Senate seeks to "pardon" the President for past lawbreaking

by Glenn Greenwald

Observing and commenting on the behavior of Arlen Specter is one of the most unpleasant obligations a person can have, but for anyone following the NSA eavesdropping scandal specifically, and the Bush administration's abuses of executive power generally, it is a necessary evil. The principal reason that the Bush administration has been able to impose its radical theories of lawbreaking on the country is because Congress, with an unseemly eagerness, has permitted itself to be humiliated over and over by an administration which does not hide its contempt for the notion that Congress has any role to play in limiting and checking the executive branch. And few people have more vividly illustrated that institutional debasement than Arlen Specter, who, along with Pat Roberts, has done more than anyone else to ensure that Congress completely relinquishes its constitutional powers to the President.

Congressional abdication is so uniquely damaging because the Founders assumed that Congress would naturally and instinctively resist encroachments by the executive, and the resulting institutional tension -- the inevitable struggle for power between the branches -- is what would preserve governmental balance and prevent true abuses of power. But for the last five years, Congress has done the opposite of what the Founders envisioned. They have meekly submitted to the almost total elimination of their role in our Government and have quietly accepted consolidation of their powers in the President.

If the Congress is unmoved by their constitutional responsibilities, then at least basic human dignity ought to compel them to object to the administration's contempt for the laws they pass. After all, the laws which the administration claims it can ignore and has been breaking are their laws. The Senate passed FISA by a vote of 95-1, and the McCain torture ban by a vote of 90-9, and it is those laws which the President is proclaiming he will simply ignore. And yet not only have they not objected, they have endorsed and even celebrated the President's claimed power to ignore the laws passed by Congress. And that failure, more than anything else, is what has brought us to the real constitutional crisis we face as a result of having a President who claims the power to operate outside of, and above, the law.

A bill proposed yesterday by Arlen Specter to resolve the NSA scandal -- literally his fifth or sixth proposed bill on this subject in the last few months -- would drag the Congress to a new low of debasement. According to The Washington Post, Specter has introduced a bill "that would give President Bush the option of seeking a warrant from a special court for an electronic surveillance program such as the one being conducted by the National Security Agency." This proposal is the very opposite of everything Specter has saying for the last several months:

Specter's approach modifies his earlier position that the NSA eavesdropping program, which targets international telephone calls and e-mails in which one party is suspected of links to terrorists, must be subject to supervision by the secret court set up under the Foreign Intelligence Surveillance Act (FISA).

A law which makes it "an option" -- rather than a requirement -- for the Government to obtain a warrant before eavesdropping is about as meaningless of a law as can be imagined.

But that complete change of heart by Specter is not even nearly the most corrupt part of his proposed bill. For pure corruption and constitutional abdication, nothing could match this:

Another part of the Specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law.

The idea that the President's allies in Congress would enact legislation which expressly shields government officials, including the President, from criminal liability for past lawbreaking is so reprehensible that it is difficult to describe. To my knowledge, none of the other proposed bills -- including those from the most loyal Bush followers in the Senate -- contained this protective provision. And without knowing anywhere near as much as I would need to know in order to form a definitive opinion, the legality of this provision seems questionable at best. It's really the equivalent of a pardon, a power which the Constitutional preserves for the President. Can Congress act as a court and simply exonerate citizens from criminal conduct?

The sole provision of this rancid bill which seems to have any value or purpose is this one: one which "would consolidate the 29 cases that have been filed in various federal district courts challenging the legality of the NSA program and give jurisdiction over them to the Foreign Intelligence Surveillance Court of Review, which was established by FISA. Any decision of that court would be subject to Supreme Court review and otherwise would be binding on all other courts." While a judicial ruling on the legality of the administration's conduct would be nice and all, it is a somewhat empty gesture if those who broke the law are first immunized from liability for their misconduct.

What makes this proposed amnesty so particularly indefensible is that Specter himself has spent the last two months loudly complaining about the fact that he -- along with the rest of the country -- has been denied any information about how this illegal, secret eavesdropping has been conducted. Has that power been abused? Has it been exercised for political, rather than national security, reasons? Before one even considers shielding those responsible for this lawbreaking from liability, wouldn't one have to at least know the answer to those questions?

Excess attention on Specter's role in all of this should be avoided. As easy -- and as justifiable -- as it is to express contempt for Specter's inevitable, craven submission to the dictates of the Bush administration, it is also indisputably true that no Senator other than Russ Feingold has done more than Specter to keep the issues of the president's lawbreaking in the news and to prevent a quick sweeping under the rug by the administration of this scandal. Specter's constant complaints have at least kept reporters talking about these issues. If one wants to really attack Specter, one should first answer this question -- where are all the great, heroic Senate Democrats who are standing up to the administration on these issues in a way that Specter isn't? They don't exist. While Specter does nothing more than make some noise, at least he has been doing that.

And while Specter always falls obediently into line with the administration in the end, most Senators, of both parties, begin from that position, particularly with regard to matters of national security and executive power. Specter is the most vivid illustration of Congressional debasement, but he is hardly the only example. Anyone with doubts about that should go and review how the Democrats reacted to Sen. Feingold's introduction of an extremely mild resolution to simply censure the President for breaking the law.

Specter receives substantial criticism because of the flamboyant way in which he engages in what can only be described as sado-masochistic rituals with the administration. He pretends to exercise independence only to get beaten into extreme submission, and then returns eagerly for more. It is as unpleasant to watch as it is damaging to our country. But Specter's unique psychological dramas should not obscure the fact that it is the entire Congress which has failed in its responsibilities to take a stand against this President's lawbreaking and abuses, and there is plenty of blame to go around in both parties. The reason the President has been allowed to exert precisely the type of unrestrained power which the Founders sought, first and foremost, to avoid, is because the Congress has allowed him to.

The Post article suggests that the Specter bill is likely to attract the support of the President's loyalists in the Senate such as John Kyl, as well as the administration itself. Will any Democrats other than Russ Feingold object to the effort by the Senate to shield the President and his administration from liability for past lawbreaking? Will the media discuss in any meaningful way the rather extraordinary development of the Senate literally placing the President above the law by declaring that he cannot be punished for his patently illegal acts against Americans? We are at the point we're at because the Congress and the media have been so eager to allow the President free reign to do what he wants. This new Specter bill drags the country to a still new level of lawlessness. We will soon see if there are any limits to the willingness of Congress and the media to tolerate and endorse transparent attacks on our system of government.

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