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, July 14, 2006

What will Democrats do in the wake of the Specter cave-in?

(updated below)

Following up on yesterday's post regarding Arlen Specter's complete (and hardly unexpected) cave-in to the administration on the NSA scandal, it is now clear that the bill does not have an express amnesty provision in it (see Update II). But every other possible bad thing can and should be said about this bill. Marty Lederman has an excellent and very thorough statutory analysis of the whole travesty, explaining that Specter "introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more."

Jack Balkin's post is also very much worth reading, in which he concludes: "Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more."

In essence, Specter's bill repeals each and every restriction on the President's ability to eavesdrop, all but forecloses judicial challenges, and endorses the very theory of unlimited executive power which Hamdan just days ago rejected (and in the process, rendered the administration's FISA-prohibited eavesdropping on Americans a clear violation of the criminal law). With this bill, Specter -- the self-proclaimed defender of Congressional power -- did more to bolster the administration's radical executive power theories than anything the administration could have dreamed of doing on their own, especially in the wake of Hamdan (permit me here to apologize for all of those times I tepidly defended Specter by characterizing as unduly pessimistic and cynical predictions that he could cave completely; the humiliations he is willing, even eager, to publicly endure are without limits).

The question now is what Democrats (who, by the way, still have filibuster power) are willing to do about this. Here is Lederman's suggestion:

I hope this bill is the non-starter that it deserves to be. If so, allow me to make one more plea here: Everyone behind the Schumer bill, please! Let's get the question of NSA legality before the Supreme Court right now, and after that we can worry about how to amend FISA in a responsible manner sensitive to changing needs, such as perhaps along the lines of the models suggested by David Kris or in Jane Harman's bill.

More important than the legislative question, in my view, is what the Democrats are willing to do about this politically. It should not be hard, even for them, to make the case that everyone is in favor of eavesdropping. The only question is whether (a) George Bush should be able to eavesdrop on Americans in secret and with no oversight, or (b) George Bush can eavesdrop on Americans, but only with a requirement of judicial oversight - a requirement which every President, without complaint, has complied with for the last 30 years, including Ronald Reagan at the height of the Cold War.

With just the smallest amount of resolve and message discipline, they can easily convey that this is not a debate about whether to eavesdrop on Al Qaeda -- everyone is for that -- but is about whether George Bush should have the power to eavesdrop on Americans with no oversight, an awesome power which this country overwhelmingly decided 30 years ago, in the wake of decades of abuses, that we do not trust the President -- any President -- to have. This is yet another long-standing safeguard against abuses of executive power which the Bush administration is uprooting -- in the process, changing the kind of nation we are.

Polls uniformly show that Americans are concerned about unchecked one-party rule and want a restoration of accountability and balance. This is the perfect debate for Democrats to have, to finally articulate why this country should turn over one or both of the houses of Congress to them. The case needs to be made that what is needed in this country is a counterweight to the corruption and excesses which come from having the President's party control all parts of government and thereby allow the President to exercise power without limits. Providing that balance, that check on one-party rule, is what Democrats can do best and even reach agreement on amongst themselves. They can provide oversight and limits on the Government's conduct and on the Republicans' unchecked abuses of power.

Isn't that what Democrats want to convince Americans they will do if they win in November? And what better issue to illustrate that intention than this Republican effort to radically change how our Government spies on us? The genius Democratic consultants, joined by the genius Beltway journalists at The New Republic and on cable shows, will, of course, counsel oh-so-knowingly, and oh-so-worriedly, that Democrats should stay away from opposing this bill because (as always) they'll be doing Karl Rove such a big favor by allowing him to portray Democrats as opposing eavesdropping on terrorists, by shifting the debate to the Republican's strongest ground of terrorism, and every other prong of conventional wisdom that gets trotted out during these discussions to urge Democrats not to stand in the way of what the President wants. And Republican pundits and strategists will, as always, echo this theme, boasting that they are eager for Democrats to oppose them on this because nothing could help Republicans more than if they do, etc. etc.

But all of that can happen only if Democrats fail to resolutely stand up for themselves and articulate what is really at stake here. If they do, they can make this issue about what it really, in fact, is about: (a) do we want the President to be able spy on us in secret and with no limits or safeguards, as we had before 1978 with great abuse?; and (b) do we really need to abolish the long-standing safeguards which, as a country, we imposed on our Government in order to prevent abuses, all because George Bush claims he can't defeat Al Qaeda unless we fundamentally change how our government works, allow him to spy on us without oversight, and give him unchecked power?

It is critical to note that the radical change here is the one the Republicans are advocating. They want to abolish long-standing limits -- which were supported by a consensus of Republicans and Democrats alike (FISA was approved by a Senate vote of 95-1) -- on how our Government spies on us. This is yet another fundamental change to our Government designed to give more unchecked power to George Bush, this time in how he spies on our conversations. Most Democrats haven't been able to get themselves to engage that debate as of yet (see, for instance, the extremely short list of co-sponsors for Russ Feingold's Censure Resolution), but if they aren't willing to do that now, when will they? And if they aren't willing to convince Americans that some safeguards and checks are needed on Republican power, what reason do they plan on giving Americans as to why they should win in November?

UPDATE: The media's reports on this travesty illustrate, yet again, that the single greatest problem our country faces -- the principal reason the Bush administration has been able to get away with the abuses it has perpetrated -- is because our national media is indescribably lazy, inept, dysfunctional and just plain stupid, for reasons discussed in this comment from Jao and my response.

The reporters who write on these matters literally don't understand the issues they are reporting, even though the issues are not all that complicated. Notwithstanding the fact that this bill expressly removes all limits on the President's eavesdropping powers -- and returns the state of the law regarding presidential eavesdropping to the pre-FISA era, when there were no limits on presidential eavesdropping of any kind -- Charles Babington and Peter Baker told their readers in The Washington Post -- in an article hilariously entitled: "Bush Compromises On Spying Program" -- that "the deal represented a clear retreat by Bush" and that "the accord is a reversal of Bush's position that he would not submit his program to court review."

Anyone with a basic understanding of what FISA was and of the conflicts in play could read the Specter bill and see that the last thing it does is entail "compromises" on the part of the White House. Nobody who knows how to read could read that bill and think that. At this point, I believe they don't even read the bill. It's hard to see how they could read the bill and then write that article. Instead, it seems that they just call their standard sources on each side, go with the White House-Specter assessment that this is some grand "compromise" on the ground that it is a joint view of both warring sides, and then throw in a cursory ACLU quote somewhere at the end just to be able to say that they included some opposing views. But the reporters who are writing about this - and I mean the ones writing in the pages of our country's most important newspapers - don't actually have any idea what they're talking about.

Babington is the same reporter who falsely told his readers on the front page of the Post in March that the Republican "compromise" bill from the Senate Intelligence Committee (offered in lieu of an actual investigation into the NSA program) entailed substantial Congressional oversight of the program, even though a quick reading of the actual bill would have revealed that it entailed no such oversight. Representatives from Sen. DeWine and Snowe's office apparently told him what great oversight their bill provided and so he printed as fact what he was told.

After bloggers pointed out this error, the Post, several days later, was forced to issue a correction (appended to the top of the original article). But the same thing that happened there is happening here - Republican Senators and White House representatives with a vested interest in how the story gets reported characterize the bill in a certain way, and then lazy, uninformed reporters like Babington uncritically regurgitate that version as fact in the newspaper.

As Jao observed in his comment, the damage here is that it becomes conventional wisdom that this bill is now some sort of "compromise" on the part of the White House, such that beltway journalists and other types will simply assume that it's some sort of moderate, middle-of-the-road result which only extremists and obstructionists would oppose. The reality, of course, is the opposite: this bill bolsters the President's theories of unlimited executive power beyond Dick Cheney's wildest dreams. But the media, as is so often the case, fails in its duty to inform Americans as to what the Government is actually doing, which then prevents anything from actually being done about it. For every instance of presidential abuse of power or profound policy failure over the last five years, that dynamic is a major cause.

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