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, September 20, 2006

Serious problems for the White House in the NSA scandal

(updated below)

Many people are debating whether the "conflict" among Republicans over the detainee/ interrogation bill is part of some grand Rovian political plan (to make Republicans appear as though they are independent and willing to stand up to the President, to ensure that scary pictures of Khalid Shaikh Mohammed rather than piles and piles of bodies in Iraq dominate the news, etc.). Regardless of one's views on that question, one thing is beyond dispute at this point: the White House's plan to resolve the NSA scandal by obtaining amnesty for past lawbreaking and future legislative blessing for its warrantless eavesdropping program has veered far off course and, at least for now, appears genuinely imperiled.

First, via the Heretik, is this admittedly odd but plainly significant report from the AP's Laurie Kellman, which begins by claiming (not all that accurately) that "President Bush's embattled anti-terrorism agenda has some new momentum from a House member [GOP Rep. Heather Wilson] who has rewritten her warrantless wiretapping bill more to his liking." The article then proceeds to report facts which make clear that we are far from a legislative solution on FISA, and that these events are anything but "to the Presidetn's liking."

Although the focus for stopping the Specter/FISA bill has been on the Senate, the White House has a substantial problem in the House as well, where Wilson -- a member of the House Intelligence Committee and Chair of a key Intelligence Subcommittee -- has been touting (with the support of the House Leadership) her own bill that is more restrictive than the Specter bill (though still far more permissive of warrantless eavesdropping than is tolerable). In sum, Wilson's bill would legalize warrantless eavesdropping but still keep the program within the FISA framework and require far greater Congressional oversight than the White House wants.

Wilson discovered this newfound resistance to the White House agenda only because she is in a very close re-election battle in her evenly divided District where the President is unpopular, which makes it unlikely that she will capitulate completely to the President after opposing his FISA plan in such a public way. But the AP article reports that Wilson "is swapping her original bill giving legal status to Bush's domestic surveillance program with one that would grant a key administration request . . . ." The article also claims that in exchange for this concession, she has added much more stringent oversight and Congressional notification requirements now included in her bill.

None of this makes much sense. Leaving aside the details of the Wilson bill, even with the "concession" Wilson agreed to, it is very difficult to imagine her bill -- which, unlike the Specter bill, actually purports to restrict the circumstances under which the President can eavesdrop without warrants on Americans -- would ever be acceptable to the White House. Whatever might be going on with the Wilson bill seems more likely to clog up, rather than facilitate, any Congressional-White House agreement. The Wilson framework itself (given that it purports to restrict the President's eavesdropping powers) is not acceptable to the White House and negotiations over its wording -- particularly if it entails greater oversight and reporting requirements -- is not going to change that.

And then there is this report from the Post's Charles Babington and Jonathan Weisman about serious problems the White House is encountering in the Senate:

On another front, legislation to authorize Bush's warrantless wiretapping program may be in more jeopardy. Frist said yesterday that he referred the warrantless surveillance matter to the Senate Select Committee on Intelligence for further review and would not bring it up for Senate consideration until next week.

[Incidentally, just to get a sense for how little reporters actually know despite their authoritative tone, compare the principal point made by Kellman's article (Wilson's bill "represents a possible breakthrough" on the warrantless wiretap controversy and the White House "has some new momentum") with the Post's article ("legislation to authorize Bush's warrantless wiretapping program may be in more jeopardy")].

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. The Post article explains:

Frist also surprised senators yesterday on the warrantless wiretapping issue, sending surveillance legislation already approved by the Senate Judiciary Committee to the intelligence committee for further review. With one week left to consider the bill on the Senate floor, Sen. Olympia J. Snowe (R-Maine), an intelligence committee member, said passage before the election would be "extremely ambitious."

There is an argument to make that with or without an actual legislative solution, the White House may have benefited politically from the NSA debate, given that it places the focus on their anti-terrorism efforts rather than on Iraq. But that claim is unpersuasive at this point.

The detainee debate has overwhelmed the FISA issues in terms of media attention. And there is simply no question that it was (and probably still is) a very high White House priority to obtain -- while they still control the Congress -- legislative immunity for past illegal eavesdropping and Congressional authorization for future warrantless eavesdropping. The President and Vice President negotiated the Specter bill personally and every sign has strongly reflected its great importance to them.

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.

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NOTE: Beginning tomorrow, I will be posting at Salon, in the War Room, for one week (from tomorrow until next Wednesday). I will also post here on my blog each day (to link to the posts there and to add other thoughts) and will also post here on the weekend. There are, believe it or not, still many people, including people who are politically interested, who don't yet read blogs, and posts on Salon therefore reach a different audience.

This upcoming week is a very important week (particular for FISA and detainee/torture issues). Reading the posts at Salon is easy -- if you're not a subscriber, just click through the ad with the link above, or go to the Salon home page. If you experience problems, please e-mail me and let me know.

UPDATE: In an updated AP story from today, Heather Wilson echoes the sentiments of Olympia Snowe -- that whatever compromise is reached (if any) on the warrantless surveillance issue, Congress is unlikely to have the time to enact a bill prior to adjournment. Wilson "told reporters differences between the House and Senate versions were unlikely to be worked out before Congress reconvenes in a lame-duck session after the Nov. 7 elections."

That would truly be the best of all outcomes -- having this Bush-enthralled Congress, unable to deliver what the President wants due to the election pressure it faces from an anti-Bush electorate, adjourn with no new bill passed and FISA still in place. As Paul Rosenberg pointed out in Comments and as Wilson seems to be insinuating, it is at least theoretically possible that Republicans, even if they lose one or both Congressional houses, could try to use the post-election, lame-duck session to legalize warrantless eavesdropping. But if that were to happen, Democrats (as even they, with their excessively cautious mentality, would recognize) would be in a strong, nothing-to-lose position by using any means, including a filibuster, to prevent that.

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