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.

Thursday, November 09, 2006

The President's designs on the lame duck Congressional session

(updated below)

When we last left the Republican Senate, in the week before they adjourned, they were so busy legalizing torture and indefinite detentions that they ran out of time to also give the President the power to eavesdrop on Americans in secret. The House had hastily passed Heather Wilson's version of the "Terrorist Surveillance Act," but the Senate had no time to vote on it prior to adjournment. As a result, warrantless eavesdropping continues to be criminal in this country (even though the President continues to engage in it).

For that reason, enactment of a warrantless eavesdropping bill remains a top priority for the President -- probably even more important to him now than even before the election -- because such a bill would not only gives him legal authority to eavesdrop with no judicial oversight, but it also would help protect himself against the legal consequences of having repeatedly broken the law. It is worth remembering that a federal court has already ruled his eavesdropping program to be both unconstitutional and in violation of the criminal law, and another judge, the highly respected District Court Judge Gerard Lynch of the Southern District of New York, is likely to issue a ruling soon on the same issues in the absence of Congressional legislation legalizing the program.

It seems highly unlikely that Harry Reid and Nancy Pelosi will have as one of their priorities the enactment of a bill to legalize Bush's eavesdropping program. For the new 110th Congress, a long-overdue investigation of warrantless eavesdropping seems far more likely than legalization of it, to put it mildly. For that reason, the President made clear in a Rose Garden speech today that he wants Congressional action taken on that bill during the lame duck session, to convene before Democrats take over in January:

We'll discuss the way forward for our country, and I'm going to tell them what I just told our Cabinet. It is our responsibility to put the elections behind us and work together on the great issues facing America.

Some of these issues need to be addressed before the current Congress finishes its legislative session, and that means the next few weeks are going to be busy ones.

The first order of business is for Congress to complete the work on the federal spending bills for this year with strong fiscal discipline and without diminishing our capacity to fight the war on terror.

The other important priority in the war on terror is for the Congress to pass the Terrorist Surveillance Act.

Until January, the Senate majority will still be filled with the likes of Conrad Burns, Rick Santorum, George Allen and Michael DeWine, and Republicans would almost certainly be able to scrounge up the 50 votes needed to pass the Heather Wilson "Terrorist Surveillance Act" bill. That bill was never exactly what the White House wanted, but it would certainly be better than nothing at this point.

In the lame duck session, if Republicans are really so audacious as to try to pass that bill, Democrats could stop enactment of the Wilson bill by filibuster. In its report on the President's Rose Garden speech, CNN discussed the various bills the President wants passed in the lame duck session and said:

The Terrorist Surveillance Act is likely to face the stiffest opposition, as both parties have criticized the measure that would authorize the administration's surveillance program, which allows wiretapping on phone calls between people in the United States and suspected terrorists overseas.

I don't know of any Senate Republicans who have ever criticized "The Terrorist Surveillance Act," so I am unclear what the basis is for this claim [and just, by the way, is it really too much to ask CNN not to describe the new bill as one that "allows wiretapping on phone calls between people in the United States and suspected terrorists overseas" -- can someone, somewhere, please explain to CNN that we already have a law (called FISA) that allows exactly that. Is it really any wonder that many Americans have never properly understood what is at stake with the NSA scandal in light of the highly impaired individuals who are responsible for informing them about these matters?).

It needs to be borne in mind at all times just how bowed and weakened the Republicans are. Their bellicose threats are empty and their demonizing rhetoric is impotent, and the Democrats have nothing to fear -- least of all from them. This photograph from today speaks volumes:

The Bush movement spent the last five years completely ignoring Democrats like Nancy Pelosi, except when it came time to mock them as Osama bin Defeatocrats. Now the President has to have a personal sit-down with her at the White House and treat her with the greatest respect.

How do you think Tom DeLay, Dick Cheney and Karl Rove feel inside as they watch Nancy Pelosi and Charlie Rangel and Barney Frank and John Conyers take over their Congress? This is a humbling and crushing blow to them -- only a fraction of what they deserve and what the country needs, but substantial nonetheless (just as an aside, for a politician widely viewed as weak, Nancy Pelosi has done everything right politically, and really nothing wrong, both before the election and since).

By stonewalling and concealing all relevant information from Congress, the White House has ensured that the very Senators and Representatives whom they want to amend FISA and legalize the NSA program know nothing about that program. Even several GOP Senators made clear that it is impossible to amend FISA in any meaningful way without first holding hearings to find out what the administration has been doing with its secret eavesdropping powers (those same GOP Senators, needless to say, shortly thereafter announced that they would support legalizing the program even without the information they said was "necessary" to make a meaningful choice).

The administration has not only kept Congress completely in the dark about how it has been eavesdropping, but they also have repeatedly violated their promises to disclose information about those activities. Their behavior was so severe that it prompted even the meek and exceedingly cooperative Jay Rockefeller to complain vociferously (for him). At the very least, Democrats cannot be pressured into hastily enacting any eavesdropping bill while they still are in the dark, and I don't expect that they will (though how the Democrats will really behave is still a big unknown).

Already the pious and wise Beltway pundits are speaking in scripted unison about how Democrats better realize that they need to be conciliatory and moderate and well-behaved. That's all well and good, but Democrats also need to realize that they have resoundingly triumphed and the Bush movement is staggering around in a weakened and humiliated state. They need to ensure that the "lame duck" sesssion of Congress lives up to its name in every respect.

UPDATE: It doesn't look like there there is excessive meekness or conciliation coming from the soon-to-be Chairman of the House Ways and Means Committee, Rep. Charlie Rangel, who "revealed yesterday that he's got his eye on Capitol Hill office space now held by . . . Vice President Dick Cheney":

"Mr. Cheney enjoys an office on the second floor of the House of Representatives that historically has been designated for the Ways and Means Committee chairman," explained Rangel . . . "I talked to [future House Speaker] Nancy Pelosi about it this morning," a giddy Rangel crowed during a news conference at his Harlem office. "I'm trying to find some way to be gentle as I restore the dignity of that office," chuckled Rangel. "You gotta go, you gotta go."

Many of the tactics Republicans used over the last five years to strip the Democrats of all power and participation in our government were psychological -- drastically reducing their staffs, shoving them into dingy and tiny basement offices. One doesn't want to replicate the worst Republican offenses, but it is necessary that they taste some of their own medicine -- for practical reasons as well as for fairness and justice.

Soon-to-be-Chairman Rangel seems eager to get a start on all of that. I wonder if Fred Hiatt and David Broder approve of his plan.

UPDATE II: According to Kos, Heather Wilson's race is not yet decided and she still may lose. Having the "TSA" House sponsor lose would be sweet justice. The same is true for Jean Schmidt, though both she and Wilson have very small leads with provisional and other ballots left to be counted.

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