Backdoor Amnesty and the Ceding of Congressional Authority
Unlike previous iterations of Specter's surveillance bill, the new "compromise" bill does not contain an explicit amnesty provision absolving the Administration of responsibility for violations of FISA committed prior to passage of the bill.
The bill does, however, seek to achieve the same result by other means. Section 9 of the bill is cleverly titled "CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978." This section repeals the provision stating that FISA is the "exclusive means" by which surveillance may be conducted and replaces it with the following statement:
By styling this as a "clarification" of FISA (as opposed to an amendment), the drafters of the bill are unmistakably implying that the exclusivity provision was never a valid restraint on executive power. In other words, the bill clearly endorses the Addington/Yoo view that Congress never had the power to impose upon the executive branch an exclusive procedure for conducting foreign intelligence surveillance domestically.
And if such a restriction was never valid in the first place, no amnesty is needed. This "clarification" would be the equivalent of a legislative annulment. I'm not sure whether the courts would see it that way, but I think that's clearly the intention.
Even more disturbing, however, is the fact that this provision misrepresents the extent of Congress's powers under the Constitution. There is no reason at all, particularly in light of Hamdan, to think that FISA impermissibly infringes upon any exclusive presidential authority.
In other words, the president almost surely does not have the constitutional authority to conduct domestic surveillance outside of FISA.
But the very structure of Specter's bill implies that the president does have such a power, and has had it all along. If this bill passes, Congress will be willfully understating the extent of its own constitutional authority. In Federalist 51, James Madison wrote:
It was an ingenious system. But, alas, Madison clearly did not anticipate the fecklessness of the modern GOP.
The bill does, however, seek to achieve the same result by other means. Section 9 of the bill is cleverly titled "CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978." This section repeals the provision stating that FISA is the "exclusive means" by which surveillance may be conducted and replaces it with the following statement:
Nothing in this Act shall be construed to limit the
constitutional authority of the President to collect
intelligence with respect to foreign powers and agents
of foreign powers.
By styling this as a "clarification" of FISA (as opposed to an amendment), the drafters of the bill are unmistakably implying that the exclusivity provision was never a valid restraint on executive power. In other words, the bill clearly endorses the Addington/Yoo view that Congress never had the power to impose upon the executive branch an exclusive procedure for conducting foreign intelligence surveillance domestically.
And if such a restriction was never valid in the first place, no amnesty is needed. This "clarification" would be the equivalent of a legislative annulment. I'm not sure whether the courts would see it that way, but I think that's clearly the intention.
Even more disturbing, however, is the fact that this provision misrepresents the extent of Congress's powers under the Constitution. There is no reason at all, particularly in light of Hamdan, to think that FISA impermissibly infringes upon any exclusive presidential authority.
In other words, the president almost surely does not have the constitutional authority to conduct domestic surveillance outside of FISA.
But the very structure of Specter's bill implies that the president does have such a power, and has had it all along. If this bill passes, Congress will be willfully understating the extent of its own constitutional authority. In Federalist 51, James Madison wrote:
But the great security against a gradual concentration of the
several powers in the same department, consists in giving to
those who administer each department, the necessary
constitutional means, and personal motives, to resist
encroachments of the others. The provision for defense must
in this, as in all other cases, be made commensurate to the
danger of attack. Ambition must be made to counteract
ambition.
It was an ingenious system. But, alas, Madison clearly did not anticipate the fecklessness of the modern GOP.
posted by A.L. at 11:09 PM
4 Comments:
That Republicans never believed in the validity of Congress' power to restrict the executive in conducting foreign intelligence surveillance domestically should have been obvious at least from the date of Alberto Gonzales' confrontation with Senator Feingold over whether or not Gonzales was truthful in his confirmation hearing.
Gonzales telegraphed the whole thing when he insisted that the questions he had been asked in his confirmation hearings were "hypothetical."
Feingold chose to hear that as a lie, or at least a deliberate dodge. But Gonzales was saying that it had to be hypothetical if the question was whether or not the president could authorize surveillance in contravention to law, because the president can't contravene law when he acts under his "inherent powers."
Feckless. Perfect descriptor.
THIS is what Republicans have done to this country.
With THIS type of reporting, especially on TV – what do you expect? The wingnut blogs are the least of our worries
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