Specter's Deal
On Friday, Senator Arlen Specter announced that he had reached a compromise with the White House regarding the NSA warrantless surveillance program. Specter is, evidently, a terrible negotiator because the White House got just about everything it could possibly want out of this deal.
The New York Times headline reads "Bush Will Allow Court to Review NSA Wiretaps." This headline is entirely misleading, for reasons I will explain in a second, but consider how strange it would be even if it were true. The NSA is already required by law, and under pain of criminal prosecution, to seek court approval before conducting any domestic wiretapping. This has been the law of the land for over a quarter century. If the president had indeed agreed to stop violating a long-standing criminal statute, which the Times headline seems to imply, are we really supposed to view that as some sort of magnanimous and conciliatory gesture on his part? It's amazing what eight months of brazen and unapologetic lawbreaking can do to lower our collective expectations as to what constitutes acceptable presidential behavior.
The news outlets are all reporting that the President has finally agreed to submit the NSA program to judicial review. What they are failing to report (or at least properly emphasize) is that the President has only agreed to do this if Specter first agrees to pass a bill gutting the Foreign Intelligence Surveillance Act (FISA). Buried at the very end of its three page story, the Washington Post reports:
As I've explained previously, the exclusivity provision of FISA is the linchpin that holds the statutory scheme together. Without it, FISA is a joke. What good is an optional warrant system? That's no different than what we had in the pre-FISA era, when executive abuse was rampant. Maybe someone in the media could point this out.
And while they're at it, maybe they could also point out that submitting the NSA program to judicial review after it has been legalized is very different than submitting it to judicial review now, when it is quite clearly illegal. The first scenario, which is all the Bush administration has agreed to, is not much of a concession at all. While this post-legalization review would, presumably, tee-up any Fourth Amendment issues raised by the program, the Bush administration is on much more solid ground with respect to that issue.
And, bizarrely, even this post-legalization review is "optional" under the Specter compromise. Specter merely has Bush's personal assurance that if the bill is passed 'as is', he will agree to submit the program for a one-time Fourth Amendment review. Apparently future programs and future presidents are not subject to even this minimal review.
And what hell is this about? From the WaPo:
Oh really? What if the bill is amended so as to specifically obligate the president to submit the program to the FISA court? Would he still not be obligated? Is this an implicit threat to disobey any legislative requirement of mandatory review?
As a final note, it's worth pointing out that there is some good news to be found here, if you read between the lines. The White House has long been opposed to any legislation intended to bring the NSA program within the law. Their sudden willingness to endorse a piece of legislation, even one as terrible as this one, has to be interpreted as a realization on their part that, in light of Hamdan, there is no longer any colorable legal basis for the NSA program. The other day, in response to one of my posts, a commenter asked:
I responded:
Of course both Specter and the White House are claiming that this agreement was reached in principle prior to the Hamdan decision, but that's almost surely pure rubbish designed to help the administration save face. I would bet the farm that the Court's decision in Hamdan is what prompted the administration to finally agree to support legislation. And that's a good thing. It means that what the Supreme Court says actually matters to some people in the administration.
I'll have much more to say about all this (and the Plame suit!) in the coming days, after I have a chance to digest it all and catch up on some sleep.
The New York Times headline reads "Bush Will Allow Court to Review NSA Wiretaps." This headline is entirely misleading, for reasons I will explain in a second, but consider how strange it would be even if it were true. The NSA is already required by law, and under pain of criminal prosecution, to seek court approval before conducting any domestic wiretapping. This has been the law of the land for over a quarter century. If the president had indeed agreed to stop violating a long-standing criminal statute, which the Times headline seems to imply, are we really supposed to view that as some sort of magnanimous and conciliatory gesture on his part? It's amazing what eight months of brazen and unapologetic lawbreaking can do to lower our collective expectations as to what constitutes acceptable presidential behavior.
The news outlets are all reporting that the President has finally agreed to submit the NSA program to judicial review. What they are failing to report (or at least properly emphasize) is that the President has only agreed to do this if Specter first agrees to pass a bill gutting the Foreign Intelligence Surveillance Act (FISA). Buried at the very end of its three page story, the Washington Post reports:
Specter agreed to repeal a section of the original FISA law
that made it the exclusive statute governing such
intelligence programs.
As I've explained previously, the exclusivity provision of FISA is the linchpin that holds the statutory scheme together. Without it, FISA is a joke. What good is an optional warrant system? That's no different than what we had in the pre-FISA era, when executive abuse was rampant. Maybe someone in the media could point this out.
And while they're at it, maybe they could also point out that submitting the NSA program to judicial review after it has been legalized is very different than submitting it to judicial review now, when it is quite clearly illegal. The first scenario, which is all the Bush administration has agreed to, is not much of a concession at all. While this post-legalization review would, presumably, tee-up any Fourth Amendment issues raised by the program, the Bush administration is on much more solid ground with respect to that issue.
And, bizarrely, even this post-legalization review is "optional" under the Specter compromise. Specter merely has Bush's personal assurance that if the bill is passed 'as is', he will agree to submit the program for a one-time Fourth Amendment review. Apparently future programs and future presidents are not subject to even this minimal review.
And what hell is this about? From the WaPo:
If Congress amends the bill in any way that Bush disapproves,
he will not be obligated to submit the wiretap program to the
FISA court for review, Specter said.
Oh really? What if the bill is amended so as to specifically obligate the president to submit the program to the FISA court? Would he still not be obligated? Is this an implicit threat to disobey any legislative requirement of mandatory review?
As a final note, it's worth pointing out that there is some good news to be found here, if you read between the lines. The White House has long been opposed to any legislation intended to bring the NSA program within the law. Their sudden willingness to endorse a piece of legislation, even one as terrible as this one, has to be interpreted as a realization on their part that, in light of Hamdan, there is no longer any colorable legal basis for the NSA program. The other day, in response to one of my posts, a commenter asked:
What indications can the public look for to know whether or
not the program has been reauthorized?
I responded:
Good question. I think the thing to look for would be a
renewed willingness by the administration to seek some sort
of Congressional authorization. If the White House reaches out
to Congress for legislation, that's a unmistakable sign that they
are having trouble securing reauthorization of the program
internally.
Of course both Specter and the White House are claiming that this agreement was reached in principle prior to the Hamdan decision, but that's almost surely pure rubbish designed to help the administration save face. I would bet the farm that the Court's decision in Hamdan is what prompted the administration to finally agree to support legislation. And that's a good thing. It means that what the Supreme Court says actually matters to some people in the administration.
I'll have much more to say about all this (and the Plame suit!) in the coming days, after I have a chance to digest it all and catch up on some sleep.
posted by A.L. at 11:44 PM
6 Comments:
Of course, I think that the "administration's" interest in legislation has less to do with the realization that Hamdan actually means something to the than it does with the opportunity such legislation provides to roll up their wish list, "things related, and things not," so to speak.
And the cover is, "We're respecting the rule of law! We're so weak and helpless! Save us, Congress!"
I think you've gone uncharacteristically soft here, unfortunately. I don't see how there's any "good news" in this, even of a limited and formalistic nature. First, with the DOJ's letter to Schumer of earlier in the week serving as background, it's hard to claim that the admin. has seen the light after Hamdan and now concedes that the NSA program is illegal. Far from it, in fact. It’s still the same old administration. Second, all this deal represents is Congress' capitulation in the admin's extraordinary power grab. It doesn't seem like it's an acknowledgement by the admin that it is in any way constrained by Congress or the rule of law. Specter is trying to hand them a gift, and all they’re doing is taking it. All the law basically says is that the admin won’t be subject to any mandatory Congressional or judicial oversight, so it seems wrong to suggest that this constitutes a recognition by the admin of the legitimacy of any oversight authority. I understand your point that at the very least this has the patina of seeking Congress' approval, but that misses the larger point that this is a sham all the way down. Accepting the admin’s claim even to a limited degree just gives it the pr bamboozlement victory that, at this point, is pretty much its only hope.
Look forward to your analysis of the Plame case. I wonder if May is one of the 10 John Does.
BTW great write up of the WaPo.
Pollyusa
I think you've gone uncharacteristically soft here
I do too. I hadn't read the whole bill when I wrote this. It's even worse than I thought.
it seems wrong to suggest that this constitutes a recognition by the admin of the legitimacy of any oversight authority
You're right, but that wasn't what I was trying to suggest. I think this represents, to some degree, an acknowledgement by the administration that, absent legislation, they would likely lose in court. I think they still believe in all their silly theories, but this reflects an understanding that the courts aren't buying it.
But the bill is ghastly and unimaginably bad policy. It renders FISA meaningless and represents a concession by congress, despite what the Courts say, that the legislative branch cannot regulate in areas where the president has "inherent authority." In other words, while the Court just stood up for Congressional supremacy, Congress itself seems to be on the verge of seeding it back to the executive.
I don't know that there are any words adquate to describe how bad the bill is. And the fact that the media are reporting it as a "White House compromise" is enough to motivate one to consider exile.
This strikes me as less an acknowledgement by the "administration" that, absent legislation, they would likely lose in court than analagous to the understanding by someone contemplating a crime that fingerprints make good evidence in court, so they'll wear gloves.
Specter's bill might as well be a naked repeal of the 4th amendment. Codifying the Addington/Yoo "inherent powers" theory and extending it to authorize warrantless physical searches and seizures?
How long before some enterprising Republican Congressperson suggests we fight the "war on drugs" this way? And then what? The "war on Christmas?"
Here is what one fine fellow has to say about the author of "anonymous Lawyer":
"[T]he author spent exactly one summer at a law firm. Summer associates, as you may not know, Tom, are paid $2,400 a week (in 2004/2005; more now) to work 3-4 hours a day and go out to lunch and dinner on an expense account as often as they like. In other words, the big bastard who wrote that stuff about law firms for Henry Holt doesn't know anything more about real law firm work than he does about fornicating."
Could this be you, sir? Could this be true? Please, by all means, tell us more...
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