The Fate of the NSA Program
The Washington Post reported on Thursday (h/t Tom Maguire) that the Bush Administration is unlikely to cooperate with Democratic efforts to learn more about the NSA warrantless surveillance program.
Putting aside for a moment how totally absurd it is that this Administration thinks it has a right to withhold information from Congress regarding the surveillance of U.S. citizens (especially surveillance done in defiance of an existing law), I'm not sure I see what withholding such information is likely to accomplish. Tom writes:
Maybe Tom's right, but I'm skeptical things will play out the way he predicts. Assuming the Bush Administration is unable to get legislation passed prior to the Democratic takeover of Congress in January, I just don't see what motivation the Democrats will have to bail the Administration out of the corner it has painted itself into.
The administration is not going to lobby hard for a FISA overhaul because 1) it would mean implicitly admitting that what they're doing is illegal, and 2) it would play right into Democratic demands for more information. The Democrats aren't going to legislate in the dark, particularly when they are being asked to completely gut a law, FISA, which has been in place for 30 years and has been carefully amended and refined numerous times over the years, most recently by the Patriot Act.
Moreover, as things stand, FISA is the law of the land and the President's surveillance activities are being challenged in a number of separate legal actions across the country. One federal court has already ruled the NSA program illegal. What incentive do Democrats have to pass legislation mooting this litigation, especially when they are being actively stonewalled by the Administration? The answer is none. They'll let that litigation run its course. Why give the Administration powers that it still claims it doesn't need?
Tom suggests that surveillance legislation will follow the same path as detainee legislation. But the passage of the Military Commissions Act was made possible by three things that don't exist with respect to surveillance: 1) the existence of a Republican majority, 2) the need to manufacture an election issue in time for the midterm elections, and 3) the existence of an adverse Supreme Court ruling specifically invalidating the existing commission structure. These factors prompted a number of Republicans to vote in favor of the bill despite strong reservations. And remember, the Bush Administration had hoped to pass surveillance legislation that coincided with the MCA. They were unable to do that. What reason is there to think they will have any better luck with a Democratic Congress?
Here's my prediction: Assuming there is no action by the lame duck Congress, I think that, come January, the Democrats will begin to investigate the NSA program. The Bush Administration will stonewall, subpoenas will ensue, and the validity of those subpoenas will end up being litigated in the courts. Meanwhile, the litigation already pending in various federal courts will proceed and there will eventually be a few more adverse rulings. The Administration will appeal these rulings, stalling for time, and may well leave the issue to the next Administration.
The Bush administration is unlikely to allow the incoming Democratic majority in Congress to learn details about its domestic spying program and interrogation policy, a Republican senator said on Thursday.
Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania, who has criticized the Bush White House's secrecy about national security issues, said he would welcome detailed congressional oversight of the National Security Agency's warrantless eavesdropping. . . .
But he said he had "grave reservations" that Congress would end up getting the information from the administration.
Putting aside for a moment how totally absurd it is that this Administration thinks it has a right to withhold information from Congress regarding the surveillance of U.S. citizens (especially surveillance done in defiance of an existing law), I'm not sure I see what withholding such information is likely to accomplish. Tom writes:
My Bold Prediction - the fate of the NSA program will mirror that of the detainee bill: look for Dem huffing and puffing and hiding. Eventually, something will be passed that lets Dems pretend the program was then illegal and is now OK, and which lets Reps (and me!) pretend that the issue was never in doubt.
Maybe Tom's right, but I'm skeptical things will play out the way he predicts. Assuming the Bush Administration is unable to get legislation passed prior to the Democratic takeover of Congress in January, I just don't see what motivation the Democrats will have to bail the Administration out of the corner it has painted itself into.
The administration is not going to lobby hard for a FISA overhaul because 1) it would mean implicitly admitting that what they're doing is illegal, and 2) it would play right into Democratic demands for more information. The Democrats aren't going to legislate in the dark, particularly when they are being asked to completely gut a law, FISA, which has been in place for 30 years and has been carefully amended and refined numerous times over the years, most recently by the Patriot Act.
Moreover, as things stand, FISA is the law of the land and the President's surveillance activities are being challenged in a number of separate legal actions across the country. One federal court has already ruled the NSA program illegal. What incentive do Democrats have to pass legislation mooting this litigation, especially when they are being actively stonewalled by the Administration? The answer is none. They'll let that litigation run its course. Why give the Administration powers that it still claims it doesn't need?
Tom suggests that surveillance legislation will follow the same path as detainee legislation. But the passage of the Military Commissions Act was made possible by three things that don't exist with respect to surveillance: 1) the existence of a Republican majority, 2) the need to manufacture an election issue in time for the midterm elections, and 3) the existence of an adverse Supreme Court ruling specifically invalidating the existing commission structure. These factors prompted a number of Republicans to vote in favor of the bill despite strong reservations. And remember, the Bush Administration had hoped to pass surveillance legislation that coincided with the MCA. They were unable to do that. What reason is there to think they will have any better luck with a Democratic Congress?
Here's my prediction: Assuming there is no action by the lame duck Congress, I think that, come January, the Democrats will begin to investigate the NSA program. The Bush Administration will stonewall, subpoenas will ensue, and the validity of those subpoenas will end up being litigated in the courts. Meanwhile, the litigation already pending in various federal courts will proceed and there will eventually be a few more adverse rulings. The Administration will appeal these rulings, stalling for time, and may well leave the issue to the next Administration.
posted by A.L. at 1:00 PM
4 Comments:
Attention Comrade,
Please visit http://ministryoflove.wordpress.com to learn more about our creative protest of the Military Commissions Act. We are sending a copy of 1984 to every Congressperson who voted for it.
Regards,
O'Brien
"1) the existence of a Republican majority,"...
I don't like being brutal, but isn't this individual Tom something of a political retard? The election was weeks ago; of course, the sun rose and things will be different with a D majority.
Yes, we are very deep in blogtopia.
Surely these subpoenas and other tools with which to investigate the NSA wiretapping issue will indeed be met with stonewalling, and with appeals. About the only thing Democrats can do is loudly, and often, proclaim the Administration's unwillingness to allow appropriate oversight each and every time it does so.
At this point, I doubt shaming the Administration into action is going to work, but at least Democrats now have the power to spotlight the stonewalling, while at the same time reminding Americans of Congress' oversight responsiblities, and how the stonewalling is inhibiting that process. What else can be done? It saddens me to think that, after all of this time and after all of these misdeeds, all the Administration has to do it wait these two years out, after which the real investigations and the myriad of 'constitutional reconstruction' activities will finally take place. I do hope that those who were responsible for our Nation's missteps are held accountable, in appropriately forceful manner, for what they have done. They should not be allowed to simply flow into the private sector with nary a punishment (and historical texts which will inevitably lambast this Administration is too long to wait, at least for this American).
Of course there will be stonewalling - THE SPYING IS BEING USED AGAINST THOSE THE ADMINISTRATION FEELS ARE A THREAT TO ITS CRIMINALITY AND ABSOLUTE POWER!!!!
It has NOTHING to do with national security - 9/11 was an INSIDE JOB The high crimes, treason, war crimes, and crimes against humanity that this administration is responsible for DEMANDS nothing less than a facist state - WHY WOULD THE GANG THAT STOLE 2 PRESIDENTIAL ELECTIONS COOPERATE WITH ANYTHING!
Really, its insane to expect cooperation.
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