September 15, 2006

Will the Walk Be Walked?

Glenn Greenwald at Unclaimed Territory has become the go-to guy in the blogosphere on legal matters affecting the Constitution, and his July 24th piece on Senator Arlen Specter's proposed legislation to revise FISA Court oversight of President Bush's warrantless surveillance program gives an excellent overview of why this bill is horribly damaging to the nation. I realize that Constitutional law is not everybody's cup of tea, but this stuff really does matter, and if you pay attention to little else in politics, I urge you to pay attention to this.

The bad news is that Specter's bill made it out of committee on Wednesday - the first hurdle on its way to becoming law - passing on a party-line vote with intense pressure from the White House. Democratic efforts to amend the bill to rein in the president were rebuffed completely, and it is now headed to the full Senate, which is expected to take up the legislation soon. Specter's bill would do the following (hat tip to JustAnObserver, a commenter at Unclaimed Territory for the summary):
  1. Repeal the core requirement of FISA that its procedures and the criminal Wiretap Act (Title III) "shall be the exlusive means" for conducting electronic surveillance. The bill essentially makes FISA optional overall, by explicitly deferring to the President's "inherent" constitutional authority instead.
  2. Authorize (but not require) the President to submit the current NSA surveillance program to review and blessing by the FISA courts. This review effectively would be limited to Fourth Amendment issues. The separation-of-powers issues deriving from FISA itself would not be reviewed, because Congress already would have capitulated in Step 1 above.
  3. Refer all third-party court challenges to intelligence-surveillance programs to the FISA courts, instead of the ordinary District Courts such as those of Judge Taylor in Detroit, Judge Lynch in New York or Judge Walker in San Francisco, which now have several cases before them. There is some uncertainty about what effect this would have on Judge Taylor's case, since she already has ruled against the program and issued an injunction.
  4. Make some fundamental changes to the definitions within FISA, most importantly removing the current provision that makes FISA apply to any intelligence surveillance acquired within the United States, regardless of who the target is. This apparently would have the effect of authorizing warrantless surveillance beyond that now reported to take place under the NSA program.
In short, S 2453 grants George W. Bush - and any president that follows him - freedom from oversight and the legal authority to spy on whomever he will. The only restraint on this power is the government's good faith, and our belief that the people in charge won't make mistakes or carry out actions against personal or political enemies. With the Valerie Plame scandal and Watergate in this nation's recent history, the foolishness of that course should be self-evident.

The good news is twofold, but it is nascent. First, there is an alternative bill (S 3001) from Senator Diane Feinstein that will compete with Specter's legislation in the Senate. It would enact the following (again, hat tip to JustAnObserver for the summary):
  1. Reaffirm that FISA and Title III procedures "shall be the exclusive means" for conducting surveillance, eliminating the chance that the AUMF might be construed to authorize warrantless surveillance that FISA prohibits.
  2. Provide increased flexibility in FISA's current "emergency" provisions for beginning surveillance before warrants are issued, and increasing the emergency period from the current one-stage provision of three days to a two-phase provision of three days at first, with the final warrant application not due for seven days. The greater flexibility within the three days is offset by detailed oversight reports to Congress and the FISA courts.
  3. Increase the resources for processing these individual FISA warrants.
  4. Make the current provision allowing 15 days of warrantless surveillance immediately following a declaration of war also apply to 15 days following a national emergency or passage of an AUMF, as defined by the War Powers Act.
In other words, Feinstein's bill specifically addresses the complaints that were used by the White House to justify bypassing the FISA Court, reaffirms that the president must submit to oversight, and reforms the institution rather than chucking the baby out with the bath water and undermining the Constitution.

The second piece of good news comes by way of a conference call attended by Senate Minority Leader Harry Reid and a number of progressive bloggers, among them Glenn Greenwald. From Unclaimed Territory:

... For the first question, I asked him about the Specter bill -- specifically, what the Democrats' strategy was for preventing its enactment (I wanted to wait until the second question but I couldn't contain myself).

Sen. Reid stated flatly and unequivocally -- and I'm paraphrasing -- that the Specter bill was not going anywhere, that it would not be enacted. I then asked him how he could be so certain about that -- specifically, I asked where the 51 votes against the Specter bill would come from in light of the support it enjoys from both the White House and at least some of the ostensibly "independent" Republicans, exacerbated by the fact that all 10 Republicans on the Judiciary Committee voted in favor of it yesterday (at least they voted in favor of sending it to the Senate floor).

In response, Sen. Reid explained that our system does not allow every bill to be enacted simply because a majority supports it, that Senate rules allow minority rights to be protected, clearly alluding to a filibuster. Indeed, as part of that vow, Sen. Reid specifically referenced the fact that in the Senate, one does not need 50%, but only 40%, to block the enactment of a bill. He explained that rule existed to protect minority rights. When I asked him expressly whether the Democrats are committed to filibustering the Specter bill if doing so is necessary to defeat it, he said he thought that would not be necessary, but repeated that they would make sure the Specter bill did not become law. He was unequivocal about that a second time.

The Democratic Senate leadership is definitely talking the talk, and is, judging by Senator Reid's statements, prepared to filibuster. While poor approval ratings for the Bush Administration have begun to embolden the Democrats over the last few months, their track record on caving to the GOP is less than stellar. If you can, take the opportunity to contact Senator Reid and make sure that he walks the walk. The Minority Leader's contact information is as follows:

Reid, Harry- (D - NV)
528 Hart Senate Office Building
Washington, DC 20510
(202) 224-3542
Web Form:

The Specter bill is a truly terrible piece of legislation that directly attacks the system of checks and balances that is the very foundation of government in the United States. It needs to be not only defeated, but soundly rejected.

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