{ An Autopsy of Democracy }

Monday, July 24, 2006

"A complete and total sham"

Or, as Vermont Senator Patrick Leahy put it:

"[Bush] is saying, if you do every single thing I tell you to do, I'll do what I should have done anyway."

This "compromise" bill that is meant to provide review and oversight of Bush's illegal and unconstitutional warrantless NSA wiretapping program actually appears to do the opposite. Instead it allows the program to expand, and potentially to continue with even less oversight than before.

I have a LOT of respect for Arlen Specter. (I happened to catch his speech supporting the flag-burning amendment -- and even THAT I respected, although I thought the whole bill was complete and utter nonsense.) But the fact is, he's just caving in on this one.

From the "Balkinization" blog:

Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.

But first, the details: The bill authorizes the FISA court to permit "electronic surveillance programs"-- the key point being that these involve domestic surveillance of U.S. citizens-- for periods up to 90 days, periods which are indefinitely renewable. Authorization is on a program by program basis, rather than on the basis of the particular individuals who are being watched. All legal challenges to the surveillance program-- including challenges to the use of evidence in other prosecutions or litigation-- can be moved to the secret FISA court if the Attorney General states that national security demands it. The FISA court, in turn, has the power to dismiss a challenge to the legality of the program "for any reason." This provision seems puzzling: literally it says that the court can dismiss legal challenges to programs for any reason, whether good or bad, and even if the objections to the programs are well founded. In fact, the provision makes sense only if its purpose is to allow the FISA court to immunize Presidential surveillance from legal attack.

. . . . . . . .

In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of-- a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President's constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.

See also: Specter's Bill Is No "Compromise" [ Daily Kos ]

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