Specter Proposes Giving Bush The 'Option' Of Obeying The Law, Proposes Amnesty For Past Violations

"Unless they’re prepared to have a determination on constitutionality as to their programs, window-dressing oversight will not be sufficient."
-Sen. Arlen Specter (Feb. 16, 2006)

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."
-President George W. Bush (April 20, 2004)

In the past six months or so since the revelations of the President's secret warrantless spying program, there have been a number of stories of the politics surrounding it (Sen. Roberts refusing to let the Intelligence Committee hold hearings, Cheney's constant interfering in congressional oversight attempts, new revelations about phone record collection or the media being spied on, etc.) that have been more than frustrating to read.

This one may officially take the cake.

In a previous entry on Wednesday, I noted how wannabe-maverick Judiciary Committee chair Arlen Specter went back on his promise to force executives from the top telecommunication companies to testify on their role in the widespread NSA program and how Specter also continued in his pattern of offering legislative cover for the administration's abuses. But a new article in today's Washington Post makes that look like nothing... the headline calls it 'compromise', but in fact Specter and the Senate Republicans are preparing to sweep this all under the rug permanently. I will bold the key sections.

Washington Post: Specter Offers Compromise on NSA Surveillance

The chairman of the Senate Judiciary Committee has proposed legislation that would give President Bush the option of seeking a warrant from a special court for an electronic surveillance program such as the one being conducted by the National Security Agency.

Sen. Arlen Specter's approach modifies his earlier position that the NSA eavesdropping program, which targets international telephone calls and e-mails in which one party is suspected of links to terrorists, must be subject to supervision by the secret court set up under the Foreign Intelligence Surveillance Act (FISA).

The new proposal specifies that it cannot "be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States."

Bush has cited his constitutional authority as president as justification for undertaking the warrantless NSA surveillance.The White House and Vice President Cheney have said up to now that no additional legislation is necessary to bring the program within the law....

Okay, let's review...

In the mid '70s, Congress investigates the numerous abuses of executive power committed during the '60s and '70s (in Kennedy/Johnson administrations and most flagrantly by President Nixon) and concludes that this must never happen again, passing several laws (such as the War Powers Act) to make sure it does not. These laws give the government all the power they need to protect national security, but to do so with legal oversight to prevent future abuse. One such law- the 1978 Foreign Intelligence Surveillance Act (FISA)- requires that warrants be issued for all surveillance, allows for secrecy and expediency in doing so, and makes it a crime for any government official to order warrantless surveillance. This law works perfectly through four administrations during the zenith of the Cold War and later conflicts. In 2001, an administration is sworn in with a Vice President who has long been a vocal supporter of limitless executive power. Later that year- even while Congress is (apparently wasting its time) amending FISA to give the President more leeway- said President secretly orders the NSA to begin a wiretapping program without warrants, in violation of existing law. In 2004, the NY Times learns of the program but does not report based on a request from the White House. A year later, they publish the story, which is followed in subsequent months by more revelations of how widespread the program is- involving thousands of innocent Americans, the acquisition of millions of private phone records, and targeting journalists among other news. As the White House stonewalls and gives unsatisfactory legal rationale for their actions, Congress initially is vocal in the majority against these actions, some even mentioning the "i" word. However, months of political pounding by the Vice President and others wears down Congress, who are now prepared to "compromise" with the White House, giving them the "option" of following the law at their discretion (but hey, no pressure) and insisting that they will not attempt to limit on exert their constitutionally-mandated oversight duties on the President's questionable actions.

Does that about sum up this madness?

But wait! It gets worse...

Another part of the Specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law.

Forget Ford pardoning Nixon in '74. This is- in spirit, if not in legal actuality- a preemptive pardon of the President and those who aided him by the legislative branch for potentially criminal actions that they have almost totally failed to investigate! To say that this is beyond backwards and a betrayal of the system the Founders established would be an understatement.

Jack Cafferty's must-watch rant on this hits all the right points.

All this while Specter and Cheney continue the charade of their 'feud' to keep the press entertained and occupied... Of course, I am uncertain if the White House would even accept Specter's generous proposal because its premise of 'options' and 'amnesty' suggests that the President might not, in fact, have the inherent authority to do as he pleases in the neverending war on terror. If I were a betting man, I would bet heavily that this proposal will go nowhere, but the mere proposal of it reveals two things: 1) How willingly Congress is allowing the administration to castrate them, and 2) how strongly the Republicans are working together to sweep this under the rug... and the Democrats can't be bothered to notice, of course.

I sit here having another political crisis of faith. I'm worn out. I may need another catharsis.

Trying to wrap my head around all of this is difficult. Where most people still see a minor debate between the executive and legislative on surveillance activities in the war on terror, I see a major constitutional crossroads. We are either a country ruled by law or a country ruled by men. Thomas Jefferson said we are the former; George W says we are the latter. Who do you side with?

Looking back through the thus-far short history of this scandal (and comparing it to how other historically recent ones-- Watergate, Iran-Contra, Lewinsky-- went down), it is breathtaking to see how far down this is on the political radar. Just six months ago, the President admitted to one of the biggest abuses of power in decades and now members of Congress are scrambling to acquiesce to the whole thing because it's politically expedient to do so. I can not believe that a) this is not getting major press, and that b) people are so nonchalant about the whole thing. Perhaps the latter is easier to understand.

Our most basic freedoms are the ones we pay least attention to and therefore the easiest and quickest to erode. While in recent months, Americans have gotten up in arms in large numbers when they felt, for instance, their 'right' to inexpensive gasoline was being threatened, the creeping monarchism of the Executive branch barely registers on most people's radar. It doesn't affect our day-to-day lives, so it's deemed unimportant and filed in the 'meh' drawer. In fact, some of my closest friends have insisted I should discuss these things less because it makes me sound 'extreme'. But what about all of this is not extreme?

What we are really talking about here are the most basic building blocks of our republic- the rule of law, constitutional freedoms, separation of powers, etc. If we 'compromise' on those (to use the Washington Post's polite wording), then we have compromised away the basic values that this country was founded on. With the 230th anniversary of our independence approaching and our soldiers dying in Afghanistan and Iraq, perhaps that's something people should actually consider worth caring out.

We face a constitutional turning point in our country and everyone is asleep at the wheel.

UPDATE:
Glenn Greenwald's on the job again with great analysis-

...Congressional abdication is so uniquely damaging because the Founders assumed that Congress would naturally and instinctively resist encroachments by the executive, and the resulting institutional tension -- the inevitable struggle for power between the branches -- is what would preserve governmental balance and prevent true abuses of power. But for the last five years, Congress has done the opposite of what the Founders envisioned. They have meekly submitted to the almost total elimination of their role in our Government and have quietly accepted consolidation of their powers in the President.

If the Congress is unmoved by their constitutional responsibilities, then at least basic human dignity ought to compel them to object to the administration's contempt for the laws they pass. After all, the laws which the administration claims it can ignore and has been breaking are their laws. The Senate passed FISA by a vote of 95-1, and the McCain torture ban by a vote of 90-9, and it is those laws which the President is proclaiming he will simply ignore. And yet not only have they not objected, they have endorsed and even celebrated the President's claimed power to ignore the laws passed by Congress. And that failure, more than anything else, is what has brought us to the real constitutional crisis we face as a result of having a President who claims the power to operate outside of, and above, the law....

I highly recommend reading the comments to his post. Very informative back-and-forth.

Digby weighs in as well.

UPDATE #2: For a similar/broader take on this, see a previous entry I did in February.

UPDATE #3: Sen. Specter is at it again, pretending he intends to rein in the President.


[Related report from the Village Voice- Justice Department's Black Site:
The administration censors internal probe of lawbreaking by the Oval Office and the NSA]