Specter Serious About Spying Amnesty / Gov't Stonewalls Courts

One week ago, I wrote a detailed post about the latest- and most frustrating- development in the scandal surrounding President Bush's warrantless wiretapping program. A Washington Post report stated that Sen. Specter "has proposed legislation that would give President Bush the option of seeking a warrant from a special court" and that the bill also "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." In summary, it is as constitutionally ass-backwards a piece a proposal as there ever was. Sen. Specter appeared to be doing what he always does- shouting to the cameras about how he will rein in the President publicly, while giving him what he wants privately.

But then the next day, Sen. Specter went on CNN and said the story was a lie. A twist!

It turns out that the liar, not surprisingly, is Specter. The Post story was accurate.

Blogger and lawyer Glenn Greenwald was able to obtain a copy of the proposed legislation that the Post wrote about and has concluded that their interpretation of it is accurate. Specter's proposed bill wishes to amend- with retroactive authority- the 1978 Foreign Intelligence Surveillance Act (FISA), so that the President's warrantless wiretapping would become now, and forever, legal. The implications of this are staggering. The main way he would do this is, after each part in the original FISA law stating wiretapping is only legal as "authorized by statute", by adding "or under the constitutional authority of the executive"... the President's questionable constitutional authority in this regard being the White House's main defense (now that their original defense based around the Afghanistan war resolution was laughed out of Congress). Specter's planned acquiesence to the White House's warped defense is despite his previous public condemnations of their argument as "strained" and "unrealistic".

Greenwald looks at what this all means-

Currently, Section 109(a) of FISA provides that "A person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute . . . ." That means that anyone who eavesdropping on Americans without complying with the warrant requirements of the statute (FISA) is committing a felony. To amend this provision to include the phrase "or under the constitutional authority of the executive" after "authorized by statute," makes it legal to eavesdrop not only in compliance with FISA (i.e., by obtaining a warrant), but also under the "constitutional authority" of the President to engage in warrantless eavesdropping even if that warrantless eavesdropping is prohibited by FISA (which it is).

Put another way, since 1978 in this country, there has been only one way to legally eavesdrop on Americans -- by complying with FISA. This amendment adds a second way to legally eavesdrop on Americans -- without warrants, under the President's direction. And astonishingly, the amendments are made retroactive all the way back to 1978, which means that the President's illegal behavior during the last four years in ordering eavesdropping without complying with FISA's requirements will be cleansed of their criminal nature and made legal, as a result of this newly created "second way" of legally eavesdropping on Americans...

He concludes-

The White House insists that it has clear legal authority for warrantless eavesdropping, so why are retroactive amendments to FISA's criminal provisions necessary at all? And if we stand by and allow the Republicans in Congress to legislatively exonerate the President and his aides from breaking the law, it is hard to imagine what we won't stand by and tolerate. If the President can break the law and then use his party's control over the Congress to grant him legislative immunity from the consequences of his criminal behavior, no hyperbole is required to say that the rule of law exists only as an illusion.

And, once again, that's what this scandal is really about.

Meanwhile, an update to the case in the U.S. District Court in Detroit I wrote about on Monday, which is the first to look at the President's spying program. The case is quickly getting tied up in Orwellian gridlock, as the government's lawyers are refusing to cooperate and are insisting that this case should not even be tried because it's bad for national security for the courts to review the President's actions. Invoking the state secrets privilege, the lawyer said "the evidence we need to demonstrate to you that it lawful cannot be disclosed without that process itself causing grave harm to United States national security." Well that settles that then, no? As the NY Times notes, "The privilege can limit and even extinguish cases that would reveal national security information, and it is fast becoming one of the Justice Department's favorite tools in defending court challenges to its efforts to combat terrorism." Still, even if we accept their argument that revealing program details could be harmful, it ultimately irrelevant to determining whether or not the program is simply legal or not.

Anonymous Liberal, guest-blogging for Greenwald, summarizes this point-

The President and the Attorney General have publicly admitted that the NSA program involves exactly the sort of warrantless surveillance which FISA forbids. This is not in dispute. They claim, however, that the president has the inherent authority under article II and the statutory authority under the AUMF to disregard FISA's prohibitions. Those are purely legal arguments, the resolution of which in no way depends on the as-of-yet undisclosed details of the program.

So even if we take the administration's word that disclosure of these remaining details would be harmful to national security, it's hard to see how that matters. The government should not be allowed to invoke the "state secrets" doctrine to dispose of a case that can be litigated without reference to those "state secrets."

As a commenter to his entry notes- "The moment we start saying that what the law says (which is an inevitable consequent of saying what it allows) is a 'state secret', we've entered the realm of Kafka's worst nightmares." The Kafka-esque nature of the Bush administration's argument is further explored, in regards to their rendition and secrets prisons in addition to this wiretapping program, by columnist Michael Kinsley at the Washington Post. I'll give him the final word in this entry. He concludes-

It's true that you and I are not being grabbed on the streets and sent to a former secret police torture-training camp in Godforsakistan. Nor is the government eavesdropping on your international phone calls or mine. Probably. Because I like you, I'll forgo the usual ominous warning about how they came after him and then they came after her and then they came after you. I'll even skip the liberal sermonette about how even bad guys have rights.

But your rights and mine are not supposed to be at the whim of the government, let alone the president. They are based in the Constitution and the willingness of those we put in power to obey it -- even as interpreted by judges they may disagree with. The most distressing aspect of this story is the apparent attitude of our current rulers that the Constitution is an obstacle to be overcome -- by conducting dirty business abroad or by wildly disingenuous interpretations of laws and the Constitution.

Amen. And tell it to the Republicans.

[PS- Specter's at it again- threatening to subpoena White House documents on the program.]

[PPS- Total Information Awareness lives on... minus abuse protections.]

[Related reading from Nat Hentoff at the Village Voice-
Closing Our Courts:
Crying 'state secrets,' the administration seals the courts to avoid scrutiny]