Democrats Snatch Defeat from Jaws of Victory on FISA
With their shocking surrender over President Bush's draconian new FISA law this weekend, Congressional Democrats snatched defeat from the jaws of victory. They not only had the votes to safeguard American civil liberties and prevent the legalization of past Bush White House criminality. On FISA as we knew it before August 5, 2007, Democrats had the law - and public opinion - on their side.
Until President Bush signed the so-called Protect America Act, his regime of warrantless NSA domestic surveillance rested upon a very shaky three-legged legal edifice. The first claimed by Bush apologists such as John Yoo, as I wrote in February 2006, was that Congress' 2001 Authorization for the Use of Military Force (AUMF) gave the President a blank check to intercept the international communications of U.S. residents without warrants. The second, more sweeping assertion was that the so-called Terrorist Surveillance Progrram fell within the President's Article II power as commander-in-chief. Together, the President's amen corner at the DOJ asserted, these powers granted by Congress and the Constitution allowed the Bush administration to bypass the clear intent of the 1978 Foreign Intelligence Surveillance Act (FISA).
But as I detailed earlier, the overwhelming consensus of the American legal community is that these broad claims of war-time executive power are baseless:
Sadly for the Bush administration, the overwhelming weight of constitutional opinion is working against them. In a February 13th letter, the American Bar Association cautioned President Bush against acting outside of FISA, and urging adoption of its recommendations to ensure the fight against Al Qaeda "is conducted in a manner reflective of the highest American values." On January 9th, 2006, a distinguished, bi-partisan group of American constitutional legal experts and scholars wrote to congressional leaders and strongly rejected the arguments put forth by the Bush administration:
The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.
Which brings us to the little-noticed third leg of President Bush's stool (so to speak) supporting unprecedented domestic spying by the National Security Agency: GOP claims that FISA itself is unconstitutional.
Like Oscar Wilde's "love that dare not speak its name," declarations that FISA itself was an unconstitutional intrusion upon presidential war powers are left only to Bush's most extreme advocates and generally behind closed doors. In 2006, Senators Mike Dewine (R-OH), Pat Roberts (R-KS), Bill Frist (R-TN) and Attorney General Alberto Gonzales himself all stopped short of claiming that the FISA law was an unconstitutional check on the President's ability to monitor Americans' communications without warrants. (For the details on their sheepishness on this point, see "The Republicans' Constitutional Crisis.")
Their fears about challenging FISA head on were justified. There is little doubt the administration would have lost that legal argument, not only at the bench but in the court of public opinion. While President Bush has been only too happy (and too successful) to bludgeon Democrats' with the fear of terrorist attacks should his spying be curtailed, telling the American people that a 30 year-old law passed by Congress was unconstitutional would have been a losing proposition.
Alas, that is all moot now. When 41 Democratic Representatives and 16 Senators cowardly capitulated to President Bush last weekend, the Democratic Party folded while holding a full-house. They had the votes to stop President Bush and instead challenge him with a new FISA law reinforcing both Congressional oversight and the essential warrant approving power of the FISA courts. They had public opinion on their side, with a wildly unpopular President and moribund Attorney General as foe. (Polls even show that the American people now trust Democrats over Republicans to fight terrorism and manage the war in Iraq). And perhaps most importantly, opponents of the illicit NSA domestic surveillance scheme had the law on their side. As Kate Martin of the Center for National Security Studies put it, "this more or less legalizes the NSA program.'
Instead of enjoying a crowning victory for civil liberties in the United States, these Democrats enabled President Bush to put them at far greater risk. And just as damaging, they may have in their act of surrender resuscitated a dying presidency, handing President Bush a life-giving victory that may have reinvigorated him and a Republican Party that just days ago looked down for the count.
And looking ahead, it will only get worse. When this temporary FISA abomination sunsets in six months, President Bush will be looking for legal protection from liability for his administration and its telecommunications partners in domestic surveillance.
This past weekend, Democrats gave President Bush a time-machine. It will be as if the illegal, warrantless spying on Americans that he commenced after 9/11 never happened, with the criminals unpunished and their crimes undone. And our civil liberties, too, may soon be erased and fade from memory.
(For more background on the Bush administration's feeble past justifications for then-illicit program of NSA domestic surveillance, see "The Republicans' Constitutional Crisis." For the latest news, documents, legal developments and other essential materials, see "The NSA Scandal Documents Center.")