Whatever should we do about the crimes of the Bush Administration? Why, fix the law so that it's not a crime anymore!
The federal government would have to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants, under a bill being proposed by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).
Specter's proposal would bring the four-year-old NSA program under the authority of the court created by the 1978 Foreign Intelligence Surveillance Act. The act created a mechanism for obtaining warrants to wiretap domestic suspects. But President Bush, shortly after the 2001 terrorist attacks, authorized the NSA to eavesdrop on communications without such warrants. The program was revealed in news reports two months ago.
Why bother holding the Administration accountable when you can easily offer a post facto justification by encoding their felonies in the law?
Although that might be technically true, the notion that the Specter bill would "bring the four-year-old NSA program under the authority of the [FISA] court" obscures what's so significant about the Specter bill -- namely, that it would bring the program "under the authority of the court" by providing statutory authorization for a program that is currently illegal.
The draft legislation isn't at all what Senator Specter has been talking about in recent weeks -- namely, a bill to facilitate judicial review of the legality of the current NSA docmestic surveillance program. This bill would appear to do absolutely nothing to address whether the current and ongoing program(s) is (are) permisisble under current law -- that is to say, it would not seek to facilitate judicial review of the AUMF and Article II arguments on which the Administration is relying.
As Glenn Greenwald notes, it is "disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them."
And it may be worse than that! For folks like me, who still care about what used to be called "freedom" (aren't we fighting a war somewhere to bring that to some folks?), this legislation can bring us right back to the bad old days of Nixon, Hoover, and COINTELPRO:
It's not simply a a reenactment of the "FISA framework" -- instead, it's a wholescale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.
Once again, I want to stress what I've said before: This whole program is unconstitutional, doesn't do anything that couldn't have been done legally under existing law, and actually undermines the struggle to identify and stop terrorists by overwhelming the intelligence community with too much unnecessary information. To oppose this program isn't to oppose security, it's to oppose the continuing expansion of executive power over every facet of American life. It was and remains an unwarrented (pun intended!) intrusion into the lives of ordinary Americans.
Im. Peach. Him!
UPDATE: More on the pro-impeachment front, from Lindsay:
Impeachment for FISA is a no-brainer. There's no question the president broke the law, and there's no question that his offense is a serious felony that he committed in his official capacity as POTUS. There are no nagging questions about whether his misconduct could be dismissed as a personal matter, or whether his misdeeds rise to the level of national importance. Nor is there any doubt that Congress has a duty to impeach any president who commits crimes on this scale--the alternative would be to put the president above the law.
Only practical questions remain: Do Democrats have the political power and the popular support to impeach George W. Bush. Right now, the answer is clearly no. However, the 2006 elections might drastically alter the balance of power in Washington. If and when they do, we should be ready. That means keeping the impeachment discussion alive until justice can be done.