The Obfuscation Report

by Georgia10

Yesterday, we learned that the President has decided to "allow" judicial review of his illegal domestic spying program. The move was heralded as a "concession" by the White House, and the bill touted as a "compromise" that reflected a balance of interests:

WASHINGTON, July 13 -- After months of resistance, the White House agreed Thursday to allow a secret intelligence court to review the legality of the National Security Agency's program to conduct wiretaps without warrants on Americans suspected of having ties to terrorists.

If approved by Congress, the deal would put the court, the Foreign Intelligence Surveillance Court, in the unusual position of deciding whether the wiretapping program is a legitimate use of the president's power to fight terrorism. The aim of the plan, Attorney General Alberto R. Gonzales told reporters, would be to "test the constitutionality" of the program.

Let's put aside the sheer lunacy of framing the story as the President "allowing" the courts to do their constitutional duty. The spin of Gonzales aside, one thing is clear: the aim of the plan is to kill all the lawsuits currently pending about the NSA program. Simple as that.

You see, Specter's bill, which is being heralded as a "compromise" and "middle of the road" measure, does nothing to reign in the illegal actions of a power-hungry executive. Glenn Greenwald touches on this point in his analysis of the bill here and here .

I can almost picture Specter the Stenographer, furiously jotting down the administration's order, making sure to dot every "i" and cross every "t" so that the administration's ass is perfectly, wonderfully, and constantly covered.

To the reporters who tout this as a "compromise" measure, please direct me to the exact part of the bill that reflects any sort of concession by the White House. Let's recap, shall we?

• Telecom executives won't be forced to testify before Congress.
  
• The President is still free to use one of his infamous signing statements to avoid complying with the law. Indeed, the bill explicitly states that it "does not unconstitutionally retract any constitutional authority the president has" to collect information from foreign nations and their agents.
  
• As far as I can tell, the bill doesn't mandate that the program go to the FISA court for review. According to the New York Times, "The White House insisted that the language of Mr. Specter's proposal make it optional, rather than mandatory, for the administration to submit the program to the court because Mr. Bush was concerned about lessening "the institutional authority of his office," Mr. Specter said."
  
• According to Specter, the FISA court wouldn't have to make its findings public. So it could find the program unconstitutional, but no one would know its decision to be able to enforce it.
  
• Oh, and it gives the President the power to order anyone to spy on Americans without a court order:

  The bill would amend section 109 of FISA, 50 USC § 1809, which imposes a criminal penalty of up to five years in jail and a $10,000 fine for wiretapping Americans without a court order. It would accomplish this by allowing wiretapping at the direction of the president outside of FISA, accepting the theory that the president has inherent constitutional authority to wiretap without judicial oversight. It would also amend the criminal code, 18 USC §§ 2711(2)(e) and (f), to make it legal to
  wiretap outside of FISA at the direction of the president. link

But all of this is the side salad to the main entry--killing off the current lawsuits challenging the program. There are dozens of them initiated throughout the nation (the latest estimate I've come across is about 100. Seems high, though not entirely impossible). Each of those represents a chance that the program would be declared unconstitutional.

Specter's bill gives the government the power to halt all of these lawsuits and drag them into the dark shadows of the FISA court. It allows Gonzales--through a mere affidavit that the public proceedings may harm national security--to force a transfer to the super-secretive FISA court. Adjudication before the FISA court means that outside attorneys would not be able to present their client's cases to the court. It means limited access to evidence. It means secret decisions. And if that isn't repulsive enough, the FISA court would be allowed to dismiss a challenge to the spying program "for any reason."

This isn't a "compromise." It's a full-blown caving in to administration demands. How dare people refer to this bill as a "compromise." Compromise requires a give and take, it requires sacrifice by each side, not unilateral capitulation. It requires that fundamental interests are protected. I ask, what do Americans get out of this bill? Dismissals, secret trials, and the continued uneasy feeling of wondering if your every communication is being cataloged by the NSA.

And what does the President get out of this bill? A polishing of his crown, and validation of his erroneous belief that the President can behave like a King.