Follow the Leader

"The deal, if adopted in Congress, would bring the activities of a National Security Agency surveillance program permanently under the law. It would permit the federal government, in certain circumstances, to listen to communications of U.S. citizens without a specific warrant. It would also expand government powers to monitor communications on topics other than terrorism. Before the Sept. 11, 2001, attacks, the government needed a warrant if it wanted to listen to any conversation involving a U.S. citizen."

In a statement, the ACLU's Caroline Fredrickson argues that, in addition to the immunity provisions: "This bill allows for mass and untargeted surveillance of Americans' communications. The court review is mere window-dressing -- all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole -- 'exigent' circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."

Reaction

Salon blogger Glenn Greenwald writes that "all the Attorney General has to do is recite those magic words -- the President requested this eavesdropping and did it in order to save us from the Terrorists -- and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was. . . .

"It's full-scale, unconditional amnesty with no inquiry into whether anyone broke the law. In the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected."

He also notes: "[I]sn't it so odd how this 'compromise' -- just like the Military Commissions Act, the Protect America Act and all the other great 'compromises' from the Bush era which precede this one -- is producing extreme indignation only from those who believe in civil liberties and the rule of law, while GOP Bush followers seem perfectly content and happy with it? I wonder if that suggests that what the Democratic leadership is supporting isn't really a 'compromise' at all."

Laura Rozen blogs with a few questions about telecom immunity: "Doesn't that actually endorse and extend to private actors the Nixonian view that if the president says it's legal, it's legal, regardless of what the law says and the Constitution says? Wouldn't that set an awful precedent that an administration could get private actors to do whatever they wanted including breaking the law?"

Legal blogger Marty Lederman mocks the big concession Democratic House leaders are crowing about: "The Democrats worked long and hard to include in the bill a provision (stating that FISA and other specified statutes are to be 'the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted') that is, for all intents and purposes, a reenactment of the current 18 U.S.C. 2511(2)(f), which has been the backbone of FISA for 30 years. . . .

"My favorite bit, however, is [House Speaker Nancy Pelosi's] expectation that 'the language would prevent Mr. Bush, or any future president, from circumventing the law.' Yeah, right -- just as it 'prevented' President Bush from authorizing wholesale violations of FISA from 2001 until 2007. (Note to Speaker Pelosi: President Bush's official view, vigorously defended by the Department of Justice, is that the 'exclusive means' provision is unconstitutional, and can therefore be disregarded. FYI)"

Senator Russ Feingold issued this statement: "The proposed FISA deal is not a compromise; it is a capitulation.... Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration."

Editorial Board Watch

The New York Times editorial board blogs: "Balance? Only if you consider it balance to tip the scales heavily toward letting the government spy on its citizens whenever it wants and away from the public's privacy rights."

The Washington Post editorial board, by contrast, concludes: "Congress shows it still knows how to reach a compromise in the national interest."

The Wall Street Journal editorial board writes: "The best news about yesterday's White House-Democrat deal on overseas eavesdropping is that the ACLU and the anti-antiterror Internet mob are apoplectic. This can only be good for U.S. national security."