Monday, June 19, 2006


yes, i know — politicians lie, fib, equivocate, prevaricate, fabricate, dissemble, misinform and mislead like fish breathe water — not exactly breaking news.

but senate intelligence committee chair arlen specter seems to have told us a desperate ass-saving whopper that needs to be called out.

you'll recall my post "the not ready for prime time players", which highlights specter's cowardly proposal to grant amnesty to administration officials who may have broken federal law by engaging in the widespread warrantless wiretapping of american citizens. if blanket amnesty for the bush administration weren't craven enough, specter's proposal, if granted, would also make that amnesty retroactive to 1978, the year congress enacted the fisa statute, which created the fisa court, the only judicial body charged with reviewing federal warrant applications on matters of national security.

which means that every illegal espionage act for the past thirty years would be summarily disregarded with only a signature. so much for the party of accountability.

you'll also recall in the update to that post, that news of specter's call for amnesty seems to have been the result of a gross misreading of the proposed legislation by the washington post. it seemed that specter's bill wasn't quite as servile and loathsome as we've come to expect from the rubberstamping politburo we used to call congress. specter's immediate, vociferous and unequivocal prime-time denials seemed so genuine — or was it our desperate wish to believe that congress would not so eagerly castrate itself for a president whose approval ratings rival nixon's that made us so gullible?

glenn greenwald: i have now obtained (with the help of the aclu) a copy of specter's marked-up proposed legislation, which makes quite clear that specter simply was not telling the truth when he denied proposing amnesty to the administration. the bill in question was one which specter substituted last week in the judiciary committee for the prior legislation he proposed back in march (the reason the new version was not available online was because — according to the aclu — he introduced it only in the committee, but not yet on the senate floor).

in sum, specter's legislation amends the provision of fisa which provides for criminal penalties, and then, astonishingly, makes those revisions retroactive all the way back to 1978 (when fisa was enacted). the effect and almost certainly the intent of those revisions is to immunize the president and anyone acting under his authority from criminal liability for violating fisa — just as the post and the aclu correctly reported, and just as specter falsely denied.

... 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).

... section 801 of specter's proposed bill specifically provides that "nothing in this act shall be construed to limit the constitutional authority of the president to gather foreign intelligence information or monitor the activities or communications of any person reasonably believed to be associated with a foreign enemy of the united states." that language tracks precisely the language used to define the parameters of the warrantless eavesdropping program, and it makes crystal clear that its intent is to declare legal the nsa program. and that provision is one of the provisions that has retroactive application back to 1978, which means the specter bill goes back in time — 28 years — and transforms fisa from a statute which has always regulated the president's eavesdropping power into one which places no limits on that eavesdropping power of any kind.

... what is extremely noteworthy — and worth emphasizing — is that arlen specter amended his legislation to include the most extremist provision imaginable (retroactive amnesty for criminal behavior), all in order to please the president's allies on the judiciary committee (led by sen. kyl) — who, as always, are marching to the dictates of the white house, which obviously is willing to accept new fisa legislation only if it provides them with immunity from criminal prosecution for their lawbreaking.

but even more notable still is the fact that after engaging in this behavior, specter went on national television and dishonestly denied that he was doing that.... specter was so embarrassed by his amnesty provision once the post revealed it that he simply denied that his legislation contained it even though it so plainly does.

specter's dishonesty aside, these shenanigans reveal what the white house is really after. their senatorial minions are going to support nsa legislation only if it contains full amnesty for the lawbreakers in the administration. the white house will then "reluctantly" agree to a newly revised fisa, and will have full immunity from criminal prosecution. specter will be the primary sponsor of this, and the media will drool over his "maverick" status and suggest that it's unreasonable to argue that specter is acting as the obedient white house shill that he always, in the end, becomes. if even the independent, rule-of-law-loving specter advocates amensty, then doesn't that show that it's reasonable?

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.

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