Countdown to more warrantless spying

Even GOP leaders now concede that a new bill to deal with Bush's domestic eavesdropping is unlikely to come soon.

Published September 26, 2006 10:55PM (EDT)

If this report from the Associated Press's Laurie Kellman is true, it is the best news to come out of Washington in some time: "Congress is unlikely to approve a bill giving President Bush's warrantless wiretapping program legal status and new restrictions before the November midterm elections, dealing a significant blow to one of the White House's top wartime priorities."

Democrats haven't done anything to impede a new eavesdropping bill. Instead, there are simply too many competing bills in play on the Republican side. As AP explains, citing two unnamed GOP aides: "House and Senate versions of the legislation differ too much to bridge the gap by week's end, when Congress recesses until after the Nov. 7 elections." The FISA bill introduced by Arlen Specter (in collaboration with the White House) was sent to the Intelligence Committee, where it remains. It is highly doubtful it will be reported to the floor prior to adjournment. In the House, the principal bill is a slightly more restrictive one sponsored by Republican Rep. Heather Wilson, who is in a tough reelection fight in her New Mexico district and is under pressure to demonstrate that she is not a rubber stamp for the White House, as she has in fact been for most of her tenure. Complicating the situation is the need to satisfy various GOP senators who have expressed concern about different parts of the FISA legislation. The White House and congressional leaders simply appear to have run out of the time necessary to satisfy all of those constituencies.

There would still be an opportunity to enact a bill legalizing the president's warrantless eavesdropping program in the so-called lame-duck session after the midterm election in November (before the newly constituted Congress begins). But in that session, Democrats would be relieved of the pressure imposed by an imminent election and, especially if they take over one of the houses, would presumably feel far freer to take bold action against it.

If there is no new FISA legislation until after the November election, it also means that the president's warrantless eavesdropping program will continue to be in violation of the criminal law. If the Democrats take control, that could give a new Congress -- potentially with a Chairman Leahy controlling the Senate Judiciary Committee or a Chairman Conyers controlling the House Judiciary Committee -- free rein to use their subpoena power to investigate the president's illegal eavesdropping activities. Moreover, it would also ensure that various lawsuits challenging the legality of the NSA program can proceed unimpeded -- while the Specter bill and several other GOP bills would transfer all such lawsuits to the secret FISA court and impose new hurdles on the plaintiffs.

It is certainly possible for all of the obstructionist Republicans to capitulate quickly and agree on a bill to legalize warrantless eavesdropping this week. One should never underestimate the capacity of congressional Republicans to fall into line, in President Bush's hour of need. But if only for procedural reasons, it seems highly unlikely that there will be time in this session of Congress to give the president the legal authority to eavesdrop on Americans with no judicial oversight. That is a real cause for celebration among advocates of the rule of law.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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