(updated below - Update II - Update III)
The enactment in August by the Democratic Congress of new eavesdropping powers for the President was one of the worst, if not the single worst, acts of capitulation to the Bush White House. The only comparable disgrace was the Democrats' complete failure even to attempt a filibuster of the Military Commissions Act, largely due to their decision to allow John McCain, John Warner and Lindsey Graham to speak for them so that they did not have to participate in the debate. Once those three GOP Senators predictably blessed the MCA, Democrats had no strategy and thus actively enabled the abolition of habeas corpus along with the other abuses that Act legalized.
The FISA capitulation, though, was probably even worse. It occurred when they supposedly control the Congress. They enlarged the President's powers under the very law that he has been violating for years. They gave the Bush White House what it demanded even though the White House continues to provide them with no meaningful information about what was done during all those years when they eavesdropped on Americans in secret. And Democrats passed the law in a frenzy, under the crassest and most transparent exploitation of the Terrorist Threat ("a Terrorist attack is about to happen in DC and the blood will be on your hands unless you pass the bill we dictate").
Ever since that debacle, many Democrats have clung to the illusion that all of this will be fixed because the bill was passed with a six-month sunset provision and, some hope, the next time things will be different. But far, far more likely than the Democrats reversing what they have done when re-visiting FISA is the prospect that they will make it worse still, by giving the Bush administration even more of what it wants.
Specifically, almost immediately after the Democrats enacted the new FISA, the Bush White House and DNI Mike McConnell began demanding that Congress quickly go further by providing retroactive immunity to telecom companies who participated in warrantless eavesdropping by shielding them from the consequences of having broken the law. Once it had what it wanted on FISA, the White House decreed (bolded commands in original):
Our Work Is Not Done -- This Act Is A Temporary, Narrowly Focused Statute To Deal With The Most Immediate Needs Of The Intelligence Community To Protect The Country. When Congress returns in September, the Intelligence Committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director of National Intelligence Mike McConnell, including the important issues of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.
Buried within an article in the New York Times this morning from James Risen is this passage, strongly suggesting that Congressional Democrats are ready, as always, to do what they are told:
Mr. McConnell argued on Tuesday that the expanded surveillance powers granted under the temporary measure should be made permanent.
He also pushed for a provision that would grant legal immunity to the telecommunications companies that secretly cooperated with the N.S.A. on the warrantless program. Those companies, now facing lawsuits, have never been officially identified.
Democratic Congressional aides say they believe that a deal is likely to provide protection for the companies.
Granting retroactive immunity to telecom companies for past lawbreaking is so plainly unjustifiable, even dangerous, that it ought to require no real debate. That Congressional Democrats are even considering submitting to this demand, let alone that they are likely to do so, dispels any doubt about what they really are.
First, retroactive immunity turns the "rule of law" into an even greater mockery than it has been for the last six years. The central premise in granting immunity is that telecom companies did nothing wrong -- even if they violated the law -- because they cooperated with warrantless spying at the behest of the President.
But we don't actually live in a country where private actors are permitted to commit crimes and violate laws provided that the President tells them that they should. The President has no greater power to authorize others to break the law than he does to break the law himself. Quite the contrary, Article II of the Constitution imposes the opposite obligation: "he shall take Care that the Laws be faithfully executed." Lawbreaking is still illegal even if George Bush says it should be done. Does that principle really need to be explained?
Second, the Bush administration -- by refusing to disclose whose conversations were illegally surveilled -- has successfully prevented any direct legal challenges to its warrantless eavesdropping activities. The Sixth Circuit this year dismissed the lawsuit brought by various citizens alleging the Bush administration illegally spied on Americans on the ground that the inability of any specific plaintiff to prove they were subject to that surveillance means that no citizen has "standing" to challenge the legality of the program. As a result, the 2006 ruling by Judge Anna Diggs Taylor that Bush's warrantless eavesdropping activities violated both federal criminal law and the U.S. Constitution was vacated (without its substantive findings disputed).
The pending lawsuits against AT&T and other telecommunications companies for having violated the law by enabling warrantless eavesdropping on Americans' telephone conversations is one of the very few remaining avenues (though not yet the only one) for obtaining a court ruling as to whether the NSA spying program -- which the President ordered for five years at least -- was illegal. If Democrats do what the Times article suggests they are prepared to do, i.e. grant retroactive immunity to telecoms, that would compel dismissal of those lawsuits, which in turn would destroy what is perhaps the last chance for ever obtaining a judicial determination as to whether the President broke the law. What possible rationale would lead them even to consider such a thing?
Third, and perhaps most importantly, a Congressional grant of immunity for past lawbreaking would amount to a bipartisan endorsement of Bush's illegal eavesdropping program. To remove consequences for illegal behavior is, by definition, to approve of that behavior. Laws with no consequences for violations are meaningless. And those who seek to shield lawbreakers from accountability are endorsing the lawbreaking.
This underscores what I think is a critical point that cannot be emphasized enough. In late 2005 and early 2006, when I and others first began writing about the assault on our Constitution from this administration in the wake of the NSA scandal and the Jose Padilla travesty, the overarching issue was lawlessness. The administration's most radical and disturbing "terrorism" policies were undertaken without any legal authorization whatsoever, and frequently, in direct violation of the law.
But over the past twelve months, that has become less and less true. On every front of executive power -- from surveillance to detention to interrogation -- what was previously covert, lawless radicalism has now become the legally authorized and Congressionally endorsed policy of the United States, on a bipartisan basis.
On a strictly quantitative level, it is true that Republicans have been more supportive than Democrats of these policies -- in the sense that more Democrats cast votes against them -- but Democrats have done nothing meaningful to stop any of it, even when they could. Indeed, paradoxically, Democrats have actively enabled and endorsed this extremism more and more as they have gained more power. As a result, what were the illegal policies of the Bush administration have become lawful as the result of a Congress which does nothing when executive lawbreaking is revealed except enact legislation to legalize the behavior.
If the Democratic Congress ends up not only renewing and making permanent the vast new warrantless surveillance powers granted the President under the new FISA, but also provides retroactive immunity to telecom companies which violated the law, then illegal warrantless eavesdropping will be every bit as much a by-product of the Democratic Congress as it is one of the defining abuses of the lawless Bush administration.
Last October -- when Republicans still controlled the Congress -- the Bush White House tried but failed to force Congress to legalize warrantless eavesdropping and provide this immunity. Karl Rove made the failure to legalize warrantless eavesdropping a central feature of his midterm election campaign, and Republicans got crushed.
Thus, the very idea that the Bush White House would be able to force enactment of FISA legislation once Democrats controlled the Congress would have seemed unfathomable, at least to many people. But after watching the Democrats meekly sit by and allow abolition of habeas corpus and then, when in control of Congress, grant the President vast new surveillance powers without receiving anything in exchange, it is inescapably clear that there are no limits on the willingness of Congressional Democrats to enable the President's worst excesses. If this NYT story is accurate and they really do intend to provide this retroactive immunity, their joint responsibility for most of the excesses of the Bush administration will be virtually complete.
UPDATE: Making the White House's demand for retroactive immunity all the more outrageous is that it is all based on the alleged judgment of Mike McConnell that such immunity is Vital to National Security. Yet McConnell, aside from having proven himself to be entirely untrustworthy in the standard Bush way when it comes to such claims, is the last person who ought to be listened to when it comes to the telecom debate. As much as any other single American, McConnell has extensive private sector connections with the very telecommunication companies for which he is now demanding immunity.
Indeed, McConnell's ties to the very companies that would most benefit from immunity are so deep and numerous that it really rises to the level of conflict of interest for him to demand -- on national security grounds, no less -- that they be granted full immunity from liability for past illegal acts. He is, in essence, demanding immunity for vast numbers of his former partners, clients, associates and scores of business interests in which he had, if not still has, a substantial stake. That Democrats would grant immunity based on his demands for it makes the whole spectacle all the more repugnant.
UPDATE II: Today's efforts by Senate Democrats, led by Chris Dodd and Pat Leahy, to repeal part of the Military Commissions Act and restore habeas corpus is a good example of how Democrats are quantitatively better on these issues, though often in ways that make little difference. According to Dodd campaign aide Matt Browner Hamlin, there is a chance that they can get 60 votes in support of cloture on this bill to restore habeas. All Democrats and several Republicans in the Senate have vowed to vote for cloture, and several other "moderate" Republicans are still undecided. FDL has the information for targeting the key GOP swing Senators.
Having the Senate and House vote to restore habeas corpus and thus vote to reverse the worst aspect of the many atrocious provisions of the MCA would be a welcome development. But the chance that habeas would actually be restored now is non-existent, since the President would veto the bill and they would not get 67 votes to override.
Having allowed enactment of the MCA back in October, it is nice that Senate Democrats are leading this effort, and some -- including Dodd and Leahy -- are undoubtedly passionate about it (though that passion failed to mount a real resistance effort last October when it would actually have protected habeas). But these efforts are more symbolic than anything else. "Terrorist suspects" detained indefinitely by the Bush administration will have no greater opportunity to contest the accusations against them even if they get the cloture votes.
UPDATE III: The vote to restore habeas failed, 57-43 in favor of cloture (3 votes shy of the 60 needed to overcome a GOP filibuster). All Democrats favored cloture, along with 6 Republicans. But the vast majority of Senate Republicans (37 out of 42) blocked the restoration of habeas corpus.
With regard to FISA immunity, JAO in comments makes the important point that FISA, from its inception, already provided that telecoms would be immune from liability if the Attorney General certified that the law did not require a warrant for the surveillance that they allowed. Presumably, that means that with regard to what they did over the last six years, they had no such certification for at least some of Bush's warrantless activities which they enabled.
They may have lacked this certification because Ashcroft refused to provide it, and/or because Ashcroft was kept in the dark about some of what they were doing, and/or because they are concerned about the period of time when (as we now know, as a result of James Comey's testimony) the DOJ refused to certify the legality of the surveillance activities (and threatened to resign en masse if it continued), and Bush ordered it to continue anyway. If we lived in a society with either an open government or a Congress that understood its oversight responsibilities, we would know why the telecoms lacked this certificate and thus are in need of retroactive liability. Since we don't, we're left to guess.