The New Oversight

So the deal appeared to be this: we'll let you see information on how telecom companies broke the law, as long as you tell us in advance that they won't be held accountable for the lawbreaking.

Senate Judiciary Committee members yesterday angrily accused the White House of allowing the Senate Intelligence Committee to review documents on its warrantless surveillance program in return for agreeing that telecommunications companies should get immunity from lawsuits.

Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (Pa.), the ranking Republican, said any such agreement would be "unacceptable," signaling that legislation granting immunity to certain telecom carriers could run into trouble. Leahy and Specter demanded that the documents, which were provided only to the Intelligence Committee, be turned over to the Judiciary Committee as well.

I'm sure the letter was extremely strongly worded this time. They probably even used British and Canadian suffixes.

This is not the way it works, people. Congress doesn't get to see documents ONLY if they promise nothing will happen as a result. That's a mockery of democracy and the separation of powers.

And the documents apparently reveal lawbreaking:

Sen. Russell Feingold (D-Wis.), a member of both the Intelligence and Judiciary panels, said in an interview yesterday that the documents revealed that the NSA program was illegal. He said the presidential authorizations and the Justice Department opinions do not make it legal. "That makes it an executive power grab that is not justified by the statute or by the Constitution," he said.

Feingold had not seen the documents, however, saying he based his assertion on briefings from his Intelligence Committee aide, who reviewed the documents for several hours last Tuesday.

"Everything he saw and reported to me would indicate that the terrorist surveillance program involved was illegal and not something permissible given the clear exclusivity language in the statute," said Feingold, referring to current law, which specifies that FISA, along with Title III of the 1968 Wiretap Act, shall be the "exclusive" means to authorize domestic wiretaps.

Congress should not do the work that corporations could easily have done back in 2001. The issues are pretty clear here; wiretapping Americans without a warrant is legal in the real world, no matter what internal memos in the White House claim to justify it. The lawsuits are the only lever we have left to find out the truth of this program, and the Congress wants to help the Bush Administration in shutting it down. The precedent of lawbreaking followed by immunity is awful.

The proposal marks the second time in recent years that Congress has moved toward providing legal immunity for past actions that may have been illegal. The Military Commissions Act, passed by a GOP-led Congress in September 2006, provided retroactive immunity for CIA interrogators who could have been accused of war crimes for mistreating detainees.

Legal experts say the granting of such retroactive immunity by Congress is unusual, particularly in a case involving private companies. Congress on only a few occasions has given some forms of immunity to law enforcement officers, intelligence officials and others within the government, or to some of its contractors, experts said. In 2005, Congress also approved a law granting firearms manufacturers immunity from lawsuits by victims of gun violence.

"It's particularly unusual in the case of the telecoms because you don't really know what you're immunizing," said Louis Fisher, a specialist in constitutional law with the Law Library of the Library of Congress. "You don't know what you're cleaning up."

Useful idiots like Jay Rockefeller are trying to make an argument that the burden is on the Administration and not the private companies to make sure the program is legal. That's ridiculous. If I steal a car, is the burden on the government and not me to make sure stealing is illegal?

It's almost incomparable that the Democrats are going along with this absolute destruction of the rule of law. They really are abdicating their own authority.

Every now and then, we are tempted to double-check that the Democrats actually won control of Congress last year. It was particularly hard to tell this week. Democratic leaders were cowed, once again, by propaganda from the White House and failed, once again, to modernize the law on electronic spying in a way that permits robust intelligence gathering on terrorists without undermining the Constitution [...]

As the debate proceeds, Americans will be told that the delicate compromises were about how the government may spy on phone calls and electronic messages in the age of instant communications. Republicans have already started blowing hot air about any naysayers trying to stop spies from tracking terrorists.

No one is doing that. The question really is whether Congress should toss out chunks of the Constitution because Mr. Bush finds them inconvenient and some Democrats are afraid to look soft on terrorism.

...it was a very frustrating week in Washington. It was bad enough having a one-party government when Republicans controlled the White House and both houses of Congress. But the Democrats took over, and still the one-party system continues.

Amen.