The Foreign Intelligence Surveillance Act (FISA) and Title III of the Organized Crime Control and Safe Streets Act set out standards for communications surveillance. The NSA’s warrantless wiretapping of calls into or out of the US doesn’t comply with those standards. Neither does the massive capture of who-called-whom-when data revealed yesterday. That much isn’t in dispute.
But after passing Title III and then FISA, Congress passed the Authorization for the Use of Force Against Terrorists of 2001, sometimes known as the Use of Force Resolution. The Bush Administration claims, though not very convincingly to most experts, that the Use of Force Resolution constitutes authority beyond that provided for by FISA. In particular, the Bushies claim that the Use of Force Resolution authorizes the NSA domestic-spying programs. If so, the later-passed statute effectively repeals the earlier-passed statute. That’s a basic principle of statutory interpretation.
The Bush Administration has also claimed “inherent power” for the President to do anything he damned well feels like doing in “wartime.” Only the hard-core Bushies and royalists believe that, and not all of them.
Jane Harman has proposed that Congress now pass a new law, explicitly requiring that any eavesdropping or pen-register activity comply with FISA or Title III. If passed, that law would supersede the Use of Force Resolution, thus knocking the Bushite statutory-interpretation argument into a cocked hat and leaving it with only its transparently phony Constitutional argument.
So Atrios and Brad DeLong are both wrong to say that Harman’s proposal would have no legal effect because what it would forbid is already forbidden. If that law were passed and signed, there are officials within the intelligence community and the Justice Department who wouldn’t violate what would then be a clear statutory mandate.
Therefore, if the bill were passed, the President would veto it.
Therefore, the Republican leadership on the Hill will have to fight hard to keep it from passing, forcing some Republican Senators and Representatives to cast votes their constituents, and even some of their core supporters, will purely hate.
Forcing the ruling party into such tough votes is smart opposition politics.
Therefore, Harman’s proposal is right substantively and politically.
Footnote Harman’s bill was filed jointly with John Conyers.