Harman gets it right

Jane Harman proposes a law to rein in warrantless electronic surveillance. Atrios and Brad DeLong criticize the proposed law as superfluous.
Harman is correct.

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.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

9 thoughts on “Harman gets it right”

  1. If passed, he wouldn't veto it. He'd attached a signing statement saying that during emergencies he believes he can supercede it.

  2. Wouldn't it be smarter to make it a "sense of the Senate" type of resolution? By making it a formal bill, doesn't that concede the (ridiculuous) argument that AUMF somehow repealed FISA?

  3. Rob nailed it. This president does not accept limits to his authority no matter what Congress or the courts decide. If this program is to be shut down between now and 2009, impeachment is the only remedy.

  4. Discussions of this type of intrusion inevitably bring out the "I don't have anything to hide" crowd. Ceding the 4th Amendment comes so easy to many people. Ask them if they'd like glass walls on their houses. Nothing to hide, right? How about mailing a list to every household of every stop all their cars made the previous month. Dad gets mom's list and vice-versa. We'll just tag every car with a monitor and let everyone know all its travels. Nothing to hide, right? How about a high powered microphone by the watercooler at work. Nobody ever gossips or says anything untoward about the boss. Nothing to hide, right? Let's see, we'll publish on the internet everything you view on pay cable, a monthly summary accessible to all. Nothing to hide, right? Where do we stop? We don't, not until each of our daily lives are akin to the amoeba under the microscope, every undulation of its protoplasm noted and recorded. Happy monitoring!!

  5. Yes, Rob nails it. Another signing statment saying GW can disregard the law he is signing. Department of Redundancy Department.

  6. I don't have any strong objection to Harman/Conyers but damn, I wish we'd just enforce the existing laws and get on with it. Sounding like fogey I know, but the problem is enforcement, not the need for another law. Standing over The Decider and looking grim, we need The Enforcer!

  7. Rob is absolutely right. This bill would be signed and then ignored. But beyond that, FISA already has been re-affirmed subsequent to the AUMF, multiple times. The Patriot Act, which was passed subsequent to the AUMF and then renewed just a few months ago, is just a collection of amendments to FISA. The Patriot Act altered a number of provisions of FISA, but it didn't change the exclusivity provision (which is what makes the NSA program so obviously illegal). Therefore, Congress and the president have affirmed the validity of FISA at least twice subsequent to passage of the AUMF. The Conyers/Harman bill is therefore totally superflous. No judge would hold that a joint resulution like the AUMF superceded a statute that was specically amended multiple times after the resolution was passed. That argument is beyond specious, and every lawyer in the Justice Department knows it.

  8. What anonymous liberal said.
    I read all of the comments but one and still thought I had something to add, but then he stole my thunder. Better hope that his anonymity is really protected or I will follow him around and try to tell the punchlines to all his jokes.

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