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January 18, 2007

Bush retreats on executive power

The Washington Post has a good article on the Bush's capitulations to the rule of law and those pesky co-equal branches of government, Bush Retreats on Use of Executive Power: Allowing Court's Role in Surveillance Is Latest Step Back.

Bush's latest abrupt reversal is to abandon his NSA domestic spying program and let the FISA courts oversee the surveillance of terrorists.

Of course, he's probably not planning to bring back the old one warrant/one suspect rule:

Officials would not say, for example, whether the administration will be required to seek a warrant for each person it wants to monitor or whether the FISA court has issued a broader set of orders to cover multiple cases. Authorities also would not say how many court orders are involved or which judge on the surveillance court had issued them.

One official familiar with the discussions characterized the change as "programmatic," rather than based on warrants targeting specific cases. [WaPo]

Rep. Heather A. Wilson (R-N.M.), a member of the House intelligence panel, also referred to the new approach as "programmatic approval" and said it "does not have the protections for civil liberties" in FISA or in a bill she introduced last year. [WaPo]

I have no idea what "programmatic" means in this context. Is the idea that would-be wiretappers would ask for FISA authority to spy on large ill-defined classes of people, like, say, "al Qaeda and suspected al Qeada"?

The significance of the change seems to depend on the scope of a "program." If you give the FISA court so much leeway that it can authorize wiretaps on huge groups of or classes of people, without having to justify the surveillance of any individual in particular, you've just got a court-supervised violation of civil rights instead of a presidential fiat.


What a difference a year - and electoral disaster - makes. As Attorney General Alberto Gonzales defended the Bush administration's illegal NSA domestic spying last February, Republicans Senators rushed to the defense of the President and his program. Fast forward to yesterday's announcement by Gonzales that the White House was backing away from wiretapping without FISA court warrants and the GOP's histrionics seem all the more comical.

For the details, see:
"GOP Flashback: No Civil Liberties When You're Dead."

"you've just got a court-supervised violation of civil rights instead of a presidential fiat"

If you even go so far as to call that 'supervision'.

Lindsay, I don't believe for one second that this represents a "retreat" from Bush's (Cheney's) imperial ideas.

This is just another dodge designed to provide another talking point for the Reichwing choir to use to beat all the non-KoolAid drinkers.

Same stuff, different day...

A corrupt administration is playing word games while they violate our civil liberties.

It's just a retreat in the sense that he's gotten his ass kicked a few times and forced to act submissive. His agenda hasn't change.

Dan Froomkin sums it up:

[I]t's not quite so cut and dried. For instance, the black prisons are not closed, they were just emptied -- possibly temporarily -- in early September. And it remains unclear what if any restrictions on interrogation methods the administration is accepting, because they won't say. In late September, the traditional media initially described a Senate bill on detainee policy as a major compromise by the White House -- until it became obvious that the White House had actually gotten everything it wanted.

The consistent theme is that these "retreats" are so cloaked in secrecy and obfuscation that it's really hard to tell if they're retreats at all. Another example: Those "high-value" detainees moved out of the black sites are still being denied access to lawyers, on the grounds that the "alternative interrogation methods" to which they subjected are national security secrets.

yes, i agree with everyone about how this doesn't actually represent a retreat, but more probably a secret judicial sanction of pre-existing and continuing illegal behavior. but it's also important to recognize that bush is still being told that he can break the law whenever he wants to, and that goes for this new fisa law he's set up as well. HE DOESN'T THINK HIS ACTIONS ARE BOUND BY LAW. until we beat that back, nothing else really matters. (and the two steps forward, one step back strategy isn't a good one)

A few thoughts:

1) Bush has already lied about the NSA spying program. Why should we believe him now?

2) A lot of people in the Bush administration have been involved with previous administrations that flouted Congress (I'm thinking Iran-Contra).

3) Bush never accepts any boundaries to his behavior.

I simply don't believe that the NSA program will change one iota. Bush will simply lie to everyone and say that it is changing. After all, he's been arguing pretty vehmently that the program is necessary for national security. If he truly thinks that, no silly court is going to stand in his way.

Besides, by the time the legal proceedings are pursued that would be necessary for any Court to actually shut down this program, Bush will be out of office. I'm thinking pretending to obey the law will add at least 1 year of legal delays. Probably more than that.

Hearing the words " protections for civil liberties" and Rep. Heather Wilson(R-NM) uttered in the same sentence only makes me cringe.

Wilson was best known for her hysterical and emotionally disturbed committee testimony on the Janet Jackson Superbowl incident and helped to push along excessive FCC penalties and restrictions on free expression on network TV and radio.

Wilson's views on civil liberties seem to ignore little details such as the Bill Of Rights. Why she was reelected by the voters in her district is far beyond me.

Adding to what Froomkin says, the press utterly fails to connect the dots on what's going on here. These aren't a series of unrelated policy disputes; all of it is driven by the Cheneyites' radical views on Article II.

The administration doesn't give two shits whether the surveillance program continues. If it did, as Jack Balkin argues, it could've got everything it wanted from Congress five years ago. Even among liberal legal scholars the consensus is that the courts wouldn't have intervened on fourth amendment grounds. And the public overwhelmingly supports the program, so there would be little risk of it being reversed, even under a Democratic Congress.

But the public would overwhelmingly reject the Cheneyites' monomanical views on executive authority - if the matter were ever put before them, that is. That's why we get this idiotic kabuki dance, and it's all made possible because most reporters slept through civics class.

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