Dem Leadership Tout Law's New 'Exclusivity' Provision, But None of Three Dems I Tried to Contact Can Adequately Explain Why They're Not Being Fooled Again...
By Steve Heller on 7/1/2008, 11:54am PT  

Guest Blogged by Stephen Heller of

House Majority Leader Rep. Steny Hoyer, (D-MD), one of the new FISA bill's strongest champions, spoke about the bill's new "exclusivity provision" on the floor of the House on March 14, 2008. He proclaimed that "It clarifies that FISA is the exclusive means of conducting surveillance in the United States for foreign intelligence purposes."

On June 20, Hoyer optimistically echoed his previous comment: "This legislation makes clear that FISA is the exclusive means by which the government may conduct surveillance."

Sen. Dianne Feinstein, (D-CA), in an email sent to some constituents, including myself, wrote that the new FISA bill: "Includes provisions I authored that make clear that FISA is the exclusive (or only) authority for conducting surveillance inside the United States...FISA would be the only legal authority for conducting surveillance on Americans for intelligence purposes..."

But the old FISA bill, which was the law when Bush began to spy on us without warrants, also had an "exclusivity" provision that stated:

[P]rocedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Since the "President" ignored the old FISA law, despite its existing exclusivity provision, what makes Hoyer or Feinstein or any of the other Dems think he'll bother to obey the new version of the law?

The existing law didn't keep Bush from breaking it last time, so it's beyond me what makes law makers think he won't do the same this time around. I decided to contact three different Democratic officials, all in favor of the new law, to try and find out why they believe they won't be fooled again...

Regular readers of The BRAD BLOG, being smarter and better informed than the average person --- ;-) --- likely already know that the House recently passed the new FISA bill which includes a simple path to retroactive immunity (amnesty!) for the big telephone companies, indemnifying them for agreeing with the Bush administration to break the law and illegally wiretap American citizens.

The House bill had bi-partisan support, with 105 Democrats joining 188 Republicans in voting "yea." The same version of the bill now awaits a vote in the U.S. Senate, which, as of this writing, is likely scheduled to occur on July 7th. It's widely expected that the bill will pass in that chamber as well, and Bush has indicated he will sign it into law. I'm not surprised he's going to sign it, because as Sen. Kit Bond, (R-MO) said, "I think the White House got a better deal than they even had hoped to get."


In this post, I'm not going to deal with the maddening and terrible decision to have the courts decide not if the Bush's warrantless wiretapping program was illegal, and not whether the telecoms who helped him spy on Americans without a warrant broke the law. The new bill gives the courts only the power to determine whether or not the telecoms received assurances from the "President" that the program was legal, whether it was or not. If so, the telecoms, and the Bush administration, will be given amnesty for any violation of the law. This is retroactive immunity, although the bill's supporters won't call it that. And of course, perhaps most importantly, it also means retroactive immunity (amnesty!) for George W. Bush.

But I'll save my ranting and raving about the idiotic and horrible immunity provision (as well as some other horrible provisions of this bill) for another post. This post is about the exclusivity provision in the new FISA bill, and the assurances we're getting from some in Congress that this provision will somehow prevent the executive branch from doing any more illegal, warrantless spying on Americans.

Fooled Once...

Bush claimed that legal opinions from the Department of Justice determined that the 1978 FISA bill, the one in force when he began his warrantless spying on Americans, did not apply to surveillance done in the name of national security.

He also claimed that the 2001 Authorization to Use Military Force (AUMF) allows for warrantless electronic surveillance of Americans.

Bush also insisted that Article II of the Constitution gives him the power to conduct warrantless electronic surveillance on American citizens as part of his War on Terror™, and that Congress does not have the power to stop him.

So much for the co-equal branches of government, eh?

I spoke with staffers at Feinstein's office, and they were very helpful. They told me that the Senator rejects the "President's" legal arguments. Feinstein, they said, believes that the new FISA bill's exclusivity provisions do "as much as is possible in legislation" to prevent this "President" or future Presidents from engaging in warrantless spying on Americans by restating the 1978 FISA law's exclusivity provision, and then making it clear that the new FISA law has criminal penalties for surveillance conducted outside of FISA, so the "President" can't claim that ignoring FISA is not a crime.

Also, Feinstein's office insists that the new bill makes it clear to the DoJ, as well as the telecoms, Internet Service Providers (ISPs), and any other private companies that, should the government ask for help in domestic surveillance, FISA is the only avenue through which domestic surveillance may be legally conducted.

Another reason the Senator is comfortable with the exclusivity language of the new bill is because of a letter received from Attorney General Michael Mukasey and the Director of National Intelligence agreeing that the new FISA exclusivity provision goes beyond the 1978 statute, and that the new law will not interfere with or constrain intelligence activities that they deem necessary to protect the United States from attack.

Feinstein's spokesman Scott Gerber sent me an email stating:

The clear goal of this language is to prevent this or any future Administration from thinking it can conduct warrantless surveillance inside the United States legally. It cannot. [A]nyone asked to carry out, assist, or render judgment on any potential future warrantless surveillance program will know that it is a federal crime to do so."

Okay. But...

Fooled Again...and Again...and Again...

I agree that the new FISA statute contains a provision that makes it clear FISA is, as Feinstein wrote in the email she sent to constituents, "the exclusive (or only) authority for conducting surveillance inside the United States." Just like the old FISA law.

And I agree that the new exclusivity provision is stronger than the old one.

But will Bush actually obey the new law?

He ignored the old law, and I can't see why anyone believes he will follow the law this time.

Bush has decided previously that the law did not apply to him. He knowingly broke the law and violated the Fourth Amendment. That's called a "crime." Perhaps even a "high crime", since he did, twice, publicly swear to "protect and defend the Constitution from all enemies foreign and domestic."

He has not, and it seems likely that he will not, be held accountable for either that crime or any of his other crimes, high and otherwise.

The Democrats seem to lack the spine to do anything more than issue subpoenas they won't enforce or write Sternly Worded Letters™.

This is a "President" who not only ignored the FISA law, he's also ignored the Geneva Conventions and authorized the torture of prisoners. He's created secret laws. He's imprisoned children, detained American citizens without charges, kidnapped people through a "secret rendition" program, falsified details about U.S. troop deaths for political purposes, and engaged in a conspiracy to violate the Voting Rights Act of 1965. I could go on, but that's enough for now.

Is there any crime this guy won't commit?

This kind of Executive branch behavior is unprecedented in our history and is so far off the rails of the Constitution and the law that it's a threat to the very foundations of our Republic.

Bush is, quite simply, a man out of control.

So I asked Feinstein, Hoyer, and my own House representative, Brad Sherman, who voted for the bill, what makes them believe that Bush, or any future President, will follow the law when there has been and apparently will be no punishment or accountability for not following the law?

Their answers left me less than satisfied.

Feinstein's office told me that they are essentially informing Bush that what he did was illegal, and they're going to close every loophole they can so that he, along with future Presidents, can't do it again.

I can't imagine why she thinks this legislation will keep King George in check any better than the old legislation did.

Hoyer's office said... well, they didn't say anything, because his press secretary, Stephanie Lundberg, wouldn't return the two voicemail messages I left her. Maybe readers of The BRAD BLOG, especially those in Maryland's 5th district, should give Rep. Hoyer a call at (202) 225-4131 and ask him why he thinks Bush will obey the new FISA law when he didn't bother to obey the old one. And tell 'em The BRAD BLOG sent you. ;-) If you get any response from him or his office, post it in the comments section below.

My own House representative, Brad Sherman (D-CA), voted in favor of the bill as well, which surprised me; he's usually a very reliable Progressive. His spokesman told me that "The decision to vote for the [FISA] legislation was a difficult compromise he [Sherman] felt he had to make." But there was no comment from his office on why Sherman felt he had to make that decision, whether or not he thinks Bush will actually obey the new FISA bill when it becomes law, and, if he does believe Bush will obey the new law, why he believes it.

Color me unimpressed.

I do believe that these three members of Congress are sincere in their efforts to reign in Executive branch abuses of power and to stop this "President" and all future Presidents from spying on Americans without warrants.

But I absolutely do not share their confidence that the new FISA law will accomplish this, unless Bush is actually held accountable for his past crimes.

Bush broke the law using flimsy legal "reasoning" that any first year law student could have cut to ribbons. (By the way, if the "Just Us" Department had made it a point to hire good lawyers, instead of hiring only rightwingers who also happened to have legal degrees, this might not have happened.)

And Bush is going to get away with it.

I believe that since Congress continues to be supine to Executive branch bullying and disregard for the rule of law, Bush will again violate the FISA law. And so will future Presidents.

Once someone is allowed to criminally abuse his authority and power --- a President, a governor, a mayor, a cop, a teacher, whatever --- he will almost certainly continue to abuse that power unless and until he is punished for his crime.

And when those who abuse their power and authority aren't held accountable, those who later assume power and authority are also likely to abuse it. "Hey, the other guy did it and got away with it, so I can too."

Bush is a dry drunk who has never had to face accountability for anything in his life, either before or after he was appointed President, and he's not been taught that doing naughty things like spying on Americans without warrants, or authorizing the torture of prisoners, or creating secret laws without approval of Congress or the courts, is illegal and wrong.

And because the opposition party --- if you can call the Democrats "opposition" --- won't punish Bush for his crimes, he'll continue to break the law. Bet on it.

Bye-bye, Fourth Amendment. We hardly knew ye.

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