The Democrats unveiled their new proposal for a surveillance bill today. It is a document that is far more about contemporary politics than constitutional principle. The RESTORE Act is still better than the extreme powers demanded by the Administration, but it largely relies on systems that failed us in the past, including the use of the oversight committees.
Last August, the Democrats shocked many with their complete cave-in under pressure from the White House over the domestic surveillance program. This is a program that constitutes a federal crime and was ordered by the President, in full knowledge of its illegality, dozens of times. For prior testimony on this program, see United States House of Representatives, House Judiciary Committee (Democratic members), “The Constitutionality of NSA Domestic Surveillance Operation,” January 20, 2006. For the oral statement, click here Rather than call for impeachment proceedings or at least criminal investigations, Democratic leadership pledged to work with the President and to extend the life of the program. The White House immediately and predictably claimed that the Congress had affirmed that the program was not unlawful and that the President acted under color of law. It was one of the greatest affronts to civil liberties in decades.
In August, the Protect America Act passed with Democratic support (and no attempted filibuster), but it expires in February. Now, the democrats are proposing that the President merely obtain court approval every year for such intelligence programs. The proposal would require quartering reports on surveillance (which is better than the current system) but far less than what is required by the Constitution. They also insist that such surveillance reports be shared with congressional intelligence committees. This latter requirement is particularly intriguing since leading Republicans and Democrats on those committees knew of the unlawful program and did nothing. The ranking democrat got into trouble after the first disclosure of the program by explaining that she actually did not know enough about the FISA laws, which is the very heart of such surveillance operations. Jane Harman would later redeem herself in fighting the government’s efforts to roll back further. However, it highlights the problem with our current system.
Notably, the proposal does not include a legal immunity provision, because the White House has not given Congress the documents that it has demanded on the original program. The White House continues to game the system and refused to turn over the documents until October 22 — after the beginning of the floor debate on the legislation.
Nevertheless, the Democratic approach is being called a “sensible center.” It is a telling expression. A common feature of the President’s past tactics have long been to assume the most extreme possible position and Democrats automatically rush to the center of his spectrum. There is an alternative: it is called the fourth amendment to the United States Constitution. Federal judges are supposed to approve warrants for surveillance and the Framers never contemplated a secret court like FISA. They certainly would not be recognized this fluid, post hoc system. Some Democrats have now joined the President in actively seeking to circumvent the Constitution for their own political convenience. What remains is a Constitution that is increasingly becoming a decorative item in our “war on terror.”