a lot of Constitutional scholars who make some of those same arguments warn that this is a simplistic view of a bad bill. They also discuss the implications of the bill (law) under a Democratic president.
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Indeed, the fact that Congress is now giving the President the authority to do much of what he was probably doing (illegally) before suggests that Bush's illegal program has to a large degree been ratified by Congress. If you want a historical example, although not a perfect one, it is Lincoln's decision to (illegally) suspend habeas corpus, which was later followed by Congress's ratification of Lincoln's suspension. It is true as a formal matter that Congress has not officially approved of what Bush has done, and it has granted immunity only to the telecom companies, and not to those Administration officials who, in effect, conspired to violate FISA. But at this point I am doubtful that the next Administration will try to prosecute former officials for violating FISA, especially now that Congress has effectively blessed the formerly illegal programs. If this is not a ratification in form, it is surely one in substance.
The lesson is that there are at least two different ways for the executive to increase his power. One is when the President seizes power through unilateral action. The second is when Congress gives it to him. In 2001 Bush chose the first path. In 2008 Congress (controlled by the other party no less!) is offering the second path. In both cases, the executive becomes more powerful. To be sure, the new bill does impose new reporting and accountability requirements. But, as noted before, let's see if the current Administration-- and the next one-- tries to wriggle out of them. The larger point is that two parties are not in fact dividing over the issue of Executive power. Both parties seem to like more and more executive power just fine. They just have adopted different ways of achieving it. One can expect far more Congressional cooperation if a Democratic Congress is teamed with a Democratic President. The effective result may not be less Presidential power to run the National Surveillance State. It may be in fact be more.
I repeat. If you are worried about the future of civil liberties in the emerging National Surveillance State, you should not try to console yourself with the fact that the next President will be a Democrat and not George W. Bush. It's worth remembering that the last Democratic President we had, Bill Clinton, was not a great supporter of civil liberties. (I was therefore amused to see that his wife, Hillary Clinton decided at the last minute to vote against the bill. Good for her, but I have difficulty believing that the choice was a purely principled one). The mere fact that the next President will be a Democrat-- even a liberal Democrat-- is no guarantee that he will work hard to protect civil liberties in the emerging National Surveillance State. It is not enough to say that Obama has taught constitutional law before he became a United States Senator; so did Bill Clinton before he ran for governor of Arkansas.
Democrats (and Republicans) who care about civil liberties should put as much pressure as they can on the next President-- especially if he is a liberal Democrat-- to make sure that he truly respects civil liberties, and that he builds adequate protections into the emerging National Surveillance State. Making a campaign commitment to amend the worst features of the new surveillance bill in the next Administration would be a good start.
linkThe fact that this bill will now be signed into law makes it even more critical that the next President is a Democrat, regardless of which course (as outlined above) he chooses.
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