New Congress Turns Bush's *Lawlessness into Lawfullness* with their Actions--Glen Greenwald

[KoKo]

This underscores what I think is a critical point that cannot be emphasized enough. In late 2005 and early 2006, when I and others first began writing about the assault on our Constitution from this administration in the wake of the NSA scandal and the Jose Padilla travesty, the overarching issue was lawlessness. The administration's most radical and disturbing "terrorism" policies were undertaken without any legal authorization whatsoever, and frequently, in direct violation of the law.

But over the past twelve months, that has become less and less true. On every front of executive power -- from surveillance to detention to interrogation -- what was previously covert, lawless radicalism has now become the legally authorized and Congressionally endorsed policy of the United States, on a bipartisan basis.

On a strictly quantitative level, it is true that Republicans have been more supportive than Democrats of these policies -- in the sense that more Democrats cast votes against them -- but Democrats have done nothing meaningful to stop any of it, even when they could. Indeed, paradoxically, Democrats have actively enabled and endorsed this extremism more and more as they have gained more power. As a result, what were the illegal policies of the Bush administration have become lawful as the result of a Congress which does nothing when executive lawbreaking is revealed except enact legislation to legalize the behavior.

If the Democratic Congress ends up not only renewing and making permanent the vast new warrantless surveillance powers granted the President under the new FISA, but also provides retroactive immunity to telecom companies which violated the law, then illegal warrantless eavesdropping will be every bit as much a by-product of the Democratic Congress as it is one of the defining abuses of the lawless Bush administration.

Last October -- when Republicans still controlled the Congress -- the Bush White House tried but failed to force Congress to legalize warrantless eavesdropping and provide this immunity. Karl Rove made the failure to legalize warrantless eavesdropping a central feature of his midterm election campaign, and Republicans got crushed.
Thus, the very idea that the Bush White House would be able to force enactment of FISA legislation once Democrats controlled the Congress would have seemed unfathomable, at least to many people. But after watching the Democrats meekly sit by and allow abolition of habeas corpus and then, when in control of Congress, grant the President vast new surveillance powers without receiving anything in exchange, it is inescapably clear that there are no limits on the willingness of Congressional Democrats to enable the President's worst excesses. If this NYT story is accurate and they really do intend to provide this retroactive immunity, their joint responsibility for most of the excesses of the Bush administration will be virtually complete.

http://www.salon.com/opinion/greenwald/2007/09/19/democrats_fisa/index.html

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NYT's Article Signaling Dems Might not Oppose Tougher FISA:

Mr. McConnell argued on Tuesday that the expanded surveillance powers granted under the temporary measure should be made permanent.

He also pushed for a provision that would grant legal immunity to the telecommunications companies that secretly cooperated with the N.S.A. on the warrantless program. Those companies, now facing lawsuits, have never been officially identified.

Democratic Congressional aides say they believe that a deal is likely to provide protection for the companies.

Democratic leaders have now largely accepted the idea of warrantless surveillance of international calls as long as the target is foreign, but they have been arguing that a special court should play a stronger role in reviewing the surveillance after it has been conducted, to make certain that Americans are not being caught up in the program.

Representative John Conyers Jr., the Michigan Democrat who is chairman of the House Judiciary Committee, reflected the lingering anger among many liberal Democrats about the way the temporary measure was handled in August.

“The right to privacy is too important to be sacrificed in a last- minute rush before a Congressional recess, which is what happened,” he said. “The need for national consensus in our efforts to track down terrorists and foil their plots is too important to ignore the constructive concerns of the Congress and the courts.”

http://www.nytimes.com/2007/09/19/washington/19nsa.html?_r=1&adxnnl=1&oref=slogin&adxnnlx=1190232913-J8Eh6Ah8TyKdik5tr/ARow