Democrats speaking today in favor of the FISA bill keep coming back to the "exclusivity" provisions in the bill:
Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18, United States Code, and this Act shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.These speakers are adamant that these provisions mean no president will ever be able to ignore the established surveillance laws ever again.
Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this Act or chapters 119, 121, or 206 of title 18, United Staes Code, shall constitute an additional exclusive means for the purpose of subsection (a).
So here's the question: What if someone does, anyway?
Here's the "exclusivity" provision of the old FISA law, still on the books when George W. Bush instituted his illegal programs:
[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.The "administration's" lawyers -- people like John Yoo -- advised Bush that the president had the "inherent power" to ignore the FISA provisions in the name of "national security." So he did it. Despite the existence of the exclusivity provisions.
Now, we've got a new exclusivity provision that also purports to prevent the president from simply ignoring the law.
But is there really a way to write a law in a way that prevents someone from ignoring it? Of course not. If you ignore the law, you ignore the provisions preventing you from ignoring it. That, it turns out, is actually what "ignoring" means.
Now, there are ways to write laws so that there are penalties outlined for ignoring them. But this bill doesn't do that. And I'm sure that's just fine, since really no one could foresee a president ignoring surveillance laws, right?
No, there's no way to prevent a president who's willing to believe he's got the "inherent power" to ignore the law from doing so. There's only the opportunity to enforce that law against such a president. The "checks and balances" we all learned about in school.
Unfortunately, we all know that particular check has bounced for insufficient
If there's one thing the 110th Congress has taught us, it's that this bill can only be the "exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted" to the extent that the Congress itself insists it is.
Insists. Using all their powers. Every time. All the time. Forever.
How much you wanna bet?
UPDATE: And Hoyer closes his speech with the same ridiculous argument. What a capper.
UPDATE 2: The House Majority opposes the bill by a margin of 105-128. The bill passes.
UPDATE 3: And the great payoff for this week's "bipartisan compromises?" Republican one minute speeches blaming Democrats for high gas prices.