Re-outlawing the illegal, or, how "moderate" Republicans create phony solutions to real problems (updated)

I've been grumping for a few weeks about a political scam seems to be emerging as a favorite of Republican "moderates". The idea is this: Bush breaks the law; Congress passes a new law to re-outlaw the already-illegal activity; politicians and pundits pretend that something has actually been done. We saw this with Maverick McCain's anti-torture legislation, which Bush declared in his "signing statement" that he would disregard if he saw fit. And when you looked closely at the legislation, it even included the "Graham-Levin" amendment that effectively made it impossible for inmates at Guantánamo to seek relief from torture under either the new or old laws.

Now "moderate" Arlen Specter is getting into the act. This time the subject is the illegal NSA spying that doesn't comply with the court review mandated in the FISA legislation. Specter has proposed new legislation that would require the illegal program to be reviewed under the FISA court. Which raises the same question as Maverick McCain's anti-torture law: if Bush is breaking the old law, why would anyone expect him to obey the new law without some additional enforcement actions taken, e.g., Congressional investigations, prosecutions?

Glenn Greenwald has the same question:

It is, of course, so disorientingly bizarre to hear about a proposed law requiring FISA warrants for eavesdropping because we already have a law in place which does exactly that. It's called FISA. That's the law the Administration has been deliberately breaking because they think they don't have to comply with it and that Congress has no power to make them. Reading this article about Specter's proposed legislation is somewhat like hearing that a life-long, chronic bank-robber got arrested for robbing a bank over the weekend and, in response, a Senator introduces legislation to make it a crime to rob banks.(Specter proposes a new law - something called "FISA" Unclaimed Territory blog 02/26/06)

And Greenwald discovered on a closer reading that the proposed legislation would actually make the FISA court approval effectively a rubber-stamp.


This really is the approach of an authoritarian regime. Allow the Executive to break the law. Set up a court review in which the court has no actual power to review. Have a Potemkin legislative process in which laws are passed that just ratify whatever the Executive is doing and the courts can't enforce them.

Greenwald restates his complaint in several literate ways. Like this one:

Specter's new law would be treated by the Administration as being just as irrelevant and optional as it has treated FISA. Enacting a new law which the Administration is claiming it has the right to ignore is an exercise in futility and idiocy. The Administration has seized the power to break the law. Until that problem is resolved, Specter and his distinguished colleagues and friends in the Senate can pass all of the laws they want, but those laws will continue to be viewed by the Administration as optional suggestions which can be followed if the Administration wants to, rather than actual laws that compel adherence.

"Enacting a new law which the Administration is claiming it has the right to ignore is an exercise in futility and idiocy": a good semmary of this "moderate" scam.

But he's willing to be a bit more generous to the Republican "moderates" than I am at this point. He suggests that maybe they really don't understand what they're doing and how drastic Bush's "unitary executive" approach really is. He writes:

I actually think that the Administration's theories vesting George Bush with law-breaking powers are so radical and dangerous that people like Specter can't get themselves to actually accept that the Administration has really embraced these theories and is living them. Notwithstanding the fact that the Administration has expressly advocated these positions in numerous instances in many different contexts over several years now, it's as though people in Congress - and the media - think they're not really serious about believing them.

Are Maverick McCain and Moderate Specter really that clueless? I find that very hard to believe.

[Update 02/28/06: In a subsequent post, Glenn Greenwald somewhat modifies his description of the Specter bill upon closer examination. He doesn't think the bill as drafted makes the court simply a rubber-stamp. On the other hand, he thinks the bill would exempt "data mining" activities from the review requirements.

His new observations don't change the basic points I was trying to make about this process. In fact, he expands on some of the ways in which its a slippery show. At bottom, passing redundant laws without dealing effectively with the fact that the administration is breaking the original laws is just a PR scam. An "exercise in futility and idiocy", as he put it in the earlier post.]

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