Senate Votes Against Reauthorizing Patriot Act

Thank God for courageous, responsible legislators, Republicans and Democrats.

Supporters of the broad anti-terrorism law known as the USA Patriot Act suffered a stinging defeat in the Senate today, falling well short of the 60 votes needed to bring the act to a final vote and leaving it in limbo for the moment.

After an emotional debate about the balance between national security and personal liberties and the very character of the republic, the Senate voted, 52 to 47, to end debate and take a yes-or-no vote on the law itself.

But since 60 votes are required under Senate rules to end debate, the Patriot Act was left hanging. The House of Representatives voted, 251 to 174, last week in favor of the latest version of the bill, which had been worked out in negotiations between the two chambers.

The Bushies are having fits over this, but they have no one to blame but themselves. No one is willing to trust anymore that the government will not abuse the vast powers given to them by the Patriot Act -- because they already have.

The report in the New York Times today that Pres. Bush signed a secret order authorizing the National Security Agency to conduct surveillance operations on Americans and others inside the United States helped to convince many in the Senate that this administration cannot be trusted to respect or protect our civil liberties.

Several senators held up copies of The New York Times, which reported today that President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity, but without court-approved warrants ordinarily required for such surveillance.

Senator Charles E. Schumer, Democrat of New York, called the disclosure "shocking" and said it had impelled him to vote "no" today.

Senator Edward M. Kennedy, Democrat of Massachusetts, said the disclosure showed that "this administration feels it's above the law," and that "we cannot protect our borders if we do not protect our ideals."

And Senator Russell D. Feingold. Democrat of Wisconsin and the only senator to vote against the Patriot Act four years ago, said the disclosure of domestic spying "should send a chill down the spine of every senator and every American."

Shakespeare's Sister and hilzoy from Obsidian Wings, in separate guest posts at Washington Monthly, both point out that spying on U.S. citizens without a court order is illegal.

Hilzoy thinks it's time to seriously consider impeachment proceedings.

This is against the law. I have put references to the relevant statute below the fold; the brief version is: the law forbids warrantless surveillance of US citizens, and it provides procedures to be followed in emergencies that do not leave enough time for federal agents to get a warrant. If the NY Times report is correct, the government did not follow these procedures. It therefore acted illegally.

Bush's order is arguably unconstitutional as well: it seems to violate the fourth amendment, and it certainly violates the requirement (Article II, sec. 3) that the President "shall take Care that the Laws be faithfully executed."

I am normally extremely wary of talking about impeachment. I think that impeachment is a trauma for the country, and that it should only be considered in extreme cases. Moreover, I think that the fact that Clinton was impeached raises the bar as far as impeaching Bush: two traumas in a row is really not good for the country, and even though my reluctance to go through a second impeachment benefits the very Republicans who needlessly inflicted the first on us, I don't care. It's bad for the country, and that matters most.

But I have a high bar, not a nonexistent one. And for a President to order violations of the law meets my criteria for impeachment. This is exactly what got Nixon in trouble: he ordered his subordinates to obstruct justice. To the extent that the two cases differ, the differences make what Bush did worse: after all, it's not as though warrants are hard to get, or the law makes no provision for emergencies. Bush could have followed the law had he wanted to. He chose to set it aside.

And this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached.

At least one national security expert agrees that, if the president did sign this secret order, he is guilty of serious wrongdoing:

Kate Martin, director of the Center for National Security Studies, said the secret order may amount to the president authorizing criminal activity.

The law governing clandestine surveillance in the United States, the Foreign Intelligence Surveillance Act, prohibits conducting electronic surveillance not authorized by statute. A government agent can try to avoid prosecution if he can show he was "engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction," according to the law.

"This is as shocking a revelation as we have ever seen from the Bush administration," said Martin, who has been sharply critical of the administration's surveillance and detention policies. "It is, I believe, the first time a president has authorized government agencies to violate a specific criminal prohibition and eavesdrop on Americans."

Congressional leaders have promised an inquiry into this violation of U.S. law by the Bush administration. With masterful understatement, Sen. Arlen Specter called the eavesdropping "inappropriate"; Sen. John McCain called it "troubling." MSNBC, with masterful overstatement, called McCain's reaction "harsh."

Bush himself, in an interview with Jim Lehrer to be aired tonight, responded to the Times report with invocations of the notorious "lurking enemy":

"...we do not discuss ongoing intelligence operations to protect the country. And the reason why is that there's an enemy that lurks, that would like to know exactly what we're trying to do to stop them.

"I will make this point," he continued. "That whatever I do to protect the American people -- and I have an obligation to do so -- that we will uphold the law, and decisions made are made understanding we have an obligation to protect the civil liberties of the American people."

Pathetic. And shameless. The president of the United States is saying he will uphold the law while defending a violation of federal law.

Meanwhile, in a separate article, MSNBC reports that Iraqi forces detained Abu Musab al-Zarqawi following the American offensive against Fallujah in November, 2004; and after asking him some questions, they let him go, because they "didn't realize who he was."