I'm realizing that watching these guys squeeze and contort their way out of traps of logic brings out the same sick, strange mixture of feelings one gets watching an average episode of "Jackass." One part bemused awe, one part focused revulsion and a big part plain old embarrassment. (Whether it's embarrassment for the performers or ourselves I think is debatable.) We've all become perpetual rubber-neckers driving slowly by a horrible accident and trying not to look.
When this story broke two months ago it seemed once again like one of those "gotcha" moments in politics where a political party makes a misstep so enormous it falls well outside of the normal conventions of traditional political skullduggery. The language of the 1978 FISA law, not to mention the Constitution of the United States, seemed pretty unambiguous in it's language. In order for our government to intrude on the privacy of it's citizens it simply needs to acquire a warrant. The Administration refused to get such a warrant before initiating eavesdropping. They've clearly violated both the FISA statute and the 4th Amendment to the Constitution. Caught between an Administration who boasted loudly and publicly that they'd actually engaged in the spying and the clear letter of the law, the Administration's supporters in Congress were faced with Damocles Sword.
But then Roberts started his Contortionist act. This would be the biggest challenge of his career. (Admititedly made easier by his naturally spineless condition .) Could he worm his way between the letters of the 4th Amendment, up through the clauses in the FISA statute and still loop himself back around towards absolving the Administration of any wrongdoing? Was there ever really any doubt?
Thursday, they voted to forestall hearings in favor of developing White House-backed legislation establishing clearer rules for the controversial program. Sen. Mike DeWine, R-Ohio, is drafting legislation that would exempt the NSA program from the 1978 Foreign Intelligence Surveillance Act but limit eavesdropping to international calls.
Get that? They're going to okay Bush's program retroactively. I stand in awe and deliver a hearty golf clap towards the sheer enormity of this bitch-slap to objective logic and the rule of law.
Of course they can't ACTUALLY change the FISA law after-the-fact. There's this tiny little clause in the Constitution that reads "No Bill of Attainder or ex post facto Law shall be passed."
What they can do, what they WILL do, is change the law then say something along the lines of "We meant to do that but just never got around to it, therefore it's our fault Bush had to break the law. Sorry about that." It's simply a loophole that Congress forgot to consider when they drafted the FISA law 30 years ago.
As for the violation of the Constitution, ever heard of the term "Originalism?" Conservatives, who take an "original" approach to interpreting the Constitution, are obviously in the best position to inform us of what the Founders intended to include in the text but mistakenly let slip through the cracks. Perhaps it was an edit that just didn't make it to the publisher. I have not doubt that Justices Scalia, Thomas and Alito will reaffirm this position shortly.