Republicans fight Bush on terror tactics Updated Second Update

I’m trying to wrap my brain around this CNN article I’ve just read which, if even a shred of it is true, means the GOP caucus in Congress is led by fools who are ready to gut the president’s wartime powers and let terrorists attack us again before doing anything about it.

Here’s the scene. SCOTUS in the Hamdan decision stripped part of President Bush’s wartime powers to deal with captured enemy combatants and put much of that power in Congress’ hands. He can’t try them via military tribunals, as captured enemy operatives were tried in World War II and previous conflicts. One could argue that that’s because there has been no official declaration of war, but one could also argue that given the nature of the threat the executive might need even more power than previous wartime presidents. Nevertheless, after Hamdan Bush has to get Congressional approval to do anything other than just hold enemy combatants until the war ends, which could be decades from now. Bush responds to Hamdan by handing the issue to Congress as SCOTUS instructed, which is nominally controlled by his fellow Republicans, in a way that makes the issue an obvious election-year gimme as well as a good policy. The Republicans in both houses can approve military tribunals, deal with the wiretapping issues and work out the specifics of interrogation techniques all while putting the Democrats on the spot about their desires to give terrorists full constitutional rights, no surveillance of suspected terrorists and no tough tactics at all used to find out what captured terrorists know. It’s a no-brainer. But apparently several GOPers in the House and Senate approach it with no brain.

According to CNN, it isn’t working out. Because several Republicans in both Houses are raking Bush over the coals on all three issues. Opposing Bush in and of itself isn’t much of an issue as far as I’m concerned–the man is president after all, not God. And in some areas even he is still too soft on the enemy for my tastes. But it’s the angles of attack these Republicans are using that blow the mind. What are they thinking?

President Bush dispatched the vice president and top aides to the Capitol on Tuesday to try to break an election-season deadlock with Republicans over the surveillance and prosecution of terrorism suspects.

Bush’s surveillance plan faces a difficult fight in Congress, especially in the House, where GOP leaders favor a different approach.

That measure, sponsored by Rep. Heather Wilson, R-New Mexico, and endorsed by the GOP chairmen of the Judiciary and Intelligence committees, would require the administration to wait until a terrorist attack to open an electronic surveillance program (emphasis added).

Wait until an attack to start surveillance? What was 9-11? I’ll grant that Echelon, the Clinton-era data-mining operation that Democrats pretend never happened was established well before 9-11, but Bush’s program wasn’t. So he did wait until after an attack to open up the program. He kept it going long past 60 days, but Republicans and Democrats in Congress who were briefed on it had no problem with it, at least until the NY Times exposed it and the nutroots went, well, nuts about it.

What are the Republicans doing here? If they’re talking about more localized and specific surveillance, isn’t waiting until after an attack to spy on the terrorists too late? For one thing, the attack has already happened. For another, it’s pretty likely that the terrorists will have died in the attack. So what’s left to spy on and what’s the point of spying? If they’re playing politics, it’s foolish and could split the base between hawks and RINOs. It makes no sense.

Unless FISA grants rolling authorizations on a scale similar to the surveillance that’s been going on until now, Wilson’s bill will effectively deafen us to terrorist chatter than can hint of attacks. FISA increasing the number and scope of authorizations is always possible and the bill does try to streamline that process, but it seems unlikely to me. You insert the courts into warfighting and you get decisions like Hamdan that accumulate more power for the courts at the expense of the executive and, ultimately, national security.

Well, I thought CNN might be badly mischaracterizing Wilson’s legislation. It is an AP report we’re dealing with here, so maybe one of Saddam’s hangover moles wrote up the copy to screw up Republican unity. So I started looking around for other reports. The Washington Post’s take on the Wilson bill is far less incendiary than CNN’s.

Other GOP proposals — including bills proposed by Wilson and Sen. Mike DeWine (Ohio) — are opposed by Democrats and civil liberties groups because they formally authorize the NSA program. But the scope of the Wilson bill, for example, is more limited than Specter’s, and requires the executive branch to brief all members of the House and Senate intelligence committees.

The WSJ says the Wilson bill would give the administration 60 days after an attack to open up surveillance. So it agrees with CNN: No surveillance until after an attack without FISA’s say-so, which on the whole means there will be less surveillance.

The lovely and sharp Mary Katharine Ham helped me find out a bit more about the bill, straight from Rep. Wilson herself. Here’s what Wilson has to say about her own bill, H.R. 5825.

Wilson's surveillance bill

This bill as it reads above, in a description written by its own author, is awful. This bill ties the administration’s hands until after a terrorist attack, and then he can only spy for a short time based on some pretty specific information before he has to roll the dice with FISA (unless FISA has granted large-scale rolling authorizations prior to the attack, which would render Wilson’s 60 days moot).

Section 8 contains at least one major problem too: You don’t always know which terrorist group has hit until you cast a wide net and listen to a lot of the usual suspects. Al Qaeda isn’t the only terrorist group on earth, and Hezbollah for one has all but promised to attack us at some point. Section 8 seems to rule netcasting out, even after an attack, so we might not find out who hit us unless the culprits claim responsibility (again, unless FISA has granted large scale rolling authorizations, again rendering Wilson’s bill moot). Al Qaeda doesn’t usually claim responsibility until long after the fact, if at all. This bill as described above by Rep. Wilson has to die.

Then again, apparently even Wilson’s bill is too much for the Democrats to stomach. That makes me wonder just how little they want the administration to actually be able to do to stop terrorist attacks on US soil.

There’s even more to hold against Republicans, though. Senators Warner, McCain and Graham appear to be setting up the best intelligence-gathering program al Qaeda ever had. Check this out.

On the effort to craft a new way for military trials of terror detainees, Senate Majority Leader Bill Frist, R-Tennessee, said he supports the administration’s efforts and could call for a vote on it — or a competing bill favored by some GOP senators — at any time.

Graham said he expects the final legislation will allow a defendant to access all evidence used against them — a provision staunchly opposed by the White House and House and Senate leadership because it could reveal classified information. Graham said steps can be taken to prevent unnecessary exposure of protected information, but ultimately a fair trial must allow defendants the ability to confront evidence used against them.

“I think we’ve made a pretty good case that giving something to a jury to convict a defendant (with hidden evidence) is a nonstarter,” Graham added.

Ok. Senator Graham, have you ever heard of Lynne Stewart? If not, you ought to review her case. She’s the National Lawyers Guild (read: Communist front) lawyer convicted of using her position as a defense attorney to help accused (and later convicted) terrorists communicate. Now, imagine another Stewart running the defense of Khalid Sheik Mohammed. He is allowed to see all of the information being used against him at trial. He finds out many useful things about our intelligence sources and methods, as does the attorney, who at some point dribbles that information to KSM’s terrorist contacts. The information spreads all across al Qaeda and to every other terrorist state and organization on the planet. This has the potential to do tremendous damage to our intel-gathering capabilities. And for what purpose–to give terrorists who aren’t American citizens the same rights non-terrorists who are American citizens have? Then what’s the point of citizenship, when you get right down to it?

Graham says there will be ways to keep the most sensitive information away from the accused, but that’s an optimistic spin job. You never know what the terrorist will find most useful. But he will. If he knows a piece of information known only to himself and say two other terrorists, for instance, when you drop that info on him you’ve just told him who within his organization may be compromised. And you didn’t even know you’d told him that. Once he finds a way to get word back to his fellow jihadis, there goes the intelligence source.

And then there’s the same GOP cabal on interrogations. We found out this week that the gobsmackingly vile techniques used on the likes of Abu Zubaydah amounted to cold floors, sleep deprivation and the Red Hot Chili Peppers. I’ll stifle my boo-frickin-hoo, but apparently even that is too much for McCain et all.

Warner, Graham and McCain are pushing more precise definitions, as well as a ban on coerced testimony, to ensure tough interrogations do not lead to abuse or violate the Geneva Conventions.

I’m all for defining actual torture and ruling it out, but these senators seem intent on putting on the kid gloves when dealing with the worst of the worst.

You put this all together, and if these Republicans get their way we won’t spy on suspected terrorists until they strike if we ever spy on them unless FISA says so, if we happen to catch them after they kill Americans we’ll tell them pretty much everything we know about them and how we know it, and we won’t be able to get a thing from them unless they just feel like volunteering it because these Republicans will have defined torture down to include things the average frat boy got past in rush week. And all of this is coming from the party that’s supposed to be strong on national defense. I don’t even want to know what the Democrats are cooking up.

More: The debate right now centers on whether or not HR 5825 would force the administration to submit surveillance to FISA before an attack or not. Quoting a more extended passage from the CNN article that started this post:

Bush’s surveillance plan faces a difficult fight in Congress, especially in the House, where GOP leaders favor a different approach.

That measure, sponsored by Rep. Heather Wilson, R-New Mexico, and endorsed by the GOP chairmen of the Judiciary and Intelligence committees, would require the administration to wait until a terrorist attack to open an electronic surveillance program.

The White House has conditionally endorsed one bill, by Sen. Arlen Specter, R-Pennsylvania, as long as it’s passed unchanged — not a sure thing given amendments that await it on the floor as soon as next week.

Specter’s bill would submit the existing electronic surveillance program to the Foreign Intelligence Surveillance Act court for a one-time constitutional review and expand the time for emergency warrants from three to seven days.

Bush’s surveillance plan presently does not go through FISA. Specter’s plan would submit it to a one-time shot for Con review with FISA (where FISA could shoot it down entirely, thus killing it until Congress and the administration come up with an alternative), and that’s the plan that the White House “conditionally” endorses. Which means they don’t particularly like it but it seems to be the closest thing to a program they can live with. HR 5825, the one the WH opposes, appears to me to submit surveillance to FISA prior to an attack and gives the adminstration a 60-day window to monitor w/o FISA approval after an attack. I base that read on the context of the debate–Congress’ assumption is that he has to go through FISA, and 5825 takes that assumption into account, only allowing warrantless surveillance after an attack, and circumscribing that allowance narrowly in terms of who can be monitored while extending the actual warrantless monitoring period.

Second Update: I don’t actually have anything new to say, but that is the update. I put in three calls to Wilson’s office yesterday, including directly to her press officer’s cell phone, and got bupkis for the effort. I’m going to call them again tomorrow, but I suspect that once I identify myself as having written this post they’re hesitant to answer. Though I got too busy yesterday shooting and then editing Vent to continue updating, they have had my phone number for more than 24 hours now and have not even attempted to call back.

Here’s what we need to know: Does Wilson’s legislation require the administration to route its surveillance through FISA prior to a terrorist attack? If HR 5825 doesn’t, is there some other piece of legislation out there that does, or is Congress reading FISA so that the requirement is understood as already being in force? That is how I see things, since that is the direction the entire debate in Congress has gone. But I could be wrong.

I think it’s telling that Wilson’s office hasn’t offered any answers so far. I don’t want to make too much of that, but if I was mischaracterizing HR 5825 in a way that makes it look worse than it is, any sensible press officer would shoot it down asap. This story has already spread across about a dozen blogs I know of, so it’s getting out there. As I’ve said here and said to their receptionist on the phone, the last thing I want to do is mischaracterize this bill. I just want to understand both the bill and the thinking behind it, so I am quite reasonably asking the bill’s chief sponsor for comment. Is that too much to ask of those who represent us in Washington? I don’t think so.