Super-Duper Exclusive!

Slate's blog on legal issues.
June 20 2008 10:35 AM

Super-Duper Exclusive!

Can the House really believe the new FISA bill means that it has reined the president in? The New York Times reports, "yes." And here's why:

Perhaps the most important concession that Democratic leaders claimed was an affirmation that the intelligence restrictions were the "exclusive" means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts "that the law is the exclusive authority and not the whim of the president of the United States," Ms. Pelosi said.

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That was the New York Times , by the way. Not the Onion .

As everyone knows, the last version of FISA said it also was the exclusive means. In fact, it was that language that led so many to think the president's actions were plainly in violation of law, no matter what Rube Goldberg-esque theories of statutory interpretation the administration offered. So, how does immunizing that prior lawbreaking enable anyone to take seriously the claim that this new legislation is now super-duper exclusive?

Someone should ask the president whether he is now conceding that he has no constitutional authority to act in violation of this statute. And someone should ask whether he will commit to not issuing a signing statement asserting a reserved power to do what this exclusive legislation forbids. But, of course, even if he said "yes' to both questions, it would not matter. Presidents can no more bind themselves than they can bind their successors. What actually binds them is a combination of informal and formal checks, such as the specter of intensive congressional oversight, legal liability, or judicial review-checks that this bill diminishes. 

Looking back at this whole affair, if this legislation passes, would you think this new statute is really super-duper exclusive, in fact, or more like kinda-sorta exclusive?

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