What Digby Said

That woman sure has a knack for hitting the nail right squarely on the head.

UPDATE: There's some excellent writing on this subject from all the usual suspects. To wit:

Our system of government is built on the separation of powers: Congress passes laws, the Executive implements those laws, the Courts interpret them, and all of us, including the President, obey them. This system is currently under threat. Our President and his advisors believe three things which are wrong individually, but disastrous when combined. These are:

(1) The President can do whatever he wants during wartime, whether or not it violates the laws.

(2) It is always wartime, and the battlefield is everywhere, both at home and abroad.

(3) The President has the right to keep what he is doing completely secret. No one -- not citizens, not Congress, not anyone -- has the right to force him to reveal what he and others in the Executive are doing.

As I said, each of these is wrong individually, but the combination of all three is absolutely toxic. And the secrecy is crucial: if no one knows what the Executive is doing, no one can challenge it.

The FISA controversy puts all three principles together. The President claims that the War Powers he discerns somewhere in Article II of the Constitution give him the right to violate the FISA law, and to enlist the help of the telecoms. The Democrats offered a long time ago both to grant the basic fixes in the FISA law that the President wants, and also to allow the government to substitute for the telecoms in the various lawsuits against them. The latter amendment would have allowed the lawsuits to proceed without the telecoms being in jeopardy. It failed, with only one Republican voting in favor.

If the FISA "compromise" passes, it will mean that a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law. Given a President who claims to believe, as Bush does, that whatever he wants to do is legal so long as it is an exercise of his War Powers, this is a recipe for disaster. Moreover, these lawsuits are the only way in which anyone can get redress, since the courts have ruled (pdf) that no one has standing to sue the government unless she can show that her communications have been intercepted. It's also the only way in which citizens can discover what this program involves, so long as Congress refuses to do its job -- not that Congressional investigations would necessarily have helped, since the administration has shown very little willingness to share information about this program with Congress.

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George W. Bush and his administration have done everything they can to undermine the separation of powers. This bill would retroactively say that that's OK, and would in addition prevent us from suing corporations that went along with the President's request to break the law. That is a request he has no right to make, and legal liability is the best way of ensuring that he does cannot do in practice what our Constitution forbids him.

It's our Constitution. It's up to us to defend it.