Saturday, July 15, 2006

What is Arlen Specter Thinking?

One of the first posts on this blog was a direct appeal to Arlen Specter to stick up for Congressional Power in the face of lawbreaking and unconstitutional assertions of total Executive authority.

I got a nice form letter back from him after mailing off my thoughts, but we now see that despite his occasional murmorings about reining in the President's illegal programs and dangerous theories, Specter decided instead to give up everything, in a so-called "compromise."

Compromising nothing, the President instead would get everything, as explained helpfully by Prof. Jack Balkin:
In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of-- a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President's constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.
Prof. Marty Lederman terms it the "Specter Monstrosity." Prof. Orin Kerr has further analysis.

Even the Washington Post (eventually, after its news division got the story exactly wrong) realized this:
SENATE JUDICIARY Committee Chairman Arlen Specter (R-Pa.) has cast his agreement with the White House on legislation concerning the National Security Agency's warrantless surveillance as a compromise -- one in which President Bush accepts judicial review of the program. It isn't a compromise, except quite dramatically on the senator's part. Mr. Specter's bill began as a flawed but well-intentioned effort to get the program in front of the courts, but it has been turned into a green light for domestic spying. It must not pass.

. . .

This bill is not a compromise but a full-fledged capitulation on the part of the legislative branch to executive claims of power. Mr. Specter has not been briefed on the NSA's program. Yet he's proposing revolutionary changes to the very fiber of the law of domestic surveillance -- changes not advocated by key legislators who have detailed knowledge of the program. This week a remarkable congressional debate began on how terrorists should face trial, with Congress finally asserting its role in reining in overbroad assertions of presidential power. What a tragedy it would be if at the same time, it accede to those powers on the fundamental rights of Americans.
Georgia10 explains how Specter completely caved:
To the reporters who tout this as a "compromise" measure, please direct me to the exact part of the bill that reflects any sort of concession by the White House. Let's recap, shall we?
  • Telecom executives won't be forced to testify before Congress.
  • The President is still free to use one of his infamous signing statements to avoid complying with the law. Indeed, the bill explicitly states that it "does not unconstitutionally retract any constitutional authority the president has" to collect information from foreign nations and their agents.
  • As far as I can tell, the bill doesn't mandate that the program go to the FISA court for review. According to the New York Times, "The White House insisted that the language of Mr. Specter's proposal make it optional, rather than mandatory, for the administration to submit the program to the court because Mr. Bush was concerned about lessening "the institutional authority of his office," Mr. Specter said."
  • According to Specter, the FISA court wouldn't have to make its findings public. So it could find the program unconstitutional, but no one would know its decision to be able to enforce it.
  • Oh, and it gives the President the power to order anyone to spy on Americans without a court order:
The bill would amend section 109 of FISA, 50 USC § 1809, which imposes a criminal penalty of up to five years in jail and a $10,000 fine for wiretapping Americans without a court order. It would accomplish this by allowing wiretapping at the direction of the president outside of FISA, accepting the theory that the president has inherent constitutional authority to wiretap without judicial oversight. It would also amend the criminal code, 18 USC §§ 2711(2)(e) and (f), to make it legal towiretap outside of FISA at the direction of the president. link
But all of this is the side salad to the main entry--killing off the current lawsuits challenging the program. There are dozens of them initiated throughout the nation (the latest estimate I've come across is about 100. Seems high, though not entirely impossible). Each of those represents a chance that the program would be declared unconstitutional.

Specter's bill gives the government the power to halt all of these lawsuits and drag them into the dark shadows of the FISA court. It allows Gonzales--through a mere affidavit that the public proceedings may harm national security--to force a transfer to the super-secretive FISA court. Adjudication before the FISA court means that outside attorneys would not be able to present their client's cases to the court. It means limited access to evidence. It means secret decisions. And if that isn't repulsive enough, the FISA court would be allowed to dismiss a challenge to the spying program "for any reason."

The Specter "Compromise" bill should be vehemently opposed. Rep. Jane Harman sounds like she gets it.
    (The Editors are grateful for "small government conservatives" and their love for Calvinball.)

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