Administration Expected To Push For Specter’s Sham ‘Compromise’ Legislation On NSA Program
Administration Expected To Push For Specter’s Sham ‘Compromise’ Legislation On NSA Program
In the wake of a federal district court ruling that the NSA domestic spying program is unconstitutional, the administration may now shift attention to compromise legislation offered by Sen. Arlen Specter (R-PA). CNN’s White House correspondent Ed Henry reports:
This [ruling], if anything, could really provide a spark for Republican Senator Arlen Specter, the Senate Judiciary Chairman, who has been critical of this program and has been trying to craft some sort of compromise legislation on the Hill — that could give the administration the cover it feels it needs to push this program forward while also trying to appease Democrats a bit in terms of the legality of the program and whether you need warrants.
The Specter bill is not a compromise, “but a full-fledged capitulation on the part of the legislative branch to executive claims of power.” Bush would receive a “blank check” to continue operating the program. Here are a few reasons why the Specter “compromise†is a sham:
1) Nothing in the Specter legislation requires the Attorney General to obtain court approval before engaging in electronic surveillance. The compromise makes optional what Bush is already required to do.
2) Section 801 of the Specter bill includes the following statement: “Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.” The provision would reserve the right for the president to do an end-run around any procedures that FISA offers as long as he claims inherent authority under the Constitution.
3) The Specter “compromise†scraps the individualized suspicion standard required under the Fourth Amendment, instead allowing the FISA court to authorize the entire NSA surveillance program. Thus, the Specter legislation would presumably allow U.S. persons to be spied upon simply because the spying program was at one time deemed constitutional.
The administration has the burden of demonstrating why it cannot comply with current law — the Foreign Intelligence Surveillance Act (FISA). And until it can do so, no sham “compromises†should be struck.
UPDATE: Some commenters have questioned whether the Specter legislation is relevant, given that the judge ruled the program unconstitutional. I argue the constitutional claims are based on the violation of FISA, and thus, Specter’s attempts to change FISA are still relevant.
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As Glenn Greenwald notes, the judge has ruled that the warrantless surveillance program is not just illegal (because of FISA) but unconstitutional. That means that Specter’s legislation cannot make it legal. It would require that the Constitution itself be changed.
August 17th, 2006 at 1:16 pmYea, let’s hope principled (are there many) Senators kill this one in committee.
August 17th, 2006 at 1:18 pmDidn’t Judge Diggs’ decision rule that the program violated the fourth amendment, rendering Specter’s legislation meaningless? Wouldn’t his law also violate the constitution?
August 17th, 2006 at 1:18 pm#1, Thank you. I was wondering about this. We need a constitutional amendment to change the 4th Amendment. Let’s see them try.
August 17th, 2006 at 1:23 pmBased on my reading of the decision, the judge’s constitutional rulings are based on the fact that the administration has ignored FISA.
For instance on the Fourth Amendment, the judge writes, “The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.”
On the First Amendment, the judge writes, “The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.”
Thus, if Congress were to change FISA, it would leave open the question of how much of this decision’s constitutional claims would stand. That’s why the Specter legislation is so dangerous — it undercuts these constitutional arguments.
August 17th, 2006 at 1:23 pmThis is the type of legislation that the fillibuster was designed for.
August 17th, 2006 at 1:27 pmSpecter has a JD from Yale, so he should be able to read the ruling. His compromise is unconstitutional, he knows it, and now he knows they aren’t going to be able to get away with it.
August 17th, 2006 at 1:31 pm#1 – As Glenn Greenwald notes, the judge has ruled that the warrantless surveillance program is not just illegal (because of FISA) but unconstitutional. That means that Specter’s legislation cannot make it legal. It would require that the Constitution itself be changed.
I sure hope you are right.
The Bush Cabal will try everything it can to wriggle out from under the US Constitution and from paying any penalty for their breaking US law.
August 17th, 2006 at 1:40 pmI have a different read on what the Judge said. Her ruling was rather sweeping in scope. The following is what CNN reports she said.
“(T)he program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III.”
August 17th, 2006 at 1:47 pmDo the words “Ex Post Facto” mean anything to you? Even if Sen. Spectre’s “naw, we don’t mind the president breaking the law” law gets passed, the administration is still guilty of 5 years of illegal behavior, meaning that heads can still roll. That leaves the GOP with a lot of restitution before they get back to 2 years of spying on us and then that power passes to the next president. And “do I want the next president spying on me when I’m a lobbyist” is something that everybody in the current misbegotten administration should probably be thinking of a bit more seriously now that they’re — sorry about this pun — “over the hill.”
August 17th, 2006 at 1:48 pmFaiz sez:
I argue the constitutional claims are based on FISA, and thus, Specter’s attempts to change FISA are still relevant.
Whether or not the warrantless wiretapping program is in violation of FISA or not (it is), the fact remains that it is still unconstitutional, not merely illegal.
From the Judge’s statement (emphasis mine):
FISA’s important here, but it’s really secondary to the violations of the Constitution.
August 17th, 2006 at 1:48 pmI’m with you #11, but it’s my reading at least that the reason the First and Fourth have been violated is because FISA has been violated. If they had followed FISA, they would have been on solid constitutional ground. So what happens when you change FISA, as Specter wants to do? It appears that the constitutional claims drop off
August 17th, 2006 at 1:54 pmThere’s lots of complicated jurisprudence from law school I’ve forgotten on when Congress can give meaning to the nature and scope of a Constitutional guarantee. But ultimately the Constitution should trump any statute if the Constitution is to mean anything. That’s the whole point of judicial review. Otherwise, why would you need that cumbersome constitutional amendment process?
So Specter can pass his silly FISA amendment and the whole thing could be unconstitutional, and we all live happily ever after.
August 17th, 2006 at 2:04 pmSo what happens when you change FISA, as Specter wants to do? It appears that the constitutional claims drop off
Comment by Faiz — August 17, 2006 @ 1:54 pm
Yeah but specter can’t (shouldn’t be able to) change FISA in a way that it violates the 4th amendment… right?
August 17th, 2006 at 2:05 pmIt may be politically tougher for Specter to follow through with his “compromise” now. But, then again, he talked tough on other issues only to back down later. We’ll have to see, but expect a massive right-wing assault on the judge in this case and the ACLU and the judiciary as a whole.
August 17th, 2006 at 2:09 pm“The provision would reserve the right for the president to do an end-run around any procedures that FISA offers as long as he claims inherent authority under the Constitution.”
Is that still the case in light of section IX of Taylor’s ruling? There she notes:
“The duties and powers of the Chief Executive are carefully listed, including the duty to be
Commander in Chief of the Army and Navy of the United States,49 and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”
…
“There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers†must derive from that Constitution. We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well.”
My point: doesn’t this ruling forbid the use of the inherent power’s claim as justification to violate FISA and the Constitution?
August 17th, 2006 at 2:09 pmYou cannot discuss this ruling without discussing Democratic negligence regarding the illegal spying.
Feingold is not enough if they’re just going to ignore him.
August 17th, 2006 at 2:09 pmNo. 17 is right. What Dem had the back bone to speak up loudly with Feingold? Not too many.
August 17th, 2006 at 2:12 pmSo basically, The court ruling against the NSA earlier is limited to what the administration is doing at this moment and the judge has ruled that they must stop what they are doing outside of FISA. Done. Now we have this Specter(d) appeasement that would change FISA and allow the administration to do what they are doing. So now if this passes would this have to go back to court to see if this is Constitutional? Probably. Just hope it goes to another impartial judge.
August 17th, 2006 at 2:15 pm#18 – Feingold is not enough if they’re just going to ignore him.
I’ve been thinking a little about what you’re saying. There’s a part of me that’s very disappointed with the majority of the Dems.
Either the they have to send out the lone target and know they’re going to get hit hard by KKKarl. Or, the Dems need to go out in force.
Feingold and Conyers are not enough.
August 17th, 2006 at 2:15 pm[...] …for a district court judge found today that the NSA spying program is unconstitutional. This will undoubtedly set up a Supreme Court showdown or, as Think Progress notes, start a renewed push for the Specter legislation to “compromise” on the program. [...]
August 17th, 2006 at 2:18 pm#14, the Fourth Amendment, according to the opinion, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” If Specter’s legislation were to pass, it would then return to a court to determine whether his bill has met that reasonable standard.
August 17th, 2006 at 2:19 pmI say we censure the president. and this time all dems stand together. It is now proven ILLEGAL and UNCONSTITUTIONAL
August 17th, 2006 at 2:30 pmall I can say is I’m glad this case made it to court and bush/cheney didn’t weren’t able to stop the litigation with their “this is too secret for the public” excuses.
let’s hope this is only the first of a long line of challenegs to this president’s illegal actions.
after all, the only reason bush/cheney aren’t foollowing FISA, is because they don’t even want secret judges to know what they are doing with their spy data. seems pretty clear to me they are probably spying on their opposition for political gain.
August 17th, 2006 at 2:30 pmFalz is wrong on about changes to FISA making this decision moot. FISA is a compromise between constitutional concerns and practical concerns. So FISA is, in a sense, the last line of constitutionality. Changing FISA to allow more searches would render FISA unconstitutional.
August 17th, 2006 at 2:38 pmBush, Cheney, Specter, FISA, SCOTUS, Constitution…
Reminds me of the old Chinese curse,
‘May you live in interesting times’.
I guess we are.
August 17th, 2006 at 2:51 pmPumping some sunshine up those red asses can’t hurt, though.
God, they hate sunshine. I’m surprised Cheney doesn’t hunt in the dark.
Wait! On second thought, I think he prefers darkness. At least then he
can claim he didn’t ’see’ the target.
It is not just FISA that the judge has found Bush violated, but also the 1st and 4th Amendments and his oath of office to faithfully execute the law.
As much as he may try, Specter cannot over-rule those Constitutional protections unless congress amends the Constitution and gets it ratified by 38 states.
Nah.gonna.happen.
August 17th, 2006 at 2:59 pm#25, FISA is the specific application of the Constitution’s general dictates. The Constitution requires broad measures of “reasonableness” and “probable cause.” If Specter could argue that his sham compromise fell within those dictates, his legislation would be deemed “constitutional.”
August 17th, 2006 at 3:03 pmIf Specter’s legislation permits the Distraction to spy on us without a warrant, then, in my opinion, the legislation itself is susceptible to constitutional challenge as a violation of the (what’s left of) the 4th Amendment. However, don’t hold your breath, given the make-up of the Supremes, they will likely find a rationalization to uphold Specter’s new legislation when it becomes law. Just look at how the 4th Amend. has been eroded by far less conservative courts than the presents Supremes.
August 17th, 2006 at 3:07 pmNot sure how “Admistration” became “Distraction” in my #29 post, but please not correction.
August 17th, 2006 at 3:14 pmI don’t want to discuss any compromise legislation – UNTIL – we discuss when the impeachment hearings begin for those who broke the law. Once we have the impeachment hearings and the verdict is rendered -THEN – and only -THEN – would I be willing to discuss new legislation
August 17th, 2006 at 4:06 pmI wonder if the bust in England, which was pushed forward ahead of time by the Bush administration, is connected to the knowledge that this decision was coming down. What better way to enforce the perception that wireless wiretaps are needed to prevent terrorist acts.
August 17th, 2006 at 4:29 pmI find Gonzales response interesting to read. What he is claiming is that the President under Article II has supreme power to defend the nation in the manner that he see fit. In other words Article II overrides “peacetime” protections under the 1st and 4th Amendments to the US constitution.
The other thing of note in the Judges ruling is that she says the Predident is limited to proposing legislation and either signing or vetoing the legislation that passes. After the the role of the President is to enforce the laws enacted by Congress. That is a stinging blow to the use of signing statement and other Presidential pronouncements regarding the manner in which the law is enforced.
This still has to go through the appeal process but this ruling does not stray far from the Hamdan ruling so the full court could well uphold this on a 5-4 vote.
August 17th, 2006 at 4:36 pmThe good news is that whatever Spector and the fascists pass in this session, will be “un-passed” after November. And the end result will be prosecution anyway.
August 17th, 2006 at 5:43 pm.
WHY IS NO MEDIA OUTLET REPORTING THIS REVELATION?
F I S A
W O R K S
B U S H
V I O L A T E D
T H E
L A W
N E E D L E S S L Y
O’Reilly Reveals Truth About FISA Courts in interview with Chertoff
Homeland Security Sec’y Michael Chertoff on Foiled Terror Plot
Friday, August 11, 2006
FOX NEWS INTERVIEW
EXCERPT:
O’REILLY: OK. Last question for you. The fact that the NSA was able to intercept some of these phone calls that were made in the United States to Al Qaeda in Britain by using the very controversial — although I understand warrants were obtained for this by the FISA court. In your opinion, does that mean that the Bush administration is justified now in its original policy? Is this a big win politically for you guys?
CHERTOFF: Well, Bill, of course I’m not going to confirm particular techniques were used, but I do think this.
O’REILLY: You won’t deny, though.
CHERTOFF: Obviously I’m not going to discuss classified techniques.
http://www.foxnews.com/story/0,2933,207930,00.html
Contrary to O’Reilly’s SPIN, this revelation actually destroys the Administration’s original claims relative to the FISA courts being too slow and cumbersome.
Did the Administration CLASSIFY the fact that they used FISA?
Did O’Reilly reveal classified information?
Chertoff implied as much.
.
August 17th, 2006 at 7:49 pmNo legislation is acceptable that violates the Constitution. Though, God knows, plently have been proposed and passed. This could all take awhile to get straightened out…but we don’t have the time. Spector’s proposed legislation is a kowtow to the admiinstration, and his performance in the Senate is disgusting. He pretends to be so offended, but always winds up with a brown nose. Sad….and even sadder for us. However…this IS the guy who came up (as a young legislative aide) with the idea of the “magic bullet” in the investigation of JFK’s assassination. You know, the one that defied simply physics.
Bottom line is that no further legislation is needed at all. The President broke the law. That’s all. Time to impeach both Bush and Cheney.
August 17th, 2006 at 8:48 pm#
#18 – Feingold is not enough if they’re just going to ignore him.
I’ve been thinking a little about what you’re saying. There’s a part of me that’s very disappointed with the majority of the Dems.
Either the they have to send out the lone target and know they’re going to get hit hard by KKKarl. Or, the Dems need to go out in force.
Feingold and Conyers are not enough.
Comment by Jesus Christ God of WAR — August 17, 2006 @ 2:15 pm
I agree completely and share this frustration. I ride my own Democratic Senator constantly (who resides in a largely Republican state)…get a backbone or you ultimately are no different than your opposition. The Dems need to be people of courage, but WE need to encourage them. Let them know that if they stand up for our democratic beliefs, We, the People, will support them. If they can’t do that, we will find others to replace them who do.
August 17th, 2006 at 8:57 pmI find Gonzales response interesting to read. What he is claiming is that the President under Article II has supreme power to defend the nation in the manner that he see fit. In other words Article II overrides “peacetime†protections under the 1st and 4th Amendments to the US constitution.
Yes, but there’s no distinction in the Constitution between “war time” or “peace time.” Can’t find it in the Bill of Rights either. Gonzales is acting as a personal attorney to the Prez, and we are paying for it. Of course, he’s in violation of his own office, and therefore, should be impeached. More rope for the hanging.
August 17th, 2006 at 9:02 pm#38 – Yes, I agree. I put peacetime in quotes because it is Gongalez that is attempting to make that distinction rather than the Constitution. This Judge appears to be piggybacking her decision on Hamdin, making it all the more difficult for the Bush position to prevail. Now if we only had a stained blue dress……
August 17th, 2006 at 10:58 pmIt’s Not Coming Together
The latest so-called terrorist plot was supposed to help the Bush administration with reasons for its questionable programs, and Mr. Bush did not waste any time stating the lasted terrorist plot in Britain was aided by his warrantless surveillance program. Mr. Bush, being greedy, also made a ploy for his financing surveillance program. It’s not wonder the people are claiming this terrorist plot was made to order for the President poll numbers and the “lame duck†programs that take away our basic rights.
As far as Alan Spector goes, one should look deeply into anything he does under the banner of non-partisan intentions. Every since he would not insist the Oil Kings would not be sworn in at a Senate Hearing, I have notice a very deceptive nature to his actions. Spector seems to be patronizing people’s outrage while supporting the reason for their outrage in the end; examples of this dynamic would be the warrantless surveillance program. He has been quoted to be very suspect of Mr. Bush’s warrantless surveillance program yet he drafts a solution that helps it.
Joseph
August 18th, 2006 at 3:38 am[...] Okay…we all heard the great news about the judge ruling that the NSA wiretapping scheme was illegal….but we’ve got to make sure that the GOP doesn’t try and push Sen. Specter’s sham of a “compromise” legislation on us instead, because that will just give Bush the go-ahead to do whatever he wants. [...]
August 18th, 2006 at 8:27 amGuys, as I posted endlessly on the other thread about this, Bush’s argument that they don’t have enought time to go to FISA to get a warrant because they might miss an opportunity to catch terrorists is B.S.
Since the warrantless wiretapping program was revealed last winter, not one person from the administration has complained that the process is too slow when it comes to purely domestic calls. Hmmm. Too slow for international monitoring, but no problem for domestic monitoring. Bush himself has said that they still go to FISA for domestic calls. Where is the bitching and whining now?
August 18th, 2006 at 9:07 amAnd one more thing. Regarding the NSA asking the phone companies for the records of their customers, don’t you find it odd that, if you believe that the NSA needed tens of millions of customers’ records to track terrorists, and the government is as serious about this as they say they are, that the NSA would just walk away from Qwest when that company declined a request for their records?
August 18th, 2006 at 9:11 amIf the Left Wing had its way the failed attempt to blow several airliners out of the sky last week would have succeeded. How can this country survive with leftist democrats in power?
August 18th, 2006 at 9:36 am” I argue the constitutional claims are based on the violation of FISA, and thus, Specter’s attempts to change FISA are still relevant. ”
I disagree, warrantless is warrantless. The unconstitutionality of the program resides in the unreasonableness of the search, violating the 4th Amend.
August 18th, 2006 at 10:22 am“”Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.
The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. ”
http://www.abcnews.go.com/Politics/wireStory?id=2325189
Journalists scholars and lawyers along with the ACLU need to be able to talk to each other and Al Quida without fear of eavesdropping by those pesky national security men.
This will play real well during the upcoming elections when the Republicans remind folks that the Democrats talk national security but at the same time do everything they can to undermine it.
August 18th, 2006 at 10:36 amThe real reason the Administration want process to be warrantless is because they are tapping thousands, if not millions, of conversations – so they can’t get warrants for all of these. Because they are tapping so many conversation its clear they would not be able to prove probable cause for each. They have no “probable cause” or even “reasonable suspicion” (lower std.), so of course they want to bypass FISA court.
August 18th, 2006 at 11:50 amThe real reason the Administration want process to be warrantless is because they are tapping thousands, if not millions, of conversations – so they can’t get warrants for all of these. Because they are tapping so many conversation its clear they would not be able to prove probable cause for each. They have no “probable cause†or even “reasonable suspicion†(lower std.), so of course they want to bypass FISA court.
Comment by Winston Smith — August 18, 2006 @ 11:50 am
Yep. And it’s not so easy to explain away a few thousand people by saying, “Ooops. Those were mistakes.”
August 18th, 2006 at 12:48 pm