Specter's latest cave


Most people think that a compromise involves concessions by both sides to a dispute. Arlen Specter defines compromise differently. He defines it as conceding everything so long as there is something he can plausibly spin to make it look like he got something. So with the latest "compromise" on Bush's criminal violations of FISA, in which Bush gets the right to spy on anyone he wants whenever he wants and Specter gets a fig leaf.

In many ways, the sad state we are in can be inferred from the Headline to the New York Times story about this disaster. It reads:
Bush Would Let Secret Court Sift Wiretap Process
That really says it all. Get out your constitution, if you will. Try to find a line in there about the president's power to vest or divest a court of jurisdiction over anything. There is none. I'm fairly sure that even George III lacked that power.
According to the Times, this is the compromise:
If approved by Congress, the deal would put the court, the Foreign Intelligence Surveillance Court, in the unusual position of deciding whether the wiretapping program is a legitimate use of the president’s power to fight terrorism. The aim of the plan, Attorney General Alberto R. Gonzales told reporters, would be to “test the constitutionality” of the program.

The plan, brokered over the last three weeks in negotiations between Senator Arlen Specter and senior White House officials, including President Bush himself, would apparently leave the secretive intelligence court free to consider the case in closed proceedings, without the kind of briefs and oral arguments that are usually part of federal court consideration of constitutional issues. The court’s ruling in the matter could also remain secret.

The court would be able to determine whether the program is “reasonably designed” to focus on the communications of actual terrorism suspects and people in the United States who communicate with them. That determination is now left entirely in the hands of the security agency under an internal checklist.

Where do you start? First of all, the question of constitutionality is, with regard to this program, secondary to the issue of illegality. The program breaks the law as the law is currently written. The Supreme Court in Hamdan sent as strong a message as it could that the president does not have the authority to disregard positive law. But that's okay, because, here's what the act (full text here ) does:

It basically makes recourse to the existing FISA procedures optional. It does this by doing two things. It adds a section to the statute which states that nothing in the FISA statute shall be construed to limit the powers of the president to engage in electronic surveillance. (That moaning you heard was John Yoo having an orgasm). It allows the president (but does not require him) to go to the secret FISA court for a determination of whether any non-FISA procedures are constitutional. In other words, the president can decide for one reason or another that he wants to engage in warrantless wire-tapping. Since he asserts that he has the constitutional power to do that, he would simply go ahead and do it. If he has qualms about the constitutionality of his actions, he can seek court approval, but nothing requires him to do so. And if he should do so, the court would have to rule on the constitutional issue only. The fact that the program clearly violates FISA would be rendered irrelevant.

As frosting on the cake, the Attorney General can force any non-FISA civil case (such as the cases brought against the phone companies for opening our records to the public) to be sent to the FISA court for review, where the plaintiffs will have no right to be heard regarding the legal issues or any right to know the true nature of the program that they are challenging. The FISA court can order any such case dismissed and the plaintiffs need never know why.

Even Heather Wilson (R-NM) is willing to state the obvious: that the FISA court was never intended for this purpose. As she said:

“That to me is not what the FISA court is set up to do,” she said. “The judges approve warrants — they’re not there to rule on matters of constitutionality.”

So let's review. The FISA court is itself a constitutional anomaly. It may or may not be constitutionally necessary or proper. It is a secret court. People whose rights are affected by that court's actions never know about it; or know about it only long after the fact. If it must exist, its role should be circumscribed. This bill will effectively emasculate the court's legitimate role, by allowing Bush to create "electronic surveillance programs" of any nature, which he can determine, in his sole discretion, are not subject to FISA's warrant requirements. If he wants, he can ask the court to legitimize his actions. The court can do so in secret, and we will never know. He's supposed to tell Congress what is going on, but we know that he won't. This is not a compromise, and it is not protection of civil liberties. It is a ratification of a presidential power grab of historic proportions.

Why do these people continue to pretend that they are dealing with people of honor? Oaths mean nothing to people like Gonzalez. Laws mean nothing to Cheney and Bush. The problem with this program has always primarily been the fact that Bush knowingly broke a law that he knew he had an obligation to obey. He is getting absolution without even saying a sincere Act of Contrition. This statute is simply an invitation to abuse.
Posted: Saturday - July 15, 2006 at 11:25 PM          

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