Everything you wanted to know about Specter's "Sham NSA Bill"

[ProSense]

Friday, July 14, 2006

Specter Gives Up the Game-- The Sham NSA Bill

JB

Senator Specter has reached agreement with the White House on a bill that would amend FISA and allow judicial review of the Administration's domestic surveillance activities on a program by program basis. The text of the bill is here and a summary is here

Although the judicial review provision is worrisome, it is by no means the most troubling thing about this bill. Specter's proposed legislation, if passed in its present form, would give President Bush everything he wants. And then some. At first glance, Specter's bill looks like a moderate and wise compromise that expands the President's authority to engage in electronic surveillance under a variety of Congressional and judicial oversight procedures. But read more closely, it actually turns out to be a virtual blank check to the Executive, because under section 801 of the bill the President can route around every single one of them. Thus, all of the elegant machinery of the bill's oversight provisions is, I regret to report, a complete and total sham. Once the President obtains the powers listed in section 801, the rest of the bill is pretty much irrelevant. He will be free of Congressional oversight forever.

But first, the details: The bill authorizes the FISA court to permit "electronic surveillance programs"-- the key point being that these involve domestic surveillance of U.S. citizens-- for periods up to 90 days, periods which are indefinitely renewable. Authorization is on a program by program basis, rather than on the basis of the particular individuals who are being watched. All legal challenges to the surveillance program-- including challenges to the use of evidence in other prosecutions or litigation-- can be moved to the secret FISA court if the Attorney General states that national security demands it. The FISA court, in turn, has the power to dismiss a challenge to the legality of the program "for any reason." This provision seems puzzling: literally it says that the court can dismiss legal challenges to programs for any reason, whether good or bad, and even if the objections to the programs are well founded. In fact, the provision makes sense only if its purpose is to allow the FISA court to immunize Presidential surveillance from legal attack.

Snip...

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.


http://balkin.blogspot.com/2006/07/specter-gives-up-game-sham-nsa-bill.html

MEDIA BADLY BOTCHES REPORTING ON BUSH-SPECTER WIRETAPPING BILL.

So President Bush and Senator Arlen Specter, the Republican chairman of the Judiciary Committee, reached a "compromise" on legislation yesterday that would permit the secret FISA court to review the legality of the National Security Agency's warrantless wiretapping.

One of the most important facts about this pending legislation is that it doesn't make it mandatory that the review happen. This fact is critical because it shows that this "compromise" won't act as an institutional check on the President's authority in any meaningful way whatsoever.

Yet many news outlets buried this all-important info way down in their stories and sometimes mentioned it only in passing. The Times put it in their story's 22nd paragraph, the Washington Post in its 25th paragraph, the Associated Press in its ninth paragraph, and U.S.A. Today in its 13th paragraph. U.S.A. Today's story didn't contain a single word acknowledging that some people are severely critical of this "compromise."

Why did the Bush administration insist that the review not be mandatory? Because it didn't want to commit future Presidents to such a review, we're told. This is absurd on its face, but all the above news outlets showed absolutely zero skeptcism about it. With the exception of half a sentence buried at the very end of the Post article, none of them raised the possibility -- or even let critics raise the possibility -- that administration lawyers might have insisted on this being voluntary so that Bush would have the option of not submitting the NSA program or other surveillance for review, as the White House has wanted.

http://www.prospect.org/horsesmouth/2006/07/post_224.html

Cafferty on Specter’s New NSA Court Review
By: John Amato on Friday, July 14th, 2006 at 6:15 AM - PDT

http://movies.crooksandliars.com/CaffertyFile-NSA-Oversight.wmv

Snip...

Jane Harman takes a surprisingly tough stand against Specter and http://www.nytimes.com/2006/07/14/washington/14nsa.html">this measure:

In a separate interview, Representative Jane Harman of California, the ranking Democrat on the House Intelligence Committee, said she saw the Specter-White House agreement as an “end run” around the FISA law requiring the approval of individual wiretapping warrants.

“I have great respect for this guy,” she said of Mr. Specter, “but he hasn’t been briefed on this program, and he’s giving away in this legislation a core Fourth Amendment protection by basically saying that the FISA court has permission to bless the entire program, which will abandon, as best I can tell, the requirement of individualized warrants.”

http://www.crooksandliars.com/posts/2006/07/14/cafferty-on-specters-new-nsa-court-review

[Virginia Dare]

1. I held out brief hope..

that after Specter received his cancer diagnosis that he might
re-examine his priorities, grow some integrity, and actually stand up to the PNAC but that was a foolish notion.

[Hubert Flottz]

3. Why does he hate his own countrymen?

History will record what a coward he is and how he sold us out.

[ladjf]

4. Several t;imes.

[enough]

2. Thanks ProSense.

Great post.

[flyarm]

5. i just called his office and raised hell...sick of this f%$#@er! n/t

[me b zola]

6. I was looking for a post with a good analysis on the NSA scam

I truly fear for our Constitutional government.





recommended :(

[originalpckelly]

7. Like I said in my reply to Jack Cafferty about this....

It isn't a Constitutional law. Basically it is the Republican party giving itself a pardon for breaking the law.

[me b zola]

8. kicking for the night crew

:kick:

[New Government]

9. Thank you for this

The Specter/NSA "compromise" is an intelligence agencies dream come true.

[ProSense]

10. Wiretap Surrender

Wiretap Surrender

Sen. Specter's bill on NSA surveillance is a capitulation to administration claims of executive power.

Saturday, July 15, 2006; Page A20

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.

Snip...

But the cost of this judicial review would be ever so high. The bill's most dangerous language would effectively repeal FISA's current requirement that all domestic national security surveillance take place under its terms. The "compromise" bill would add to FISA: "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." It would also, in various places, insert Congress's acknowledgment that the president may have inherent constitutional authority to spy on Americans. Any reasonable court looking at this bill would understand it as withdrawing the nearly three-decade-old legal insistence that FISA is the exclusive legitimate means of spying on Americans. It would therefore legitimize whatever it is the NSA is doing -- and a whole lot more.

Allowing the administration to seek authorization from the courts for an "electronic surveillance program" is almost as dangerous. The FISA court today grants warrants for individual surveillance when the government shows evidence of espionage or terrorist ties. Under this bill, the government could get permission for long-term programs involving large numbers of innocent individuals with only a showing that the program is, in general, legal and that it is "reasonably designed" to capture the communications of "a person reasonably believed to have communication with" a foreign power or terrorist group.

Snip...

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 acceded to those powers on the fundamental rights of Americans.

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/14/AR2006071401578.html