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Specter prepping bill to sue Bush

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  • Greg Cannon
    http://news.yahoo.com/s/ap/20060724/ap_on_go_co/signing_statements Specter prepping bill to sue Bush By LAURIE KELLMAN, Associated Press Writer 2 hours, 5
    Message 1 of 2 , Jul 24, 2006
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      Specter prepping bill to sue Bush

      By LAURIE KELLMAN, Associated Press Writer 2 hours, 5
      minutes ago

      WASHINGTON - A powerful Republican committee chairman
      who has led the fight against President Bush's signing
      statements said Monday he would have a bill ready by
      the end of the week allowing Congress to sue him in
      federal court.

      "We will submit legislation to the United States
      Senate which will...authorize the Congress to
      undertake judicial review of those signing statements
      with the view to having the president's acts declared
      unconstitutional," Judiciary Committee Chairman Arlen
      Specter, R-Pa., said on the Senate floor.

      Specter's announcement came the same day that an
      American Bar Association task force concluded that by
      attaching conditions to legislation, the president has
      sidestepped his constitutional duty to either sign a
      bill, veto it, or take no action.

      Bush has issued at least 750 signing statements during
      his presidency, reserving the right to revise,
      interpret or disregard laws on national security and
      constitutional grounds.

      "That non-veto hamstrings Congress because Congress
      cannot respond to a signing statement," said ABA
      president Michael Greco. The practice, he added "is
      harming the separation of powers."

      Bush has challenged about 750 statutes passed by
      Congress, according to numbers compiled by Specter's
      committee. The ABA estimated Bush has issued signing
      statements on more than 800 statutes, more than all
      other presidents combined.

      Signing statements have been used by presidents,
      typically for such purposes as instructing agencies
      how to execute new laws.

      But many of Bush's signing statements serve notice
      that he believes parts of bills he is signing are
      unconstitutional or might violate national security.

      Still, the White House said signing statements are not
      intended to allow the administration to ignore the

      "A great many of those signing statements may have
      little statements about questions about
      constitutionality," said White House spokesman Tony
      Snow. "It never says, 'We're not going to enact the

      Specter's announcement intensifies his challenge of
      the administration's use of executive power on a
      number of policy matters. Of particular interest to
      him are two signing statements challenging the
      provisions of the USA Patriot Act renewal, which he
      wrote, and legislation banning the use of torture on

      Bush is not without congressional allies on the
      matter. Sen. John Cornyn (news, bio, voting record),
      R-Texas, a former judge, has said that signing
      statements are nothing more than expressions of
      presidential opinion that carry no legal weight
      because federal courts are unlikely to consider them
      when deciding cases that challenge the same laws.
    • Ram Lau
      http://glenngreenwald.blogspot.com/2006/07/defeating-specter-bill.html Defeating the Specter bill by Glenn Greenwald (updated below) Yesterday s significant
      Message 2 of 2 , Jul 24, 2006
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        Defeating the Specter bill
        by Glenn Greenwald

        (updated below)

        Yesterday's significant judicial defeat of the Bush administration in
        the EFF/AT&T NSA case underscores just how pernicious the Specter FISA
        bill is, and how urgent it is that it not be enacted. It has been
        clear for some time that both the federal district judge in the EFF
        case, as well as the judge in the ACLU case pending in the Eastern
        District of Michigan, are unwilling to simply roll over and offer the
        administration the type of blind deference which the Congress and even
        other courts have been willing to extend in the area of national
        security. As a result, these cases threaten to subject the
        administration to that which it fears most: judicial review of its

        The Specter bill -- in addition to its other multiple flaws -- would
        solve this problem almost entirely for the administration. Section
        702(b) of the bill (entitled "Mandatory Transfer for Review") protects
        the administration in numerous ways from meaningful judicial review:

        First, it requires (if the Attorney General requests it, which he
        will) that all pending cases challenging the legality of the NSA
        program (which includes the EFF and ACLU cases) be transferred to the
        secret FISA court. Thus, the insufficiently deferential federal judges
        would have these cases taken away from them. Second, it would make
        judicial review of the administration's behavior virtually impossible,
        as it specifically prohibits (Sec. 702(b)(2)) the FISA court from
        "requir(ing) the disclosure of national security information . . .
        without the approval of the Director of National Intelligence of the
        Attorney General." That all but prevents any discovery in these
        lawsuits. Third, it quite oddly authorizes (Sec. 702(b)(6)) the FISA
        court to "dismiss a challenge to the legality of an electronic
        surveillance program for any reason" (emphasis added). Arguably, that
        provision broadens the authority of the court to dismiss any such
        lawsuit for the most discretionary of reasons, even beyond the already
        wide parameters of the "state secrets" doctrine.

        When the Specter bill was first announced last week, it appeared it
        would be politically difficult to block its enactment. The only real
        impediment to a legislative resolution of the NSA scandal has been
        Specter's inability to induce the White House to agree to any
        proposal. Once Specter obligingly crafted a bill which gives the White
        House everything it could possibly want and then some, the White House
        finally agreed to allow Specter to legalize its program, and it was
        hard to see how a bill which has the support both of the White House
        (and therefore all White House Senate allies) and Specter could be

        But this article this morning from the Washington Post's Dan Eggen
        (one of the best journalists on this story) suggests that the Specter
        bill may already be experiencing some significant problems. It begins
        by noting that the Specter bill was one "personally negotiated by
        President Bush and Vice President Cheney" -- a fact that I had not
        seen reported previously and which reflects just how important it is
        for the President to have a legislative solution which protects his
        from the consequences of his illegal eavesdropping behavior.

        Eggen also clearly recognizes that the claim by the Post and other
        newspapers last week that the Specter bill is a "compromise" is false,
        and was merely the self-serving characterization peddled by the
        parties involved (which, thanks to Eggen's gullible colleagues, became
        the lens through which the Specter bill was described):

        The proposal was billed as a rare and noteworthy compromise by the
        administration when unveiled last week. But the legislation quickly
        came under attack from Democrats and many national security experts,
        who said it would actually give the government greater powers to spy
        on Americans without court oversight.

        Eggen reports today that the Specter bill "ran into immediate trouble
        this week, as Democrats and other critics attacked the proposal while
        key GOP leaders in the House endorsed a different bill on the same
        topic." The plan of both Specter and the White House appeared to be to
        push a quick vote by the full Senate on this bill. Barbara O'Brien was
        on a conference call with the ACLU this week and reported that Specter
        "is determined to bring his bogus bill . . . to a vote this week." But
        according to Eggen, that plan is now derailed:

        Specter, chairman of the Senate Judiciary Committee, canceled a
        markup session for his proposal that had been scheduled for yesterday.
        He announced instead plans instead (sic) for a full committee hearing
        Wednesday on the Foreign Intelligence Surveillance Act (FISA), the
        1978 statute at the center of the debate.

        One problem, according to Eggen, is that key House Republicans who
        either are facing tough re-election campaigns or who are looking for
        fights with the White House -- including Heather Wilson, Pete
        Hoekstra, and Jim Sensenbrenner -- have introduced mildly less
        deferential legislation than Specter's bill (virtually everything, by
        definition, is less deferential), and have made some noises that they
        would not support Specter's bill. Additionally, even generally
        accommodating Democrats such as Jane Harman have, at least thus far,
        expressed relatively steadfast opposition to the Specter bill,
        although it is unclear whether any Democratic support would be
        necessary to enact this bill (Senate Democrats, however, could and
        should filibuster this legislation).

        There is still a real chance to derail the Specter bill. When it was
        announced, the shining "concession" which Specter touted was the White
        House's verbal, highly conditional "promise" to submit the question of
        the constitutionality (not the legality, but only the
        constitutionality under the Fourth Amendment) of warrantless
        eavesdropping to the FISA court (something which the bill does not
        actually require). But the White House's agreement to submit this
        question to the FISA court was conditioned upon there not being any
        changes at all to the Specter bill in its current form -- something
        that seems unlikely if House Republicans continue to push their own
        legislative solution and key Democrats continue to object to the
        Specter bill. As the Post put it on the day the agreement was announced:

        If Congress amends the bill in any way that Bush disapproves, he
        will not be obligated to submit the wiretap program to the FISA court
        for review, Specter said.

        More significantly, there is far more media attention being paid to
        executive power abuses than ever before. Not only the editorial page
        of the New York Times, but also the much more pro-administration
        Washington Post editorial page, have urged defeat of the Specter bill
        in unusually emphatic terms. Articles decrying the administration's
        executive power abuses are now common. Even David Broder yesterday
        took notice of the Bush administration's radical executive power
        theories and the total Congressional abdication of any oversight role,
        but he proclaimed: this "is beginning to change."

        In terms of the political climate for these issues, today is a much
        different -- and better -- world even as compared to three months ago.
        Discussions of Bush's executive power abuses are no longer confined to
        blogs, the Boston Globe, and the office of a Senator from Wisconsin.
        That there is a pressing need for checks to be imposed on the Bush
        administration's limitless claims to power is now a mainstream and
        widely recognized view. Media elites finally understand it and
        political officials can discuss these matters with much less
        resistance than before.

        Many Republicans who are facing tough re-election battles, such as
        Rep. McDonald, need to demonstrate that they do not simply roll over
        for the White House. Democrats have an opportunity to impose a serious
        defeat on the White House by taking a real stand against this truly
        destructive Specter bill. It is not difficult to make clear that
        opposition to the Specter bill is not an anti-eavesdropping position,
        but simply a desire to preserve the safeguards and checks and balances
        which our country has had for the last 25 years and with which all
        Presidents before the current one -- Republican and Democrat alike --
        easily complied without complaint while defending the nation.

        The Specter bill is a true menace to checks and balances on the
        executive branch, to the restoration of the rule of law, to the
        critical constitutional principles re-affirmed by the Supreme Court in
        Hamdan, and to the fundamental principle that political officials who
        break the law must be held accountable. It would also return the
        country to the pre-FISA era when the executive branch could eavesdrop
        on Americans with no meaningful oversight or limits, a situation which
        led to widespread abuse. It is critical that this bill be blocked and,
        surprisingly, there seems to be real opportunities to do just that.
        The question now is whether Congressional Democrats, and/or key
        Republicans, will seize that opportunity.

        UPDATE: I have an article regarding many of these issues in the
        current issue of In These Times -- entitled "Rechecking the Balance of
        Powers" -- and it is now available online. The article discusses the
        Bush administration's manipulation of the "state secrets" doctrine,
        its general efforts to block all methods for judicial review of its
        actions, and the effect which Hamdan will have on these tactics as
        well as on the administration's radical theories of executive power
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