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Re: Specter prepping bill to sue Bush

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  • 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 1 of 2 , Jul 24, 2006
      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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