Specter Caves
Occasionally I read something that is so infuriating that I really don't know what I'd do if I didn't have this blog to vent my frustration. Such was the case this morning when I read (via Glenn) that Arlen Specter has struck a deal with his Republican colleagues on his proposed NSA legislation.
I've previously observed that the one redeeming feature of Specter's proposed bill is that it would affirmatively require the administration to seek prior judicial approval of its warrantless surveillance activities, albeit on a program-wide basis. This would at least ensure that the program met minimal constitutional standards, as no judge would approve a program that violates the Fourth Amendment.
But according to The Hill, Specter's "compromise" with Senate Republicans consisted of his agreement to drop the judicial pre-clearance provision.
So under this compromise bill, the only way the administration's secret warrantless surveillance activities can be legally challenged is if an individual litigant can prove to the court that he was the victim of this secret surveillance. That's no different than the status quo, except that the accompanying amendments to FISA would likely moot any statutory challenge such a litigant currently has, leaving him with only a constitutional challenge.
But more importantly, could there be anything more Orwellian than requiring would-be challengers of a top secret surveillance program to prove that they were personally spied upon? When the government has exclusive access to the information necessary to mount a legal challenge to its activities, the relevant law is effectively nullified. It is illusory. Theoretically, under such a system, the government could admit to violating the rights of half the citizens in the country, but because no one would know which half, no one could mount a successful legal challenge.
But the Senate Republicans know this. In fact, they're counting on it. The article in The Hill characterizes this compromise as the administration "retain[ing] a basic legal defense." Please. Standing is a bizarre procedural technicality, not a basic legal defense. It has absolutely nothing to do with the merits of the challenge. It is an inconsistently applied procedural doctrine designed to keep the dockets clear of claims brought by plaintiffs with no real stake in the outcome of the case. The administration hopes to retain this "defense" because, under the circumstances, it can be used to keep otherwise solid legal challenges from reaching any adjudication on the merits.
And, as I've argued all along, that is exactly what the Bush administration has been trying to avoid from the very beginning. They have zero confidence in their legal theories, and everything that they have done up to this point can be explained by their intense desire to avoid any judicial review of these theories (Glenn makes this same point forcefully). I think fear of the courts is what motivated the administration to bypass Congress in the first place. I think it explains why they chose to strong-arm the telecom companies into voluntarily cooperating instead of going through legal channels to secure a warrant or subpoena. And I think it is why they have fought so hard against Specter's seemingly benign piece of legislation.
The administration knows that its legal theories are not likely to withstand judicial scrutiny. But they are hoping that by keeping the details of their most controversial activities secret, they can avoid ever having to defend the legality of those activities in court. It's quite a gamble. But with the help of their Republican allies in Congress, they just might succeed.
I've previously observed that the one redeeming feature of Specter's proposed bill is that it would affirmatively require the administration to seek prior judicial approval of its warrantless surveillance activities, albeit on a program-wide basis. This would at least ensure that the program met minimal constitutional standards, as no judge would approve a program that violates the Fourth Amendment.
But according to The Hill, Specter's "compromise" with Senate Republicans consisted of his agreement to drop the judicial pre-clearance provision.
Specter has mollified conservative opposition to his bill by
agreeing to drop the requirement that the Bush
administration seek a legal judgment on the program from
a special court set up by the Foreign Intelligence
Surveillance Act (FISA) of 1978.
Instead, Specter agreed to allow the administration to
retain an important legal defense by allowing the court,
which holds its hearings in secret, to review the program
only by hearing a challenge from a plaintiff with legal
standing, said a person familiar with the text of language
agreed to by Specter and committee conservatives.
Conservative Republicans who pushed for the change say
that it will help quell concerns about the measureÂs
constitutionality and allow the White House to retain a
basic legal defense.
So under this compromise bill, the only way the administration's secret warrantless surveillance activities can be legally challenged is if an individual litigant can prove to the court that he was the victim of this secret surveillance. That's no different than the status quo, except that the accompanying amendments to FISA would likely moot any statutory challenge such a litigant currently has, leaving him with only a constitutional challenge.
But more importantly, could there be anything more Orwellian than requiring would-be challengers of a top secret surveillance program to prove that they were personally spied upon? When the government has exclusive access to the information necessary to mount a legal challenge to its activities, the relevant law is effectively nullified. It is illusory. Theoretically, under such a system, the government could admit to violating the rights of half the citizens in the country, but because no one would know which half, no one could mount a successful legal challenge.
But the Senate Republicans know this. In fact, they're counting on it. The article in The Hill characterizes this compromise as the administration "retain[ing] a basic legal defense." Please. Standing is a bizarre procedural technicality, not a basic legal defense. It has absolutely nothing to do with the merits of the challenge. It is an inconsistently applied procedural doctrine designed to keep the dockets clear of claims brought by plaintiffs with no real stake in the outcome of the case. The administration hopes to retain this "defense" because, under the circumstances, it can be used to keep otherwise solid legal challenges from reaching any adjudication on the merits.
And, as I've argued all along, that is exactly what the Bush administration has been trying to avoid from the very beginning. They have zero confidence in their legal theories, and everything that they have done up to this point can be explained by their intense desire to avoid any judicial review of these theories (Glenn makes this same point forcefully). I think fear of the courts is what motivated the administration to bypass Congress in the first place. I think it explains why they chose to strong-arm the telecom companies into voluntarily cooperating instead of going through legal channels to secure a warrant or subpoena. And I think it is why they have fought so hard against Specter's seemingly benign piece of legislation.
The administration knows that its legal theories are not likely to withstand judicial scrutiny. But they are hoping that by keeping the details of their most controversial activities secret, they can avoid ever having to defend the legality of those activities in court. It's quite a gamble. But with the help of their Republican allies in Congress, they just might succeed.
posted by A.L. at 9:44 AM
4 Comments:
In the time frame leading up to this bill's referral and passage, Bush's position remains in jeopardy if I understand this correctly. To grasp at straws a bit more, every day, every wiretap could theoretically be counted until its passage? But after its passage, and if the Dems don't screw it up but they regain the House/Senate can this current bill be reversed? And since it hasn't passed yet, with Tice testifying tomorrow on the Satellite spying perhaps that program will not be included with the wiretaps and would afford a new opportunity to hold BushCo accountable. There's only so long we can hope that another Whistleblower comes forward, this time with a specific case of overreaching. It's always darkest before the dawn.
Specter is a tool who talks tough, sounding independent, and then sides with his Republican colleagues.
The errors by this Administration and Congress, both foreign and domestic, will take a long, long time to undo.
I'm just confused over Specter's tough guy talk followed by...the exact opposite of what he says. Who is this guy exactly? Is he a weasly politican or a a sincere man with no spine?
I agree with you mainsailset, lets wait and see what happens Wednesday. This bill is no where near passing yet, and there is more to be exposed.
I'm at a loss to understand what cudgel the administration and the rubber-stamp party leadership hold over someone like Specter - assuming that is indeed sincere in his beliefs.
He's not up for reelection, he's in his 70's and near the end of his career, he's not one of "them" anyway - and there's a passable chance that centrists may again have a place at the table in Republican party politics once the current regime implodes.
So... why wimp out each and every time? I'm really starting to believe that some of this transcends even the hardest of hardball politics and gets into Godfather territory.
AL, thanks, as always, for an informative and thought provoking piece.
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