Senator Specter (almost a good man again) published a long eloquent statement on the shortcomings of the FISA bill and explained why he will capitulate in the end.
He did it again! Arlen Specter published the statement below on his web site clearly delineating how the FISA bill is not in conformance to the Constitution, pledged to amend the bill, and vote for it even if his amendment is defeated. As is consistent with his past conduct in the Senate, he eloquently and accurately identified the major flaws in the bill, but will vote for it anyway. What happened to defending the constitution? In my opinion, he is worse than the buffoons that bought the Bushit and convinced themselves that the bill is good for the country (or at least their re-election prospects). Specter clearly states how voting for the bill is the wrong thing to do, then proceeds to state he will vote for it.
His statement is below.
Joe
http://butlerdemblog.blogspot.com
U.S. Senator Arlen Specter (R-PA), Ranking Member of the Senate Judiciary Committee, today submitted for the Record the following prepared remarks regarding the proposed Foreign Intelligence Surveillance Act (FISA) reform legislation as part of a statement he made on the floor of the Senate:
"The Senate is coming to a critical vote on our duty to exercise our most fundamental constitutional obligation on separation of powers: to strike the appropriate balance between the war against terrorism and protecting civil rights. We are asked by the House of Representatives to approve their bill on amending the Foreign Intelligence Surveillance Act, a bill which gives retroactive immunity to the telephone companies that facilitated warrantless surveillance, but does not require a judicial determination that the government’s program was constitutional.
"It is totally insufficient to confer immunity merely because the companies received written requests from the government saying the program was legal. While it is true that the standard of review has been changed from "abuse of discretion" to "substantial evidence" in this bill, the real question is "substantial evidence" of what? Only that the President authorized the program and the government sent written requests to the companies assuring them it was legal. The court is not required to find that the requests were lawful, or that the surveillance itself was constitutional.
"The provision that the legislation will be the exclusive means for the government to wiretap is meaningless because that specific limitation is in the 1978 Act and it didn’t stop the government from conducting the warrantless Terrorist Surveillance Program with the telephone companies’ assistance. The bill leaves the President with his position that his Article II powers as commander in chief cannot be limited by statute. That is a sound constitutional argument, but only the courts can ultimately decide that issue, and this bill dodges the issue by limiting judicial review.
"The constitutional doctrine of separation of powers has been mangled since 9/11. I believe that, decades from now, historians will look at the time between 9/11 and the present as the greatest expansion of unchecked executive power in the history of the country. I believe that much, if not most, of that power was necessary to fight terrorism and I led the fight as Chairman of the Judiciary Committee to expand law enforcement powers under the PATRIOT Act. I also offered numerous pieces of legislation designed to bring the Terrorist Surveillance Program under federal court review and to ensure that vital intelligence gathering could continue with appropriate oversight. In the 109th and 110th Congresses, I introduced several versions of the National Security Surveillance Act (first introduced on March 16, 2006), the Foreign Intelligence Surveillance Improvement and Enhancement Act (with Senator Feinstein, first introduced on May 24, 2006), and the Foreign Intelligence Surveillance Oversight and Resource Enhancement Act (first introduced on November 14, 2006).
"There has to be a check and balance. The Congress has been totally ineffective, punting to the courts and then seeking to limit the courts’ authority as the House of Representatives is now doing. The problem is compounded by the fact that the Supreme Court had ducked and delayed deciding where the line is between Congressional authority under Article I and presidential authority under Article II. Let me document the ineffectiveness of Congress:
(1) Signing Statements: The constitution is explicit that Congress sends legislation to the president who has only two options: sign or veto. Instead on key provisions limiting executive authority, including Senator McCain’s amendment–adopted 90 to 9 in the Senate—to ban "cruel, inhuman or degrading" treatment of any prisoner held by the United States, and the new PATRIOT Act sections requiring audits and Congressional reporting to ensure the FBI does not abuse its terrorism-related powers to secretly demand the production of records, the President has signed the Congressional presentment and then issued a statement asserting his Article II power to ignore those limitations.
My legislation to give Congress standing to challenge the constitutionality of those signing statements has gone nowhere because of three factors: (1) the disinclination of Congress to challenge the president in the context of getting blamed if there were another terrorist attack; (2) the virtual impossibility of overriding a veto; and (3) the doubts by a few that such legislation would satisfy the constitutional requirements of the case and controversy.
(2) Requiring Supreme Court Review of the TSP and Habeas: The efforts to get a Supreme Court ruling on the constitutionality of the Terrorist Surveillance Program were ducked by the Supreme Court. The ruling of the U.S. District Court in Detroit holding the Terrorist Surveillance Program unconstitutional was reversed by the 6th Circuit on a 2-1 vote on lack of standing and the Supreme Court denied certiorari. The doctrine of standing has enough flexibility, as demonstrated by the dissent in the 6th Circuit, to have enabled the Supreme Court to take up the most fundamental clash between Congress and the president in our era, if the Supreme Court had the courage to do so.
The Supreme Court acted almost as badly on the habeas corpus issue in initially denying certiorari on the D.C Circuit’s decision in Boumediene, which ignored the plain language in Rasul confirming that habeas corpus was a constitutional right, not just one based on legislation which Congress had changed. Only when confronted with the overwhelming evidence on the inadequacy of the Combat Status Review Tribunals did the Supreme Court finally grant a petition for reconsideration on certiorari and ordered the District Courts to grant habeas corpus review after a very long delay.
(3) Violation of the National Security Act: The Congress was remedy-less to do anything when the President ignored the National Security Act of 1947 which requires notification of programs like the Terrorist Surveillance Program to the House and Senate Intelligence Committees. It was only when the administration needed the confirmation of General Michael Hayden to be Director of the CIA that any effort at compliance was made.
(4) Subpoenas for Telecoms: My efforts as Chairman of the Judiciary Committee in June 2006 to get information about the telephone companies’ warrantless wiretapping were obstructed by an unusual breach of protocol by Vice President Dick Cheney personally when he went behind my back to urge other Judiciary Committee members to oppose my efforts to subpoena the telephone companies which, unlike the administration, could not plead executive privilege.
(5) Military Commissions Act: Congress has been docile, really inert, in failing to push back on the executive’s encroachment on our authority. My amendment to retain habeas corpus in the Military Commissions Act was defeated 48-51. Meanwhile, the Graham-Levin amendment to the National Defense Authorization Act for Fiscal Year 2006 passed by the shocking vote of 84-14 despite the fact that it was drafted overnight, had no hearing and virtually no debate with my having only two minutes to speak in opposition. On its face the amendment stripped the Supreme Court of jurisdiction by vesting exclusive jurisdiction with the District of Columbia Circuit. It would be hard to find an amendment on a more important subject given less scrutiny and passed with less thought and in such haste.
(6) FISA Substitution Amendment: Similarly, the Senate defeated my amendment to the Foreign Intelligence Surveillance Act which would have substituted the government for the telephone companies as the defendants in the pending litigation. That would have protected the telephone companies but left the courts to decide if the program was constitutional.
"The Senate now has the opportunity to provide for judicial review by amending the House Foreign Intelligence Surveillance Act bill to authorize the U.S. District Courts to determine the constitutionality of the administration’s program before granting immunity to the telephone companies.
"The case for that determination has an important extra dimension beyond separation of powers. It involves a repugnant factor; namely, that the government had instigated and maintained for many years a secret practice, the scope of which is unknown to the public and known only to some members of Congress. It smacks of Star Chamber proceedings from old England. Now the administration insists on retroactive immunity and the House has complied. It is time the Senate stood up and earned its reputation as the "world’s greatest deliberative body" and at least demonstrate some courage, if not a full profile, by insisting on judicial review.
"In offering an amendment for judicial review, I am mindful of the importance of what the telephone companies have been doing on the war against terrorism from my classified briefings. It is a difficult decision to vote for retroactive immunity if my amendment fails, but I will do so, just as I voted for it when my substitution amendment failed because I conclude that the threat of terrorism and the other important provisions in the House bill outweigh the invasion of privacy.
"I do so with great reluctance because it sets a terrible precedent for the executive to violate the Foreign Intelligence Surveillance Act, the National Security Act of 1947, and the presentment clause of the constitution and then receive a Congressional pardon. It is especially galling since Congress could both protect the telephone companies by substitution and allow the lawsuits to go forward or authorize their continuance by my amendment.
"I also intend to vote for the bill regardless of what happens to my amendment because of the other important features of the bill. It requires prior court review of the government’s foreign-targeted surveillance procedures, except in exigent circumstances (the 7-day exception). Also, the FISA Court must determine whether—going forward—the foreign targeting and minimization procedures satisfy the Fourth Amendment. The bill also requires prior, individualized court orders based on probable cause for U.S. persons when they are outside the country. And, the bill requires a comprehensive Inspector General review of the Terrorist Surveillance Program.
"I know that this nuanced position of fighting retroactive immunity and then voting for the bill will be misunderstood because of the complexity of the issues and the subtleties of my rationale.
"I have been similarly misunderstood in my castigation of the provisions eliminating statutory habeas corpus and court-stripping in the Military Commissions Act and then voting for the bill. I did so, and gave my contemporaneous reasons, because the Act contained many important provisions, such as implementing the Geneva Conventions in accordance with the Supreme Court’s Hamdan ruling. The Act also brought the military commissions within Congressional authorization and the law—something the current bill seeks to do for vital intelligence gathering. I said at the time that the Supreme Court would strike the exclusion of habeas corpus, leaving the rest of the Act intact under the severability clause, and that did happen in Boumediene.
"It is my hope that my colleagues in the Senate and House too would give a little extra consideration to this issue because it is past time for Congress to assert itself and at least leave the courts free to determine constitutional rights and separation of powers."