| Friday, July 14, 2006
| That darned constitution
|The Bush administration begins the long, slow walkback from the unitary executive.
WASHINGTON, July 13 — After months of resistance, the White House agreed Thursday to allow a secret intelligence court to review the legality of the National Security Agency’s program to conduct wiretaps without warrants on Americans suspected of having ties to terrorists.
If approved by Congress, the deal would put the court, the Foreign Intelligence Surveillance Court, in the unusual position of deciding whether the wiretapping program is a legitimate use of the president’s power to fight terrorism. The aim of the plan, Attorney General Alberto R. Gonzales told reporters, would be to “test the constitutionality” of the program.
The plan, brokered over the last three weeks in negotiations between Senator Arlen Specter and senior White House officials, including President Bush himself, would apparently leave the secretive intelligence court free to consider the case in closed proceedings, without the kind of briefs and oral arguments that are usually part of federal court consideration of constitutional issues. The court’s ruling in the matter could also remain secret.
The court would be able to determine whether the program is “reasonably designed” to focus on the communications of actual terrorism suspects and people in the United States who communicate with them. That determination is now left entirely in the hands of the security agency under an internal checklist.
If the court were to rule the program unconstitutional, the attorney general could refine and resubmit it or, conversely, appeal the decision to the FISA appellate court and ultimately perhaps the Supreme Court, officials said.
Mr. Specter, a Pennsylvania Republican who is chairman of the Senate Judiciary Committee, predicted that the proposal, with the White House’s backing, would win approval in the Senate and the House. But it met with some immediate skepticism on Thursday from both Republicans and Democrats over whether it went far enough — or too far — in checking the president’s authority.
The proposed legislation represents a middle-ground approach among the myriad proposals in Congress for dealing with the wiretapping controversy, which has allowed the security agency to eavesdrop on the international phone calls and e-mail of thousands of people in the United States with ties to terrorism suspects.
Some Democratic critics of the program have proposed that it effectively be banned and that all wiretapping should have to be approved by the intelligence court. Some Republican supporters have sought to sanction its continued use without any judicial oversight at all.
By giving the intelligence court a clear role in the program, Mr. Specter said, the proposal seeks to create balance between giving the president the powers he needs to fight terrorism and ensuring some measure of judicial oversight to guard against abuses.
“It’s an acknowledgment to the president that he can fight terrorism and still have the court review his program,” Mr. Specter said. “And I think it allays a lot of concerns.”
No, actually the concerns about the program are still there. And anything brokered by mealy-mouthed Arlen is suspect as to whether it will have any real teeth with which to reign in the out of control White House. But the idea that the Congress even believes it has the power to even attempt oversight of the White House is a good signal, that at least the members believe they have ... uh ... actual power under the Constitution!
Of course, this latest Specterism fails to explain why the president simply doesn't ... say ... FOLLOW THE LAW, which requires each incident of domestic wiretapping to be approved by the FISA court. But then, that would be too much to ask of ole, Arlen.
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.Good luck, Jane. Maybe after November we can get this straight.
“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.”
Ms. Harman, who has introduced legislation of her own to restrict the program, said, “If we want to abandon a core Fourth Amendment protection, we should get on the Specter train, and I don’t plan to get on that train.” Similarly, the American Civil Liberties Union called the agreement a “sham” that was “nothing short of a capitulation by Chairman Specter to the White House.”
Update: ThinkProgress has the expected Specterisms in the new FISA compromise:
An administration official who spoke on condition of anonymity said the bill’s language gives the president the option of submitting the program to the intelligence court, rather than making the review a requirement.Specter appears to have received assurances from the White House that, if his bill is passed without changes, Bush would agree to exercise the option and submit the warrantless wiretapping program to the court for a judgment on its constitutionality. This compromise is a sham because it makes optional what Bush is already required to do. Under the FISA law, the administration can wiretap persons inside the U.S. But it is required to demonstrate that the targets are agents of a foreign power, like al Qaeda or their affiliates.
At least Specter is consistent.
Tags: FISA, NSA, Bush, Politics, Terrorism, surveillance, CONSTITUTION, spying
|posted by JReid @ 6:35 AM