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Specter: Administration broke law
February 5, 2006 7:39 PM   Subscribe

Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, says President George W. Bush's warrantless surveillance program appears to be illegal. Appearing on NBC's "Meet the Press," Specter called the administration's legal reasoning "strained and unrealistic" and said the program appears to be "in flat violation" of the Foreign Intelligence Surveillance Act.
posted by bukharin (47 comments total)

 
Damned liberal turncoat republicans.
posted by verb at 7:43 PM on February 5, 2006


I love american politics - the more people state the obvious the less likely it is that something will be done.
posted by homodigitalis at 7:45 PM on February 5, 2006


I'll start the chorus...
"Can we impeach him NOW???"
posted by papakwanz at 7:47 PM on February 5, 2006


Did today's Washington Post A1 article get posted? Cause that was something too.
posted by smackfu at 7:49 PM on February 5, 2006


Here's my 2 cents: the Republican party recognizes the need to take Bush down before he takes them all down with him, but they're going to do it over this instead of over Iraq, because they don't want to make war look bad. The military industrial complex wouldn't approve of having a war dragged through the courts. Money money money.
posted by fleetmouse at 7:52 PM on February 5, 2006


Does anyone know if Congress really is allowed to create laws restricting the President's ability to protect the country? Ignoring the fact that most of these taps lead to nothing, is FISA constitutionally acceptable? I was under the impression that Congress regulating how he does this would be like Congress regulating how the Supreme Court is allowed to rule on cases or the President creating restrictions on how Congress passes laws.

And I am really not in favor of this program. I think it was done in a needlessly offensive manner and completely offensive for the reason listed above. But the question of whether or not FISA is constitutional is really interesting... and the most important question in the whole scandal.
posted by aburd at 7:54 PM on February 5, 2006


God, I know I dont ask you for much... Please oh please take "W" down and take him down hard.
Amen.
posted by subaruwrx at 7:54 PM on February 5, 2006


That's a cute spin, aburd, but FISA has been on the lawbooks since the 70s, so it really isn't "the most important question in the whole scandal."

The most important question is, who is going to stand up for the rule of law, and impeach this fucker.
posted by stenseng at 7:59 PM on February 5, 2006


I'm really not trying to spin anything. I really don't like that Bush has been doing these wiretaps broadly and outside of the traditional methods. But when this goes to court the constitutionality of FISA is going to be the biggest question of the entire trial. You and I may find this program offensive, but if the law baring it is unconstitutional our mutual dislike may not really matter.

Also the fact that FISA has been around since the 70s isn't a factor. An old yet unchallenged law can be found unconstitutional.
posted by aburd at 8:04 PM on February 5, 2006


That is how Specter is spinning it though. That it is a clear violation of FISA, but that FISA might need an exception for Presidential power in order to be Constitutional.
posted by smackfu at 8:04 PM on February 5, 2006


I was under the impression that Congress regulating how he does this would be like Congress regulating how the Supreme Court is allowed to rule on cases or the President creating restrictions on how Congress passes laws.

Well, that's a pretty stupid impression to be under. It would be more like the Supreme court ruling on what congress can and can't do, which they do all the time.

Serously, why would have that impression?
posted by delmoi at 8:05 PM on February 5, 2006


Grover Norquist: Bush Broke The Law.

NBC Poll Shows Solid Majority Opposes Warrantless Wiretaps.
posted by ericb at 8:06 PM on February 5, 2006


It doesn't matter who opposes what if the legislative branch does not have the will to follow through.
posted by Rothko at 8:07 PM on February 5, 2006


I mean, if the president could just do whatever the hell he wanted as long as it was not unconstitutional, he could cut or levee taxes on his own, he could redistribute money as he saw fit, and he could make up whatever rules he wanted, and force people to follow them. In short, it would make congress totally superfluous.

Congress makes the laws, and the president follows (and executes) them.
posted by delmoi at 8:08 PM on February 5, 2006


Too bad Spectre just let a justice get appointed who'll let the governemnt get away with more and more of this shit.

Now he's just posturing for moderate votes, so fuck him.
posted by Space Coyote at 8:08 PM on February 5, 2006


By the way, the republican smear machine is already trashing someone who worked at the congressional research service, who said this was illegal. He *ghasp* donated to the Kerry campaign.
posted by delmoi at 8:09 PM on February 5, 2006


"when this goes to court the constitutionality of FISA is going to be the biggest question of the entire trial" - Oh, I disagree !

I think the big questions will concern possible Constitutional violations - and possible lawbreaking - on the part of George W. Bush
posted by troutfishing at 8:10 PM on February 5, 2006


I saw this interview this morning (afternoon?) Russert was asking very biting questions. You could see the uneasiness in Specter, as if to say "yes, I know all this is wrong, but I can't totally sell my party out on Meet the press." Refreshing to see genuinue concern for the lawlessness that has been occurring.
posted by AllesKlar at 8:15 PM on February 5, 2006


NSA Spying Myths
posted by homunculus at 8:16 PM on February 5, 2006


If you want something done about this, you might start by writing your representative
posted by papakwanz at 8:19 PM on February 5, 2006


Why Congress won't get through to the NSA.

We shall see.
posted by homunculus at 8:21 PM on February 5, 2006


Watch out, I hear the president can put a personal hit out on you.
posted by Balisong at 8:22 PM on February 5, 2006


Spectre, get in there and frame the debate. Take control of this fiery chariot and send it straight to Heaven!
posted by The Jesse Helms at 8:29 PM on February 5, 2006


I mean, if the president could just do whatever the hell he wanted as long as it was not unconstitutional

It isn't that the President can do whatever he wants as long as it isn't unconstitutional. The Supreme Court has decided to treat the War on Terror like it is an actual war. They have allowed us to take US citizens who are on the opposing side of this war into custody without trial for extended periods of time solely based on the idea that this "war" is all about protecting the nation. I think the whole idea of this being a war is silly. How can you have a war on a battle tactic or a religious viewpoint? It just doesn't make sense. But for all practical purposes, the government on all sides is viewing this as a war. So we have to work under the idea that what the President is doing is done as Commander and Chief of the US. Congress doesn't really have a say in how he does that job.

So for FISA to be able to restrict the President's actions as Commander and Chief it would mean that Congress can encroach on one of the few constitutional powers the President has. Now no one I have talked to or anything I have read has been able to say why or why not Congress has this authority. Even The Nation article linked above, when tackling this question, only says that the courts haven't decided on this topic yet. All of the cases ruled on the President's powers have either skirted the topic of FISA or took place pre-FISA. So again, this is the biggest unanswered question concerning this entire scandal.
posted by aburd at 8:33 PM on February 5, 2006


I'm not a Constitutional scholar, but I don't think the Constitution gives any specific powers to the President to protect the country no matter the cost or legality.

Only Congress can declare war (and despite what the media call these military operations, the U.S. hasn't been in a 'war' since 1945) and although, as Commander-in-Chief of the armed forces, the President may use that power granted by the Constitution to protect us physically from an invader or similar threat, I see no power granted to break a law passed by Congress, regardless of whether it was done 'in good faith' as Specter said earlier this week.

All of the arguments or excuses made thus far by various administration officials and others try to confuse the issue of what 'legal' is and what powers the President has.

Congress is there to check the President. President Bush sidestepped that check. Seems fairly simple to me.
posted by WhipSmart at 8:42 PM on February 5, 2006


Space Coyote, TJH: nice spelling. (I'm assuming/hoping it's deliberate.)
posted by rob511 at 8:51 PM on February 5, 2006


aburd - from homonculus' link:

"Myth 5: The President as Commander in Chief cannot be regulated by Congress.

"The Administration's ultimate defense is that even if Bush broke the law, his constitutional authority as Commander in Chief permits him to do so at his discretion. According to the Justice Department, Congress cannot limit his choice of how to "engage the enemy." This rationale is not limited to wiretapping. On the same theory, Justice argued in 2002 that he could order torture despite a criminal statute to the contrary. It is that theory that Bush was presumably invoking when, in signing the amendment barring "cruel, inhuman and degrading treatment" of terrorism suspects, he said he would interpret it "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief."

"Bush tried this theory out on the Supreme Court in the Guantanamo cases, when he argued that it would be an unconstitutional intrusion on his Commander in Chief powers to extend habeas corpus review to Guantanamo detainees. Not a single Justice on the Court accepted that radical proposition. But that hasn't stopped Bush from asserting it again. After all, when you get to say what the law is, what's a contrary Supreme Court precedent or two?"
posted by kyrademon at 8:55 PM on February 5, 2006


BTW, it's Arlen SPECTER, not SPECTRE.

He's not a Bondian secret terrorist organization.


OR IS HE???
posted by stenseng at 8:59 PM on February 5, 2006


Justice argued in 2002 that he could order torture despite a criminal statute to the contrary.

The reason I didn't address that is that I have no idea what case he is talking about. I have been googling like crazy looking for it and I don't see it anywhere. If that is an accurate characterization of what happened then FISA would be constitutional, at least according to that vague representation of an unspecified Supreme Court case from 2002.
posted by aburd at 9:02 PM on February 5, 2006


"But for all practical purposes, the government on all sides is viewing this as a war. So we have to work under the idea that what the President is doing is done as Commander and Chief of the US. Congress doesn't really have a say in how he does that job."

I suppose this could be called the "almost like a war" defense.
posted by troutfishing at 9:04 PM on February 5, 2006


aburd and WhipSmart, you may wish to read my reply to a recent AskMe. An authorization to use military force under the War Powers Act is legally equivalent to a declaration of war. There is nobody in Congress or the Judiciary who fundamentally disagrees with this. I will agree that a Declaration of War is cleaner. But the legal authority for war powers is there.

The disagreement, however, is over what those war powers specifically extend to.

Does anyone know if Congress really is allowed to create laws restricting the President's ability to protect the country?

I think the principle of three branches of government, designed to check and balance each other, almost by its inherent nature, suggests so. The Constitution does define presidential powers to include "taking care that the laws be faithfully executed" (II. 3), and the President is also designated as Commander-in-Chief of the armed forces. That's almost all that the Constitution has to say about Presidential powers relating to the military.

Congress, on the other hand, has a laundry list of charges (highlights mine):
* To define and punish piracies ... and offenses against the law of nations;
* To declare war ... and make rules concerning captures on land and water;
* To raise and support armies ... and maintain a navy;
* To make rules for the government and regulation of the land and naval forces;
* To provide for ... the militia to execute the laws of the union, suppress insurrections and repel invasions;
* To provide for organizing ... the militia, and governing such part of them as may be employed in the service of the United States, reserving to the states ... the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
* To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.


In addition, the Constitution defines international treaties which are entered into by the United States according to the set procedure (President's signature, Senate's ratification) as the Supreme Law of the Land. Thus the President would be bound by laws over and above what Congress might define -- international law.

The historical record shows that there is never a permanent consensus on the balance of powers. The branches continually assert authority to themselves, and the Supreme Court arbitrates the disputes between Congress and the President. (To date, although the constitutional authority explicitly exists, Congress has not tried to limit the scope of powers of the Supreme Court. The Court has varied in size and had other amendments.)

No President has fully acknowledged that the War Powers Act governs or limits his authority (it was passed over Nixon's veto), but neither has any President challenged that authority -- they have largely complied with the letter of the law, not always its spirit, filing reports along with their objections (formally, "reservations").

In particular, the Foreign Intelligence Surveillance Act has been litigated, and generally upheld. As recently as 2002 the Bush administration was arguing against an expansion of its scope, due mainly to the damage it would do to pursuing criminal cases if evidence was obtained unconstitutionally. Thus in other circumstances and venues the administration has acknowledged limitations on its powers and strong constitutional justification for those limitations.

That said, Specter and the narrow majority of Democrats plus moderate Republicans are not -- as of yet -- setting out to impeach the President. I personally doubt that this Congress will, even if the timeline allowed it. Presidents have broken laws before without impeachment charges. What is likely is that the Terrorist Surveillance Program will become formalized with enabling legislation governing its activities, probably requiring FISA involvement rather than NSA staffers. I don't think that the outcome will be a major dismantling or fundamental emasculation of the program; there will be a compromise that will give it a legal fig leaf, and a tiny bit of accountability.
posted by dhartung at 9:14 PM on February 5, 2006


aburd, I don't mean to be rude, but are you an idiot or something? You seem to be amazed that the President isn't above the law. Have you recently moved to the U.S. from a dictatorship? I would point out that while you keep going on about Congress constraining the President, bills are signed by the President before they become law. (Yes, I know about overriding the veto.) By the way, I would be interested if you could point to me the constitutional provision banning murder. I don't think you can find one. But that doesn't mean that the President can murder people as he walks down the street and declare it necessary in a time of war. Why? Because there are laws against that, and the President is subject to the law. Including FISA. And the whole point about why the administration's arguments are so disturbing is that Bush is essentially arguing that he should not be subject to any checks and balances - including judicial review, and including laws like FISA, since the U.S. is "at war." (Note lack of declaration of war, therefore lack of defined end to such war.)
posted by Dasein at 9:16 PM on February 5, 2006


Presumably, under his theory, if he needed to Bush could even take over, oh let's say for the sake of argument... Steel Mills!

Oh, no, wait ... even with his awesome Unitary Superpowers that'd be a no-no. At least until he invokes the magic spell "911! War President! Alakazam! Back me up, neato Alito!"
posted by kaemaril at 9:20 PM on February 5, 2006


That was a really good answer dhartung. Thanks.
posted by aburd at 9:24 PM on February 5, 2006


aburd, the 2002 reference is to the Yoo memo, which was an advisory opinion shared within the Executive Branch, not part of a court case per se.

At approximately the same point in time, Justice Dept. lawyer James A. Baker (no, not that one) argued before Congress that the "proposed change [to permit warrantless surveillance under FISA] raises both significant legal and practical issues, the Administration at this time is not prepared to support it." In fact, of course, that's precisely what they were already doing. That last link is blogger Glenn Greenwald (an experienced First Amendment attorney), who has been advising the Senate Judiciary Committee as they question Gonzales -- who may have perjured himself attempting to split the difference between his own administration's dual, contradictory stances on the issue.
posted by dhartung at 9:25 PM on February 5, 2006


You guys are making this harder than it needs to be:

Does anyone know if Congress really is allowed to create laws restricting the President's ability to protect the country?

Yes. Congress could simply defund the wiretapping program and/or make it illegal to spend federal money on or in support of warrantless wiretaps. Congress can defund and bar spending on any damn near anything it wants to.
posted by ROU_Xenophobe at 9:53 PM on February 5, 2006


thank you for the detailed comment, dhartung.... but, although not as thourough, I was basically saying the same thing... or so I thought...
posted by WhipSmart at 10:08 PM on February 5, 2006


make that thorough
posted by WhipSmart at 10:10 PM on February 5, 2006


if the president could just do whatever the hell he wanted as long as it was not unconstitutional, he could cut or levee taxes

i like that led zeppelin song, "when the levy brakes", don't ewe?
posted by quonsar at 10:27 PM on February 5, 2006


So all we are clear on at the moment is that various politicians keep questioning whether a law has, or has not been broken, and if it has, it may come under review that the law intself is unconstitutional.
posted by Mip at 10:59 PM on February 5, 2006


Mip:

Not really. Two main points to address here:

Whether a law has, or has not been broken. It's clear at this point that FISA, a duly-enacted statute that (among other things) prohibits warrantless domestic surveillance has been broken as a consequence of an executive order signed by Bush. The Department of Justice has conceded this, but is making a counter-argument that the NSA program is authorized under the 2001 Authorization for Use of Military Force against al-Qaeda.

There is really a broad concensus among legal scholars that DOJ's defense is pretty crappy. To boil it down, it basically says that when Congress passed the AUMF and gave President Bush "all necessary and appropriate force" against al-Qaeda, that authorization included the permission to engage in warrantless domestic surveillance. The trouble is that FISA explicitly prohibits this, and it is generally accepted that a broad authorization (i.e., "all necessary and appropriate force") does not override a previous specific legislative prohibition (i.e., FISA) unless it specifically states that.

Someone mentioned the steel mills case, Youngstown. There, in a concurring opinion, Justice Jackson wrote that the President's power is "at its lowest ebb" when it conflicts with the implicit or explicit will of Congress, and that is exactly what has occurred here.


...and if it has, it may come under review that the law itself is unconstitutional. There's been very few cases that I can think of that involved FISA's constitutionality. I don't even know if it ever came under the Supreme Court's review, though it was ruled valid under lower courts.

The argument the administration's apologists seem to be making these days is that it encroaches on the President's Article II authority as Commander-in-Chief. Well, under Article I, Congress has the power to "make rules for the government and regulation of the land and naval forces," and, under Article II, the executive branch must "faithfully execute" these rules.

If the surveillance in question only involved foreign targets, there would have been no issue - there would have been no violation of FISA, and no constitutional difficulties, since it's been long acknowledged that the President has the power to regulate foreign intelligence. However, Congress has traditionally retained the power to regulate domestic affairs such as surveillance, and that's exactly what it's done with FISA.
posted by Pontius Pilate at 11:50 PM on February 5, 2006


just let a justice get appointed who'll let the governemnt get away with more and more of this shit.

Now he's just posturing for moderate votes, so fuck him.


Specter is a tool, he's proved that every time bad shit start going down for Bush -- but he also knows that since he's from a not-100%-monkeyfuck-insane state, he has at least to pretend not to be Bush's faithful butler.

now that he's obeyed his master re: the Alito confirmation, he has to posture, just a bit. Bush knows that, it's called politics -- you give me what I want, then I'll allow you to pretend that you're attacking me on something else.
posted by matteo at 12:20 AM on February 6, 2006


We are going to wag our fingers. We are going to wag our fingers very hard in your direction. Bad president! Don't ever do that again.
posted by dances_with_sneetches at 5:46 AM on February 6, 2006


Article II of the constitution does not stand alone. The Bill of Rights was promptly added to the Constitution out of recognition that the Constitution as written offered no protection against some of the abuses of the British colonial government still fresh in living memory. If it was considered an abuse of power for the British government to conduct warrantless searches against an underground military insurrection prior to 1776, and if it was considered prudent for a government flanked by hostile superpowers to limit searches in 1791, then why is it not prudent to maintain the necessary check of a minimal court review on wiretaps in 2005?

The other side of the story is that in FISA, congress set up a system of radical shortcuts that makes it easy to get a warrant through a confidential process. If time is critical, the President is authorized to wiretap without a warrant, if he informs congress after the fact.
posted by KirkJobSluder at 8:55 AM on February 6, 2006


“...then why is it not prudent to maintain the necessary check of a minimal court review on wiretaps in 2005?”

9/11. It’s all different now. We’re in far more danger than we were in during the civil war or WWI or WWII or during the cold war or during the war of 1812 ... n’stuff.

Also, the war on terr. Which will end 9/11 when the president 9/11 says the terr is over.
In fact, since the danger is 9/11 so great, we should suspend habeus corpus 9/11 altogether and tap all domestic calls 9/11 as well, since the 9/11 hijackers used internal calls to plan the attack.
9/11.
I’m just curious 9/11 why he hasn’t done that already 9/11 to protect our freedoms 9/11.
posted by Smedleyman at 11:17 AM on February 6, 2006


Taking down Bush with wiretapping is like taking down Al Capone with tax evasion. I mean, yeah, I'd be happy to see him humiliated, but I would much prefer to see him go down for the real crimes and misdemeanors, not this petty bullshit. But whatever gets the job done at this point will be fine. If I were a betting man I would say expect another republican in 2008, more of the same, and Bush in happy retirement, but then, I'm a pessimist.
posted by Civil_Disobedient at 4:37 PM on February 6, 2006


What pisses me off is how arbitrary the whole thing is!! I would understand if they were spying on people because they were their political enemies (like Nixon) but to work so hard to defend spying on people because they ordered pizza from the same place as a lady lived next door to a guy who called another dude whose address was in the laptop of a guy who got killed by a predator airstrike in Afghanistan in early 2002.

It is the opposite of reasonable cause, unreasonable cause I guess, when you let a machine decide if somebody is a suspect or not.
posted by Megafly at 6:54 PM on February 6, 2006


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