Editore"s Note
Tilting at Windmills

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June 9, 2006

PREDICTABLY, SPECTER CAVES....Remember in February, when Sen. Arlen Specter (R-Pa.) unveiled a bill that would have mandated that the Bush administration get a warrant before tapping a domestic phone call? Don't worry; neither does Specter.

The senior senator from Pennsylvania has been all over the map on this one. First he wanted judicial oversight. More recently, Specter offered a "compromise" proposal whereby lawmakers could make the president's surveillance programs legal -- after the fact -- while also making it next to impossible for someone to have the legal "standing" to challenge the administration's conduct in court. Yesterday, Specter went ever further.

The chairman of the Senate Judiciary Committee has proposed legislation that would give President Bush the option of seeking a warrant from a special court for an electronic surveillance program such as the one being conducted by the National Security Agency.

Sen. Arlen Specter's approach modifies his earlier position that the NSA eavesdropping program, which targets international telephone calls and e-mails in which one party is suspected of links to terrorists, must be subject to supervision by the secret court set up under the Foreign Intelligence Surveillance Act (FISA).

The new proposal specifies that it cannot "be construed to limit the constitutional authority of the President to gather foreign intelligence information or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States."

It's hard to call this a "compromise." It's more accurate to call it a "bad joke."

Just a few months ago, as the public was learning about Bush's legally-dubious surveillance initiatives, Specter swore up and down that he'd demand full oversight and accountability. He talked about the needs for checks and balances. He was willing to make all kinds of public threats.

But it was just hollow rhetoric. Specter now believes a warrant from a FISA court to eavesdrop on a domestic phone call should be "optional." Anyone care to guess how frequently Bush might choose to exercise this "option"?

But wait; there's more.

Another part of the Specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law.

Specter believes the administration's surveillance efforts violated the law, but under his new approach, there's no punishment and no accountability. Silly me, I thought Republicans were against amnesty.

Glenn Greenwald captures the problem nicely.

The idea that the President's allies in Congress would enact legislation which expressly shields government officials, including the President, from criminal liability for past lawbreaking is so reprehensible that it is difficult to describe. To my knowledge, none of the other proposed bills -- including those from the most loyal Bush followers in the Senate -- contained this protective provision. And without knowing anywhere near as much as I would need to know in order to form a definitive opinion, the legality of this provision seems questionable at best. It's really the equivalent of a pardon, a power which the Constitutional preserves for the President. Can Congress act as a court and simply exonerate citizens from criminal conduct?

Violations of the law in the past are forgiven, and following the law in the future is "optional." Who could have imagined that Specter would cave so completely and abandon the positions he so forcefully articulated just weeks ago? Oh wait, everyone could have imagined it.

Steve Benen 6:51 PM Permalink | Trackbacks | Comments (64)

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Comments

I thought another "proposal" was to clear any future alleged "violations" with the Vice-President? At least SOME politicians in Washington want to still fight terrorists.

Posted by: Don P. on June 9, 2006 at 7:06 PM | PERMALINK

Compromise? Most likely blackmail.

Posted by: Hostile on June 9, 2006 at 7:12 PM | PERMALINK

Ah, the party of "rule of law." What would we do without them.

I mean, apart from win friends and influence people.

Posted by: craigie on June 9, 2006 at 7:13 PM | PERMALINK

Anybody seen Arlen's kids lately? Have they been staying with Uncle Cheney for a while?

Posted by: Rick on June 9, 2006 at 7:15 PM | PERMALINK

I thought another "proposal" was to clear any future alleged "violations" with the Vice-President? At least SOME politicians in Washington want to still fight terrorists.

In case any English professors are looking for an example to illustrate the concept of "non sequitur", here is a Grade A winner!

Posted by: craigie on June 9, 2006 at 7:15 PM | PERMALINK

You know what this is? Neutralizing oversight. The retrospective amnesty eliminates the motivation for anyone subordinate involved to cooperate with any investigation of what has been done in the past.

With Republicans increasingly concerned about losing Congress, they can no longer count on their majority power to avoid investigation. Since they are guaranteed to hold the executive, barring impeachment, death, or resignation -- of both the President and Vice President -- their best bet to maximize factional power is to do everything possible to transfer all available power, without accountability, to the executive.

Posted by: cmdicely on June 9, 2006 at 7:15 PM | PERMALINK

craigie:

It is not a "non sequitur" if SOME politicians in Washington (i.e. Murtha and Kerry) want to stop fighting terrorists.

Posted by: Don P. on June 9, 2006 at 7:22 PM | PERMALINK

Simple solution: just wrap your telephones in tinfoil...the same material you make your hats out of.

Posted by: Old Coot on June 9, 2006 at 7:22 PM | PERMALINK

Shame on you Steve. You should have sympathy for Arlen Specter as well as his wife and kids, whom I assume are currently hanging precariously over a pirahna tank in Karl Rove's secret underground lair.

Posted by: Raznor on June 9, 2006 at 7:24 PM | PERMALINK

I'd just like to speak up here and put in a good word for "Cheney" and "Don P." They are far more than shrieking voices of lunacy inside my head. They have also become close and valued friends.

yrs.,
Charlie
"not insane"

Posted by: Charlie on June 9, 2006 at 7:28 PM | PERMALINK

Thanks, but no thanks, "Charlie".

Posted by: Don P. on June 9, 2006 at 7:31 PM | PERMALINK
It is not a "non sequitur" if SOME politicians in Washington (i.e. Murtha and Kerry) want to stop fighting terrorists.

That counterfactual isn't really relevant to whether its a non-sequitur.

Posted by: cmdicely on June 9, 2006 at 7:31 PM | PERMALINK

Don P:

Thanks, but no thanks, "Charlie."

Don P. nailed it!

Posted by: Charlie on June 9, 2006 at 7:32 PM | PERMALINK

It's gotten to the point where Arlen Specter makes Ari Fleischer look like an honest man. He's a laughingstock. (Not that he was, rather like McCain, ever that much better.)

Posted by: paul on June 9, 2006 at 7:36 PM | PERMALINK

Charlie:

I'd just like to speak up here and put in a good word for "Cheney" and "Don P." They are far more than shrieking voices of lunacy inside my head. They have also become close and valued friends.

Right back at ya, Charlie. Also, thanks for hosting Cheney and meas well as an undetermined number of othersinside your deeply psychotic brain. It's been a wild, "crazy" ride so far, and I get the feeling we're just getting started!

Posted by: Don P. on June 9, 2006 at 7:38 PM | PERMALINK

All I can say to you Dems is please PLEASE run on this issue in November!

Posted by: Down goes Frazier on June 9, 2006 at 7:41 PM | PERMALINK

Down goes Frazier nailed it!

Posted by: Down goes Frazier on June 9, 2006 at 7:42 PM | PERMALINK

cmdicely:

It's not a "counterfactual" when both are on the record as wanting to stop fighting terrorists.

Posted by: Don P. on June 9, 2006 at 7:45 PM | PERMALINK

Kind of like a Letter of Marque and Reprisal, though those are directed against a country's enemies and operate outside its borders. Hmm, is there a better historical analogy?

Posted by: Jim Lund on June 9, 2006 at 7:51 PM | PERMALINK

Hey, I'm on the record as wanting to fight terrorists, so is every person in government, for what it's worth.

Without rule of law, we ARE the terrorists.

Posted by: DoctorJay on June 9, 2006 at 7:54 PM | PERMALINK

Don P.:

It's not a "counterfactual" when both are on the record as wanting to stop fighting terrorists.

Don, thanks for checking in from the left hemisphere of my brain. Now I'd like to give the right hemisphere a chance to add its two cents:

It's not a "counterfactual" when both are on the record as wanting to stop fighting terrorists and start eating babies.

Whew, that felt good. Don, what do you think?

Posted by: Charlie on June 9, 2006 at 7:57 PM | PERMALINK

Spector is just another piece of GOP shit.

When the going gets tough, Spector rolls over like a beaten fucking puppy.

Posted by: angryspittle on June 9, 2006 at 7:58 PM | PERMALINK

Charlie nailed it!

Posted by: Don P. on June 9, 2006 at 7:59 PM | PERMALINK
It's not a "counterfactual" when both are on the record as wanting to stop fighting terrorists.

It would not be correct if both were on record as wanting to stop fighting terrorists.

Posted by: cmdicely on June 9, 2006 at 8:05 PM | PERMALINK

What kills me is that the liberals are always complaining about balance of powers. Then, when the legislature and executive negotiate-- like the constitution says they should-- that's also not okay. Is there anything that would make the left happy?

Posted by: American Hawk on June 9, 2006 at 8:17 PM | PERMALINK

Finally, Specter realizes where his loyalties lie - with the American People, and against the terrorists and liberals. This is a great day for a unified GOP, standing firm and united to show the American people that they will protect them from the throat cutting islamofascists.

Posted by: American Fuck on June 9, 2006 at 8:23 PM | PERMALINK

Is there anything that would make the left happy?

Yes, you taking a job delivering kosher pizzas in Bagdad would be a start.

Posted by: Keith G on June 9, 2006 at 8:27 PM | PERMALINK

Yes, American "Hawk", can you please find the nearest light socket and put your finger in it?

"What luck for rulers that men do not think" - Adolf Hitler

Posted by: Red on June 9, 2006 at 8:27 PM | PERMALINK

The Soviet Union never had any domestic terrorist attacks by the Islamofascists! Nobody dared to. It's clear that the USSR is the model all right-thinking Americans need to emulate.

Posted by: Captain KoolAid on June 9, 2006 at 8:34 PM | PERMALINK

Does anyone here actually want to prohibit the wiretaps of calls between Amnericans and suspected terrorists abroad?

So far, no Senator has proposed ending such wiretapping. They're merely discussing formal procedure -- a less interesting topic. If there had been actual abuses in this program, I'd feel more concerned.

Posted by: ex-liberal on June 9, 2006 at 8:36 PM | PERMALINK

Does anyone here actually want to prohibit the wiretaps of calls between Amnericans and suspected terrorists abroad?

I do!

I hate America!

I get so angry when I see fat slob Americans driving their SUV's on the blood innocent Arabs. I wish George Bush would stop listening in on terrorist phone calls, because that takes away any chance that terrorists could take over Iraq, then use Iraq's air force to fly planes to the US and bomb us cities, and then land, and get out, and rape our women and children and goats, and behead people like fat Charlie and Don P.

Then I could hug trees in peace, and get abortions every week, and throw darts at my poster of Anne Coulter, and lobby the Liberal congressmen that the terrorists will install to pass laws to make gay marriage mandatory, so everyone can be encouraged to turn gay, because that's my vision for America. A gay, terrorist-loving, atheist paradise, where everyone walks everywhere, and trees are revered, and Christians are hunted down like dogs in the street.

This is what I learned in Public School, from my teacher. Who is a union member. And a terrorist.

Posted by: Strawman on June 9, 2006 at 8:48 PM | PERMALINK

If there had been actual abuses in this program, I'd feel more concerned.

One of the issues here, ex-lib, is that a lack of oversight has precluded you knowing about abuses.

Posted by: Keith G on June 9, 2006 at 8:51 PM | PERMALINK

Oh yeah, and every May Day, I could burn a flag in my front yard, in front of my statue of Stalin holding hands with Fidel Castro and Senator Ted Kennedy.

Posted by: Strawman on June 9, 2006 at 8:53 PM | PERMALINK

Once again, Arlen Specter proves himself to be, as the locals say in here in Hawaii, "all show, no go!"

Posted by: Donald from Hawaii on June 9, 2006 at 9:02 PM | PERMALINK

To get back to the point; The "compromise" described effectively redefines the 4th Amendment to state that the president has the power to wiretap where the president has reason to think the person wiretapped is associated with an enemy of the U.S. This power would operate without any judicial or congressional oversight, i.e. the only person deciding whether someone is associated with an enemy is the Decider.

How is this not simply an example of tyranny? One person decides whether that one person's exercise of significant governmental power is valid.

Posted by: glenn on June 9, 2006 at 9:03 PM | PERMALINK

glenn, you ask a good question. The confusion is that the terrorist threat has both elements of warfare and elements of criminal law enforcement.

This sort of warrantless wiretappng makes sense if one belives the terrorist challange is more like a war than a criminal investigation. E.g., obviously no warrant was required when the allies broke the Nazi military code and deciphered their secret messages.

Posted by: ex-liberal on June 9, 2006 at 9:19 PM | PERMALINK

obviously no warrant was required when the allies broke the Nazi military code and deciphered their secret messages.

Just when you think it can't get any dumber...

Posted by: craigie on June 9, 2006 at 9:32 PM | PERMALINK

Yes, if I want to keep my civil rights by forcing the government to OBEY THE LAW while fighting terrorism, obviously what I really want is for America to be bombed out of existence by some stark raving, Koran-perverting camel jockey.

Specter did say in his letter to Cheney that the FISA committee has never leaked stake secrets, has always been timely with its responses. There was no reason to go around FISA, period. So why do it - gee, would it be because they knew the wiretapping they wanted to do would not have been approved? Could it be that they intended to randomly, unreasonably listen in on private, domestic communications between citizens without cause? Does anyone rational for one second actually believe they confined their searches to international calls only? If so, they're fools.

Otherwise, why subvert a process that had been established to be working? If they broke the law, then why they shouldn't be punished??? Is it just because the perps are in you "conservatives'" ranks, and you can't deal with the idea that you might be supporting the wrong side? Are you so fooled by self-applied labels that you won't criticize actions that contradict them? Or are you just brainwashed into being that scared of terrorists? I'm not so scared that I'm willing to give up my freedom - why, because I'm an American, goddammit, a patriot who froths at the mouth when somebody tries to take it away. If the Bush Administration can't come up with a way to preserve my civil rights AND fight terrorism then by God they're not trying hard enough.

You ask what would please liberals - hell, I'm only slightly left of center, but I'll take a shot anyway (with the proverbial gun you'll pry from my cold, dead hands):

Gitmo closed, its occupants transferred to a domestic prison, charged with crimes and put on public trial; an extra 100,000 fresh troops in Iraq; smackdown on Iran for supplying insurgents; Halliburton's assets seized and their corporate charter revoked; members of Congress to grow a friggin' spine and start legally challenging the President; both parties to get out of the way and let competent groups with an actual vision (besides $$ in each eye) take over, Bush impeached, and everyone who is now or was in the Bush White House tried for war crimes and possibly treason.

But first and foremost, what would make me happy is for you head-in-the-sand, brainwashed, pseudo-conservative Bush cultists to WAKE UP and realize we're soon going to be living in a police state if this crap does not stop.

Posted by: Shannon E. Wells on June 9, 2006 at 10:18 PM | PERMALINK

ex-liberal,

I agree that categorizing the NSA wiretaps as an exercise of warfare is the intellectual basis for the Bush Administration's belief that what they are doing is reasonable. But it's not convincing.

Preliminarily, the breaking of codes of during WWII was of foreign powers, not domestic citizens. You might say this is a distinction without a difference. However, I think even FDR, and the citizens of the U.S. would have paused at the notion that FDR could decide on his own to wiretap, or read the mail of millions of Americans during WWII.

More to the point, using the label "war" to defend all exercises of governmental power while there are battles being fought somewhere effectively suspends the Constitution. If the President has inherent consitutional powers to ignore the 4th Amendment for the purposes of conducting a war, why not the other limitations on executive power?

Was 9/11 a constitutional convention? If the president solely decides when wiretapping is reasonable during war, and the war lasts forever, what are the actual limits on his power?

Posted by: glenn on June 9, 2006 at 10:34 PM | PERMALINK

Specter is a pusillanimous pussy. I can't believe I actually voted for him once, a couple decades ago.

Posted by: Nancy Irving on June 9, 2006 at 11:48 PM | PERMALINK

glenn asks, "If the president solely decides when wiretapping is reasonable during war, and the war lasts forever, what are the actual limits on his power?" That's a good question. I don't know the exact answer. I do think that the attacks by al Qaeda against the US and the west have many characteristics of a war. Since they're (more or less) making war on us, we should respond using (more or less) military rules.

The problem I have is in defining how much less than a full war the WoT is, or how much more than a criminal law enforcement. Although I can't say where the limits ought to be, I was OK with the NSA wiretapping program. It was limited to US/foreign calls and it was overseen by a small, bi-partisan group of Congressional leaders. It may not have been a perfect structure, but it was reasonable IMHO.

Sen. Spector is trying to find a better structure -- one that wouldn't interfere with necessary surveillance, but would better protect civil liberties. Trouble is, that's a hard nut to crack. If you focus only on civil liberties, it's easy to blast Bush. If you focus only on necessary spying, it's easy to mock Bush's critics. However, to find a balanced, yet effective, structure is very difficult.

Posted by: ex-liberal on June 10, 2006 at 12:13 AM | PERMALINK

From his days as an attorney,working for the Warren commission,Spector has worked his tail off covering up for "the Secret Government".

Posted by: proudleftists on June 10, 2006 at 12:30 AM | PERMALINK

Sen. Spector is trying to find a better structure -- one that wouldn't interfere with necessary surveillance, but would better protect civil liberties.

I was wrong! It can get sillier!

It's time for you to put away your toy pipe and granpa's tweed sweater, and take a bath. It's way past your bedtime.

Posted by: craigie on June 10, 2006 at 12:41 AM | PERMALINK

Why this macho talk about caving? The legislative process is not a boxing match. Senator Specter isn't perfect, but he's one of the very few, Republican or Democrat, who has in any sense questioned the NSA actions. My senator, Diane Feinstein, sent me a response to my email that she considered General Hayden to be talented, experienced and intelligent and of course she voted for him. There can be no balance of power or Congressional oversight if Presidents can issue signing statements. He has his thumb on the scales of justice and in our eyes. He's trying to cross the Rubicon.

Posted by: anciano on June 10, 2006 at 12:46 AM | PERMALINK

Why this macho talk about caving? The legislative process is not a boxing match.

It wasn't formerly a bowing and scraping match, either. But now it is, and Arlen's a contender.

Posted by: shortstop on June 10, 2006 at 12:50 AM | PERMALINK

shortstop has many keen insights into politics. Amoung her other recent discoveries are that solar flares are caused by Republican economic policies, and that the reason her husband is cheating on her is not, as everyone thought, because she's an ugly skank, but, rather, because Vice President Richard Cheney hasn't been impeached.

Posted by: Aunt Sassy on June 10, 2006 at 1:08 AM | PERMALINK

Wow, Aunt Sassy. You misspell "amoung" just like the real Don P., now posting as GOP/Atheist/etc., does. That's so cool!

Posted by: shortstop on June 10, 2006 at 1:14 AM | PERMALINK

I don't think it's the "real" Don P. Smells more like Al/Charlie.

Posted by: craigie on June 10, 2006 at 1:37 AM | PERMALINK

Nah ah. Not me.

Posted by: Don P. on June 10, 2006 at 1:53 AM | PERMALINK

Nah, it's the real Don P. He's evidently spent his entire Friday night sitting here waiting for any and all new posts to argue with. I made fun of him earlier and you know how angry! angry! angry! he gets, plus there's his proven inability to argue with women without resorting to specifically gender/sexual insults. (Pale Rider turned out to have his number on that one.) Now, don't make me pull up those threads where you humiliated yourself in that regard, Don.

Posted by: shortstop on June 10, 2006 at 1:57 AM | PERMALINK

Aw, he's just playing good cop corrupt cop again. Give him a break, it's got to be awfully tiring at his age and in his condition to be performing his 'magic bullet contortionist' routine again. "Come on Arlen, you helped the party sell a lie to those idiotic mouth breathing voters after the Kennedy thing, what's a little indemnification from high crimes and misdemeanors?"

What a turd.

Posted by: Eric Paulsen on June 10, 2006 at 2:18 AM | PERMALINK

I'm with craigie. Not the real Don P.'s style. But who cares?

Posted by: cleek on June 10, 2006 at 2:36 AM | PERMALINK

Not me. You're all obsessing over him, which is what he wants. shortstop, get a life.

Posted by: Mimikatz on June 10, 2006 at 3:03 AM | PERMALINK


Not me. You're all obsessing over him, which is what he wants. shortstop, get a life.

Some part of you must care, else you'd not be here at this hour offering up cliched suggestions.


Posted by: jayarbee on June 10, 2006 at 4:26 AM | PERMALINK

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Posted by: gdsfd on June 10, 2006 at 4:35 AM | PERMALINK

maybe specter has found for the bush administration...


their silver bullet

Posted by: thisspaceavailable on June 10, 2006 at 8:40 AM | PERMALINK

Specter is nothing more than a manipulator of words for his own benefit - effectively, yet another Republican liar out for the good of noone and nothing but himself. He SPECulates on what voters and the American public want to hear, then TERminates all logical thought as he caves to the far right and the administration's policies.

Posted by: Thinker on June 10, 2006 at 9:43 AM | PERMALINK

ex-liberal you make agood point but it has nothing to do with the real problem.Enacting legislation to protect criminal conduct is reprehensible and unamerican.

Posted by: gandalf on June 10, 2006 at 11:50 AM | PERMALINK

However, I think even FDR, and the citizens of the U.S. would have paused at the notion that FDR could decide on his own to wiretap, or read the mail of millions of Americans during WWII.

Posted by: glenn on June 9, 2006 at 10:34 PM | PERMALINK

I have to doubt that very much glenn. Considering that FDR ordered the forced removal and internment of US citizens of Japanese ancestry into camps at the same time.

While I am aware of the famous or infamous, depending on your point of view, Supreme Court decision that upheld FDR's actions. Off the top of my head, I cannot recall if he was acting pursuant to his powers as C-in-C or did Congress pass a law authorizing this.

If no law were passed, I would say that if the President's Article 2 powers permitted that action, it certainly would permit Bush's NSA program.

Posted by: Chicounsel on June 10, 2006 at 1:09 PM | PERMALINK


CHICOUNSEL: If no law were passed, I would say that if the President's Article 2 powers permitted that action, it certainly would permit Bush's NSA program.

Yeah, because the suspension of Constitutional rights and the temporary internment of Japanese Americans during a war for which there was a clear objective and foreseeable endpoint is exactly the same as permanently eliminating basic Constitutionally guaranteed rights for all citizens in order to wage a made-up war to which there is no possible end--much less, victory.


Posted by: jayarbee on June 10, 2006 at 5:15 PM | PERMALINK

jayarbee -- I've heard the "clear objective abd foreseeable endpoint" argument from others. Bur, ISTM that's only true in retrospect. The Axis was terribly strong compared with al Qaeda. In the midst of the war, we didn't even know if we would win, let alone how long it would take or what the ending would look like.

Posted by: ex-liberal on June 10, 2006 at 6:00 PM | PERMALINK


all this talk of f.d.r and ww-2....


Days after bombing Pearl Harbor that Japan surrendered to U.S. forces: 1,365


Days since September 11, 2001 that Osama bin Laden has remained uncaptured: 1700+

Posted by: thisspaceavailable on June 10, 2006 at 6:28 PM | PERMALINK

cheney: Your point is that it was easier to win WWII after dropping 2 atomic weapons?

when did u-s drop nukes in europe?


Posted by: thisspaceavailable on June 12, 2006 at 10:16 AM | PERMALINK




 

 

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