Will This New Deal Be Enough?
Senator Arlen Specter has been working on a new piece of legislation for the past couple of months. That legislation focuses on the president's Article II powers, especially during wartime, and the scope of the surveiallnce he ordered. Now, our readers know where we stand. The president was well within his purview and restraints when he executed that program theough the NSA. Furthermore, the FISA Court of Review, in it's one and only case, found in favor of the executive on a similar matter in In re: Sealed Case.
The WaPo today has the story on the compromise struck between Senator Specter and the White House. Here are the key paragraphs:
A deal negotiated between the White House and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) came with conditions. Bush is insisting that Congress first give him new leeway in some areas of surveillance and that all lawsuits challenging his eavesdropping policy be funneled to a Washington-based intelligence court that operates in secret. ...
...The legislation would allow the Justice Department unlimited attempts to revise the program to meet the court's approval and would allow it to appeal adverse court rulings. It would also give the NSA in emergency situations a week rather than the current 72 hours to eavesdrop on a domestic target without requesting a warrant, and it would allow the government to send to the FISA court all lawsuits challenging the program's legality. Some suits, filed by groups such as the American Civil Liberties Union, are already pending in various federal courts.
Consolidating lawsuits under the FISA system, Specter said, would prevent federal courts "all over the country" from issuing contradictory rulings on the NSA program. ...
..."The bill recognizes the president's constitutional authority and modernizes FISA to meet the threats we face from an enemy that kills with abandon and hides as they plot attacks," said spokeswoman Dana M. Perino.
But Specter, briefing reporters at the Capitol, said his bill would recognize the president's constitutional powers only in general terms and would make it clear that the administration must defer to judicial restraints. "The proposed legislation acknowledges, as we must, the president's inherent Article II authority," he said. "But when the court makes a decision, the court will make a decision in the traditional context that the president does not have a blank check.
"Unless the court finds it's constitutional," he said of the warrantless wiretap program, "it cannot function." ...
Specter said his intent is to get a "determination on constitutionality of the overall program." He added: "It is suggested, but I do not know, that it is impractical to have individual warrants."
He said the bill would direct the attorney general to tell the FISA court what steps NSA takes to minimize the surveillance program's scope and possible privacy invasions, and to explain "how the program is reasonably designed to ensure that the communications intercepted involve a terrorist, agent of a terrorist, or someone reasonably believed to have communicated or associated with a terrorist."
At the administration's insistence, the bill would impose higher penalties for "officials who knowingly misuse foreign intelligence information."
This is a key piece to the whole piece of legislation. This addition, though not detailed in the WaPo story, should become the number one deterrent to leakers, if the penalties are stiff enough. The president and the administration know that right now they cannot seem to keep a lot of things secret with the press blowing operations and investigations all over their front pages and top-of-the-hour newsbreaks. There have been six major leaks in the last ten months, or so. The WaPo was responsible for two of them and the New York Times had two of them. At this time in history, this is an important issue, and I am happy to see it being addressed.
Specter predicted that Congress will pass his bill, even though its two chambers have clashed over immigration, the USA Patriot Act and other matters. If Congress amends the bill in any way that Bush disapproves, he will not be obligated to submit the wiretap program to the FISA court for review, Specter said. ...
... The White House conceded in part because it believes the NSA program will survive constitutional muster and the Specter bill will make it easier to argue that the program complies with congressional statutes as well. "We've always said it's constitutional," said one administration official who was not authorized to speak on the record.
The language acknowledging the president's constitutional authority to conduct intelligence operations also was important to the White House. "We see it as historic because here's a statute recognizing an authority the president says he has," the administration official said.
Still, that language alone might mean little because it did not define the scope of the authority or explicitly suggest that a president did not need to seek court approval for warrants. But at the same time, Specter agreed to repeal a section of the original FISA law that made it the exclusive statute governing such intelligence programs. ...
For the poor fools at the WaPo, under Article II, the powers of the president to conduct war are virtually limitless. Few challenges have been made through the courts involving the president's wartime powers. The only one coming to mind at the moment is Korematsu in 1944. That case specifically asked if the president and congress had overstepped their boundaries. And that is the key to the president's limit during wartime. Is it legal? The NSA program, the president's authority to order and utilize warrantless surveillance against our enemies, is legal as the FISA Court of Review decided in 2002.
The combination of the statement acknowledging presidential authority and the deletion of the exclusivity clause left open the interpretation that Bush has the power to conduct other surveillance outside FISA's purview, a possibility administration officials noted with approval.
Sen. Russell Feingold (D-Wis.) criticized the agreement, saying he will oppose "any bill that would grant blanket approval for warrantless surveillance of Americans, particularly when this administration has never explained why it believes that current law allowing surveillance of terrorist suspects is inadequate."
Rep. Edward J. Markey (D-Mass.) said: "While I am pleased that President Bush finally has conceded that the domestic surveillance program should be subjected to FISA court scrutiny, this should not exempt the secret program from thorough congressional scrutiny."
Leave it to the senior Democrats to step up and make absolute fools of themselves. A memo to Senator Feingold should read: "Dear Russ, we're not spying on Americans UNLESS they are in contact with al-Qaeda, or they area part of al-Qaeda. Love, Alberto." Could we possibly get the Attorney General to send a memo like that to him? Maybe Senator Feingold is worried that when the next president comes in, he might accuse those in the Senate like himself, Kennedy, Boxer, Kerry, Schumer, and Biden of collaborating with the enemy as a third-party. (Why not? After 2008, they may be the third party.)
All kidding aside, while I was not happy to see the White House compromise, the bill itself sounds like a solid one. Now, it must go to the House. Yes, the Senate is not the only part of congress that gets a chance to weigh in on this. They are not, as Hugh pointed out, a potted plant. And we have similar hopes that when this does go to the House, the leadership there will ensure the Article II powers of the president, and make sure the teeth stay in this bill. The primary teeth I would like to see reinforced in this bill is on leakers.
The bill, in this area, needs to add a little iron tot he velvet glove by reminding the press that it is not above the law. And while Congress cannot legislate away any rights the press has, just as they cannot to the president's enumerated Article II powers, they can provide a solid and powerful reminder to the press that handling "stolen" secrets and publishing them is a crime, and the penalties will be stiffer. After this latest snafu by the LA Times and the New York Times, could they really handle an increase in the fines, or watch their journalists and editors sit in jail until they reveal the leaker?
Please, by all means, laud them as "heroes" like they did to Judith Miller. But those reporters should stay in jail until they open their mouths. This is the iron I refer to. The press is not above the law in this nation. While they may think that the First Amendment grants them such privilege, they are sorely mistaken, and when this bill ends up in the House's lap, they should include that reminder for them.
Marcie
Senator Arlen Specter has been working on a new piece of legislation for the past couple of months. That legislation focuses on the president's Article II powers, especially during wartime, and the scope of the surveiallnce he ordered. Now, our readers know where we stand. The president was well within his purview and restraints when he executed that program theough the NSA. Furthermore, the FISA Court of Review, in it's one and only case, found in favor of the executive on a similar matter in In re: Sealed Case.
The WaPo today has the story on the compromise struck between Senator Specter and the White House. Here are the key paragraphs:
A deal negotiated between the White House and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) came with conditions. Bush is insisting that Congress first give him new leeway in some areas of surveillance and that all lawsuits challenging his eavesdropping policy be funneled to a Washington-based intelligence court that operates in secret. ...
...The legislation would allow the Justice Department unlimited attempts to revise the program to meet the court's approval and would allow it to appeal adverse court rulings. It would also give the NSA in emergency situations a week rather than the current 72 hours to eavesdrop on a domestic target without requesting a warrant, and it would allow the government to send to the FISA court all lawsuits challenging the program's legality. Some suits, filed by groups such as the American Civil Liberties Union, are already pending in various federal courts.
Consolidating lawsuits under the FISA system, Specter said, would prevent federal courts "all over the country" from issuing contradictory rulings on the NSA program. ...
..."The bill recognizes the president's constitutional authority and modernizes FISA to meet the threats we face from an enemy that kills with abandon and hides as they plot attacks," said spokeswoman Dana M. Perino.
But Specter, briefing reporters at the Capitol, said his bill would recognize the president's constitutional powers only in general terms and would make it clear that the administration must defer to judicial restraints. "The proposed legislation acknowledges, as we must, the president's inherent Article II authority," he said. "But when the court makes a decision, the court will make a decision in the traditional context that the president does not have a blank check.
"Unless the court finds it's constitutional," he said of the warrantless wiretap program, "it cannot function." ...
Specter said his intent is to get a "determination on constitutionality of the overall program." He added: "It is suggested, but I do not know, that it is impractical to have individual warrants."
He said the bill would direct the attorney general to tell the FISA court what steps NSA takes to minimize the surveillance program's scope and possible privacy invasions, and to explain "how the program is reasonably designed to ensure that the communications intercepted involve a terrorist, agent of a terrorist, or someone reasonably believed to have communicated or associated with a terrorist."
At the administration's insistence, the bill would impose higher penalties for "officials who knowingly misuse foreign intelligence information."
This is a key piece to the whole piece of legislation. This addition, though not detailed in the WaPo story, should become the number one deterrent to leakers, if the penalties are stiff enough. The president and the administration know that right now they cannot seem to keep a lot of things secret with the press blowing operations and investigations all over their front pages and top-of-the-hour newsbreaks. There have been six major leaks in the last ten months, or so. The WaPo was responsible for two of them and the New York Times had two of them. At this time in history, this is an important issue, and I am happy to see it being addressed.
Specter predicted that Congress will pass his bill, even though its two chambers have clashed over immigration, the USA Patriot Act and other matters. If Congress amends the bill in any way that Bush disapproves, he will not be obligated to submit the wiretap program to the FISA court for review, Specter said. ...
... The White House conceded in part because it believes the NSA program will survive constitutional muster and the Specter bill will make it easier to argue that the program complies with congressional statutes as well. "We've always said it's constitutional," said one administration official who was not authorized to speak on the record.
The language acknowledging the president's constitutional authority to conduct intelligence operations also was important to the White House. "We see it as historic because here's a statute recognizing an authority the president says he has," the administration official said.
Still, that language alone might mean little because it did not define the scope of the authority or explicitly suggest that a president did not need to seek court approval for warrants. But at the same time, Specter agreed to repeal a section of the original FISA law that made it the exclusive statute governing such intelligence programs. ...
For the poor fools at the WaPo, under Article II, the powers of the president to conduct war are virtually limitless. Few challenges have been made through the courts involving the president's wartime powers. The only one coming to mind at the moment is Korematsu in 1944. That case specifically asked if the president and congress had overstepped their boundaries. And that is the key to the president's limit during wartime. Is it legal? The NSA program, the president's authority to order and utilize warrantless surveillance against our enemies, is legal as the FISA Court of Review decided in 2002.
The combination of the statement acknowledging presidential authority and the deletion of the exclusivity clause left open the interpretation that Bush has the power to conduct other surveillance outside FISA's purview, a possibility administration officials noted with approval.
Sen. Russell Feingold (D-Wis.) criticized the agreement, saying he will oppose "any bill that would grant blanket approval for warrantless surveillance of Americans, particularly when this administration has never explained why it believes that current law allowing surveillance of terrorist suspects is inadequate."
Rep. Edward J. Markey (D-Mass.) said: "While I am pleased that President Bush finally has conceded that the domestic surveillance program should be subjected to FISA court scrutiny, this should not exempt the secret program from thorough congressional scrutiny."
Leave it to the senior Democrats to step up and make absolute fools of themselves. A memo to Senator Feingold should read: "Dear Russ, we're not spying on Americans UNLESS they are in contact with al-Qaeda, or they area part of al-Qaeda. Love, Alberto." Could we possibly get the Attorney General to send a memo like that to him? Maybe Senator Feingold is worried that when the next president comes in, he might accuse those in the Senate like himself, Kennedy, Boxer, Kerry, Schumer, and Biden of collaborating with the enemy as a third-party. (Why not? After 2008, they may be the third party.)
All kidding aside, while I was not happy to see the White House compromise, the bill itself sounds like a solid one. Now, it must go to the House. Yes, the Senate is not the only part of congress that gets a chance to weigh in on this. They are not, as Hugh pointed out, a potted plant. And we have similar hopes that when this does go to the House, the leadership there will ensure the Article II powers of the president, and make sure the teeth stay in this bill. The primary teeth I would like to see reinforced in this bill is on leakers.
The bill, in this area, needs to add a little iron tot he velvet glove by reminding the press that it is not above the law. And while Congress cannot legislate away any rights the press has, just as they cannot to the president's enumerated Article II powers, they can provide a solid and powerful reminder to the press that handling "stolen" secrets and publishing them is a crime, and the penalties will be stiffer. After this latest snafu by the LA Times and the New York Times, could they really handle an increase in the fines, or watch their journalists and editors sit in jail until they reveal the leaker?
Please, by all means, laud them as "heroes" like they did to Judith Miller. But those reporters should stay in jail until they open their mouths. This is the iron I refer to. The press is not above the law in this nation. While they may think that the First Amendment grants them such privilege, they are sorely mistaken, and when this bill ends up in the House's lap, they should include that reminder for them.
Marcie
posted by Syd And Vaughn | 9:59 AM
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