Posted on 05/16/2006 12:04:06 AM PDT by RWR8189
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and conservative members of his panel have reached agreement on legislation that may determine the legality of the National Security Agency’s (NSA) surveillance program, GOP sources say.
Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.
Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.
Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense.
An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.
The agreement appears to pave the way for the committee to approve Specter’s bill and one sponsored by Sen. Mike DeWine (R-Ohio) granting the surveillance program legal authority. GOP aides say the chances of the bills’ reaching the Senate floor this year are unknown because of a crowded schedule and the dwindling number of workdays left this session.
Legal standing is a crucial question in every case heard before a federal court. Lawyers and legal experts widely acknowledge that a plaintiff cannot bring a case to a federal court if the plaintiff has not suffered damage.
In other words, individuals or groups that merely take an interest in a case, such as a privacy-rights advocacy group in the example of the surveillance program, cannot ask for a ruling from a federal court. Because the administration can use questions of standing and other tactics to keep plaintiffs out of court, the requirement that a plaintiff challenge the surveillance program — instead of mandating that the administration itself ask for a ruling on the program’s legality — gives the White House an important advantage.
In return for Specter’s concession, Republicans skeptical of his bill have agreed that the FISA court should have jurisdiction over challenges to the surveillance program. This would make a legal judgment more likely because the administration is thought to be more willing to share evidence and information in the FISA court than in courts open to the public.
Mary Cheh, a law professor at George Washington University who specializes in constitutional law, secrecy and national security, said that only allowing the judiciary to review a challenge to the surveillance program in response to a plaintiff’s challenge gives the administration legal cover.
“Of course the administration is going to throw up all sorts of obstacles to a court ever hearing them,” she said, referring to plaintiffs’ challenges.
Cheh said plaintiffs would likely have to jump over very high hurdles to have their cases heard. The administration could, for example, invoke the “state-secrets privilege” and deny plaintiffs access to information, or it could try to deny plaintiffs’ legal standing. Cheh said it would be difficult for plaintiffs to demonstrate in court that they have been injured by the surveillance program because the program is secret.
If plaintiffs are challenging the legality of evidence gathered against them through the NSA program, the administration could avoid a legal ruling on the program by dropping plans to use the controversial evidence or dropping the case.
But a GOP aide familiar with the compromise said more than 20 cases are “in the pipeline” in which plaintiffs have challenged the surveillance program. It was very likely that the court would rule on one of the cases if Specter’s bill passed, the aide added.
Cheh noted that administration lawyers could file a future motion to challenge any of the plaintiffs’ standing.
Republican Sens. Chuck Grassley (Iowa), Jon Kyl (Ariz.), Jeff Sessions (Ala.), John Cornyn (Texas) and Tom Coburn (Okla.) were said to have concerns about Specter’s bill. All are members of the Judiciary Committee, and their support is crucial to passing NSA-related legislation though the panel because Democrats say it is premature to pass a bill until more details of the surveillance program are known.
Since the program’s existence became known last year, Democrats have called for greater disclosure of its details, something the Bush administration has resisted.
Sen. Orrin Hatch (R-Utah), a senior member of both the Judiciary and Intelligence committees, said he would support Specter’s bill because it doesn’t “tie the hands of the administration” or force it to “waive its rights.”
Republicans say that under the new compromise all Republicans on the Judiciary Committee are expected to support the Specter bill. Support for that legislation is seen as smoothing the way for the DeWine bill. Several Judiciary Committee Republicans have demanded that either both bills pass out of committee or nothing NSA-related does.
Specter, meanwhile, has declined to comment on the specifics of his negotiations with conservatives.
“We are working close to an agreement on the Republican side as to my bill, and I would like to move ahead with Senator DeWine’s bill and Senator Schumer’s bill at the top of our agenda next week,” Specter said during an executive session of the Judiciary Committee last Thursday. Sen. Charles Schumer (N.Y.) is a Democratic member of the committee.
The panel had been expected to mark up Specter’s and DeWine’s bills Thursday but, instead, the committee will work on legislation on same-sex marriage. Two prominent conservative leaders, Dr. James Dobson of Focus on the Family and Tony Perkins of the Family Research Council, met Senate Majority Leader Bill Frist (R-Tenn.) and Assistant Majority Leader Mitch McConnell (R-Ky.) last week.
The delay of the markup on the NSA-related bills could imperil the compromise on the Specter and DeWine bills. The longer the agreement has to last before committee action, the more likely it is to be mulled over and picked apart, a GOP aide said.
Why does Specter need to do anything to get us probably bombed?
He has to feel that he is important.
Maybe specter should just give it up and retire where he is most comfortable--Scotland.
He seems to over react before he thinks things through.
Spector needs to 'strike' the streets looking for another job
What does DeWine's bill say?
"What does DeWine's bill say?"
just a quick search narrows it down:
"The administration lobbied to avert full-blown congressional investigations into the program earlier this year. However, one pending Senate bill would bring it under the auspices of the FISA court, while another, sponsored by Sen. Mike DeWine (R-Ohio), would allow the warrantless wiretaps to continue only if the administration explains its reasoning to a small group of lawmakers."
http://www.washingtonpost.com/wp-dyn/content/article/2006/05/10/AR2006051002106_pf.html
NY and NJ commuters
The lawyer tyrants are insisting they have a role to play in national security.
Dead lawyers....good lawyers
Because he thinks he is more important then the President
So glad the GOP reassured us that Specter would behave himself after the 2004 elections.
Consequently, [A.S. Hudson -- administrator of the Fort Lincoln Detention Station] sought authorization to bring in a full-time German-speaking intelligence officer to eavesdrop on the detainees and to gather information on the nearby populace.Some of the citizenry, he feared, might assist in escape attempts. Intelligence work, he argued, should also include examination of the detainees' incoming and outgoing mail in order to determine their attitudes.
On the basis of this opinion, Hudson and his staff set up index cards for each detainee, recording on them the names and addresses on all outgoing mail and the writers' names, addresses, and dates of arrival on all incoming mail. This practice would soon become standard procedure at all the INS camps.
A sampling of mail was to be opened and read. In addition, the chief patrol inspector ordered incoming packages inspected for unspecified contraband prior to delivery to the Germans.
If they have concerns about the bill it needs to be thrown out.
Please note the ONLY dates this issue has been debated is when there is a REPUBLICAN in the WH.
Can the President constitutionally authorize such wiretaps? Here is what the courts have consistently held.
"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence." --United States v. Brown, 484 F.2d 418, 426 (1973)
"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance." --U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)
"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment." --United States v. Duggan, 743 F.2d 59 (1984)
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information." --In re Sealed Case, 310, F3d. 717, 742 (2002)
And in a contest between the Constitution and the laws of Congress, who wins?
"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power." --In re Sealed Case, 310, F3d. 717, 742 (2002)
Thanks to Boot Hill!
That treasonous, liberal RINO scumbag is even qualified to flip burgers.
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