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.
Glenn's post on this is one of the most chilling, dismaying things I've read in a long time. As bad as the systematic attack on civil liberties by the Bush administration has been, I had wanted to believe that when push came to shove, Congress would stand up for the Constitution. One absolutely infuriating paragraph reports:
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.
BULLSHIT. The change does not help quell "concerns about the measure's constitutionality." It avoids them. This is unconscionable. If this move succeeds, it will cause lasting, serious harm to the Constitution and our country. How the hell can anyone who serves in Congress believe for a second that this move is either moral or responsible? This move is so transparently vile civility cannot stand. As The Hill reports:
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 Hill article goes on to quote this expert, "Mary Cheh, a law professor at George Washington University who specializes in constitutional law" at some length over the serious problems this move creates.
As Glenn Greenwald points out yet again:
Could anything be more obvious at this point than the fact that the Bush administration deeply fears having the legality of its eavesdropping activities adjudicated by a federal court? They have engaged in one maneuver after the next to prevent that adjudication.
One would think that if they really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.
Specter has sold out the American people and apparently his own conscience. Despite all his talk of oversight, of scrutinizing the NSA program, or grilling Bush's nominee to head the CIA, General Michael Hayden, when the time for meaningful action comes, Specter backs down. This is the man who refused to put Attorney General Alberto Gonzales under oath even after Gonzales had clearly lied to Congress. If Jack Cafferty's right that Specter "might be all that stands between us and a full blown dictatorship in this country," we are in deep trouble.
No reasonable person objects to hunting down terrorists. And there may be some far right politicians who truly believe the currently illegal NSA programs should be legal. This move has nothing to do with that, however, because it seeks to avoid having that discussion in the courts. This move is about avoiding accountability and protecting political power, nothing more. The politicians pushing for this are trying to avoid a greater scandal, greater public backlash, and personal embarrassment. Ironically, in their attempt not to look bad, they're revealed themselves as utterly craven. They're conducting a fundamental assault on American democracy for short-term political gain. The danger of this cannot be overestimated and no rhetoric opposing it can be too alarmist. The center cannot hold. It has been ransacked by the right.
The Hill article reports that more than 20 cases are "in the pipeline" that could challenge the NSA program, although if this GOP legislation passes, those cases will face an uphill battle. Let's hope Specter and other key Republicans rediscover their souls before then. In the meantime, it's time for some progressive activism.