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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, September 16, 2006

Arlen Specter is lying about his own bill -- again

In June, both the ACLU and The Washington Post's Walter Pincus reported that the FISA bill proposed by Arlen Specter would expressly immunize Bush officials from any legal consequences arising out of their illegal eavesdropping -- giving them what Pincus called "blanket amnesty" -- by retroactively legalizing warrantless eavesdropping going back to 1978. But that weekend, Specter went on CNN with Wolf Blitzer and categorically denied that his bill contained any such provision, stating:

Absolutely not. That was an erroneous report. If anybody has violated the law, they'll be held accountable, both as to criminal conduct and as to civil conduct. And in no way did I promise amnesty or immunity or letting anybody off the hook.

At the time of Specter's denial on national television, there was no copy of his bill available online, so I actually wrote a post aggressively criticizing Pincus for his erroneous claim, because I assumed that Sen. Specter (due to self-interest, if for no other reason) would not go on national television and categorically deny that his bill contained what amounts to a Congressional pardon for the administration if it really did contain such a provision.

But once a copy of Specter's became available that week, it turned out that Specter's bill did contain the very blanket amnesty provision which he falsely denied on national television he was offering. As I wrote at the time, the Post and the ACLU were completely correct and Specter -- in order to make his bill seem less draconian than it really was -- simply lied about what his own bill said (that express amnesty provision was thereafter removed from the bill, though the effect of the current Specter bill might be the same).

In order to manipulate enactment of his FISA bill this week, Specter is lying again about his own bill. I have a high threshold for using the word "lie"; I try to avoid it whenever possible and use it only when there is no other accurate description for someone's conduct. That is the case here.

There are currently pending around the country various lawsuits against the Bush administration (and telecom companies) which allege that the President's NSA program is both unconstitutional and a violation of the criminal law. In one of them, the court (Judge Taylor's case) has already ruled that the program is unconstitutional and a violation of FISA. The Bush administration has been trying to get all of those cases transferred away from the various federal judges presiding over them and moved to the secret FISA court in Washington.

One of the criticisms which many people have made of Specter's FISA bill is that it grants the administration's wish by simply stripping these cases away from the judges currently deciding them -- several of whom have demonstrated hostility to the administration's claims (such as Judge Taylor in Michigan, Judge Walker in San Francisco, and Judge King in Oregon) -- and sticking them all behind a wall of secrecy in the FISA court (and then, after that, restricting appellate review and adding on new, possibly insurmountable hurdles for the plaintiffs to overcome).

I have repeatedly highlighted these court-stripping provision as one of the most objectionable aspects of the Specter bill -- here, for instance -- because it places judicial proceedings on these vital questions behind a secrecy wall (even the decision itself could be kept secret) and is also a blatant attempt by the administration to strip these federal judges of jurisdiction because they have shown that they will not just obediently accept any claims the administration makes.

On Thursday, though, Arlen Specter went to the floor of the Senate to defend his bill and he outright denied that his bill compels transfer of those cases to the FISA court. This is what he said (h/t EJ and Obijuan):

We will be moving ahead, I hope shortly, with the leader calling the bill to the floor so that we can make a determination on judicial review to see to it that whatever wiretapping is going on is judicially approved. It may be that some cases will come up collaterally. There are a number of cases in district courts. The one in Portland may have standing.

I do not propose, in my legislation, to strip any court of jurisdiction where a case has been started and has proceeded. I think, in the course of business, the matters ought to be referred to the FISA court, but not for any jurisdiction stripping where courts have proceeded.

That is just false - undeniably, unambiguously false. Here is the version of the Specter bill reported by the Judiciary Committee. Section 702(b) is entitled "Mandatory Transfer for Review," and this is what it says (emphasis added):

In any case before any court challenging the legality of classified information intelligence activity relating to a foreign threat, including an electronic surveillance program, or in which the legality of any such program or activity is in issue, if the Attorney General files an affidavit under oath that the case should be transferred to the Foreign Intelligence Court of Review because further proceedings in the originating court would harm the national security of the United States, the originating court shall transfer the case to the Foreign Intelligence Court of Review for further proceedings under this subsection.

Specter's bill mandates that "any case" challenging the legality of the NSA program be transferred to the FISA court, not only cases commenced in the future. The administration already filed a Motion (with the Multidistrict Litigation Panel) requesting that all NSA cases be consolidated in the FISA court a federal district court in the District of Columbia -- a move which deservedly backfired when that Panel denied the administration's request and, instead, ordered all such cases consolidated with Judge Walker in San Francisco, who was the first judge (of three) to reject the administration's claim that no court could review the legality of the NSA program because to do so would risk disclosure of "state secrets."

That's why it is so important to the administration to have all of these cases yanked away from these judges who have shown independence and a willingness to scrutinize the administration's claims. The Specter bill does exactly that, and Specter's denial that it does -- on the floor of the Senate -- is nothing more than a rank, indefensible falsehood.

And then there is the core dishonesty which lies at the heart of Specter's defense of his bill. In his Senate floor speech, Specter admitted that "there is no doubt that the President's program violates the Foreign Intelligence Surveillance Act, which purports to be exclusive." But ever since the bill was announced, Specter has been trying to depict his humiliating capitulation to the White House as some sort of victory, and to do so, he has continuously touted one perversely hilarious claim -- namely, that he extracted the oral commitment from the President to "consent" to having the NSA program "submitted" to the FISA court for judicial review. He made that same claim on Thursday on the Senate floor:

What I have sought to accomplish is to have this program reviewed; and the President has made a commitment, confirmed by the White House, that this program will be submitted for judicial review.

The level of ignorance and stupidity required to believe this is so extreme that it's actually offensive. In case Specter hasn't noticed, the NSA program is already "submitted for judicial review" -- in Michigan, San Francisco, Oregon and numerous other places. Specter's bill does not increase the likelihood of judicial review. It does the opposite -- it restricts what can be judicially adjudicated to the mere constitutionality of the program (as to opposed to the question of whether the President's lawbreaking was without a defense), and it makes judicial review more difficult in numerous ways.

The President's "consent" is completely irrelevant to having this program submitted for judicial review. In this country, courts can review the legality of the President's conduct with or without the President's "consent." Specter's claim that he won this "concession" from the President would be like him reaching an agreement with the President where the President agreed that from now on, decisions about how monies will be appropriated will be made by the Congress -- or Specter excitedly announcing that he forced to President to magnanimously agree that from now on, the President's nominees for the Supreme Court have to be approved by the Senate.

The President's warrantless eavesdropping is already submitted for judicial review -- neither Specter's bill nor the President's consent is required in any way for that, nor would it help that process along. It would do the very opposite, just as intended, by making judicial review infinitely more difficult and shrouding the whole process with a cloud of secrecy. Specter obviously knows what a complete travesty -- a total capitulation -- his bill is, which is why he feels the compulsion to so blatantly misrepresent its contents.

UPDATE: There is one slightly more technical but (at least) equally important false claim Specter keeps advancing. In his Senate speech, Specter said: "There has been a contention raised that there is an inconsistency between Senator Feinstein's bill, S. 3001, and my bill, S. 2453, and it is not true. The provision in Senator Feinstein's bill says that the FISA is the exclusive means for wiretapping. That is true, unless the statute is superseded by a constitutional provision."

That is exactly, appallingly wrong. The Specter bill is, in the most critical respect, the polar opposite of the Feinstein bill. The Feinstein bill purports to restrict the President's eavedropping powers by making clear that they can be exercised only within the FISA framework. By contrast, the Specter bill expressly states the opposite -- that it does not seek, in any way, to limit or restrict the President's eavesdropping powers. They are exact opposites on this most vital point. Compare Sec. 101 (a) of the Feinstein bill (FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted") with Sec. 801 of the Specter bill ("Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers").

Specter's claim that they are consistent is a by-product of his much-documented, continuous inability (or deliberate refusal) to understand one of the most critical and basic principles of constitutional law -- that the mere fact that the President has a particular power under the Constitution does not mean that Congress is unable to restrict or regulate that power. That is the whole point of Hamdan and Youngstown -- that where there is a conflict between a President's constitutional power (such as the right to try war detainees by military commissions) and Congressional restrictions on that power (such as a law requiring that all such military commissions comply with the laws of war), the President's power is subject to Congressional law.

Feinstein's bill deliberately creates that Youngstown/Hamdan conflict by requiring the President's eavesdropping powers (such as they are) be exercised only in compliance with FISA, whereas Specter's bill deliberately eliminates that conflict by specifying that there is no intent to regulate or restrict the President's eavesdropping powers in any way. Specter's belief (or claimed belief) that a President's constitutional power cannot be regulated by Congress is undebatably false. To say that the two bills are consistent requires either an embarrassing lack of understanding of this basic constitutional principle or a decision to purposely ignore that principle. I honestly don't know which it is, but whichever it is, Specter's central argument on the most crucial issue in this debate is just factually, demonstrably wrong.

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