Decision ‘08

Specter’s NSA Hearing

Two pieces of Republican legislation are battling it out to see which will be the first to explicitly legalize Bush’s NSA surveillance. Arlen Specter held hearings yesterday to bolster his case that FISA remains the best regime for the job:

Judge [Harold A.] Baker and three other judges who served on the intelligence court testified at a Senate Judiciary Committee hearing in support of a proposal by Senator Arlen Specter, Republican of Pennsylvania, to give the court formal oversight of the National Security Agency’s eavesdropping program. Committee members also heard parts of a letter in support of the proposal from a fifth judge, James Robertson, who left the court last December, days after the eavesdropping program was disclosed.

…Mr. Specter’s proposal seeks to give the intelligence court a role in ruling on the legitimacy of the program. A competing proposal by Senator Mike DeWine, Republican of Ohio, would allow the president to authorize wiretaps for 45 days without Congressional oversight or judicial approval.

Judge Robertson made clear that he believed the FISA court should review the surveillance program. “Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way,” he wrote.

But Judge Robertson argued that the court should not conduct a “general review” of the surveillance operation, as Mr. Specter proposed. Instead, he said the court should rule on individual warrant applications for eavesdropping under the program lasting 45 or 90 days.

Acknowledging the need for secrecy surrounding such a program, he said the FISA court was “best situated” for the task. “Its judges are independent, appropriately cleared, experienced in intelligence matters, and have a perfect security record,” Judge Robertson said.

He did not weigh in on the ultimate question of whether he considered the N.S.A. program illegal. The judges at the committee hearing avoided that politically charged issue despite persistent questioning from Democrats, even as the judges raised concerns about how the program was put into effect.

Judge Baker said he felt most comfortable talking about possible changes to strengthen the foreign intelligence law. “Whether something’s legal or illegal goes beyond that,” he said, “and that’s why I’m shying away from answering that.”

The more permissive Dewine legislation would, of course, be the Administration’s preference, as illustrated by the following reporting by Byron York:

After the hearing, Specter said he had discussed his oversight proposal with the administration. But in a brief interview with reporters, he suggested that he is not getting much cooperation from the White House.

“I’ve talked to the attorney general about it, and I talked to Harriet Miers about it.”

“What is their position?”

“Their position is that the president has the inherent authority, and that’s that — the authority under Article Two.”

“Are they relying more on Article Two these days, rather than on the authorization for military force?”

“Yes. I think they’ve pretty much abandoned that preposterous argument. They may have an argument under Article Two, but they don’t have an argument, really, under the force resolution.”

“How could they satisfy you that they’re right under Article Two?”

“Trust somebody in addition to Sen. Hatch with the program.”

Specter also discussed a conflict with Judiciary Committee Democratic Sen. Russell Feingold over Feingold’s call to censure President Bush. Specter has scheduled a committee hearing for Friday on the censure resolution, but he said Feingold has asked that it be delayed.

“He says he’s going to be someplace else,” Specter said of Feingold. “I don’t know if I can have a hearing without him, and my instinct is, I’m offering him a hearing, and if he doesn’t take it, he’s not going to have a hearing.”

A frustrated Specter seemed to hint that, in order to pressure Feingold to go along with the hearing on Friday, he, Specter, might threaten to hold a committee vote on the censure resolution on Thursday. Faced with that situation, he suggested, Feingold might decide to be there on Friday. “I’d like to put it on the agenda,” Specter said. “We could vote on the censure resolution on Thursday. I’m going to put it on the agenda and try to vote on it.”

“This Thursday?”

“Yes. I’d like to bring the matter to a head. That may produce a Friday hearing — you know cause and effect?”

Late Tuesday, Feingold denied that he had asked that the hearing be delayed. “There is no truth to the claim made today by Chairman Specter that I have asked for a postponement of Friday’s hearing on the censure resolution, and I am very puzzled how the chairman could have reached that conclusion,” Feingold said in a statement. “I hope the chairman is not backing away from his commitment to hold the hearing on Friday morning.”

Glenn Greenwald, uncharactistically, could care less:

From the bits and pieces I’ve subjected myself to thus far, it appears that their [the former FISA judges] purpose is to heap praise on Sen. Specter’s “new legislation” and drone on about how the Constitution clearly allows Congress to grant the President broad eavesdropping powers for foreign intelligence purposes without having to bother with case-specific probable cause showings.

That is, of course, the exact opposite of what Judge Robertson said…

2 Responses to “Specter’s NSA Hearing”

1 Fred Says:
March 29th, 2006 at 10:54 pm
Actually, Congress doesn’t have “to grant the President broad eavesdropping powers for foreign intelligence purposes without having to bother with case-specific probable cause” as he already has that power via the Constitution:

FISA judges say Bush within law

By Brian DeBose
THE WASHINGTON TIMES
March 29, 2006

“A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president’s constitutional authority to spy on suspected international agents under executive order.

“If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute……..”

http://washingtontimes.com/national/20060329-120346-1901r.htm
2 Mark Says:
March 29th, 2006 at 10:56 pm
Amazing the NY Times didn’t see fit to include that quote, isn’t it?…